For years, practitioners in North and South Carolina have been the victims of a forced marriage with the Atlanta Immigration Court and the 11th Circuit Court of Appeals.  In late 2008, we finally got our own Immigration Court in Charlotte, NC.  Yesterday, the BIA issued its first precedent decision originating from the Charlotte Immigration Court.  And it was a big one…

Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault (which was dismissed by the State of NC) and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana.  

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and AILA Amicus Committee stepped in to provide amicus support.  During this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Yesterday, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D). 

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”  Our work is not done.  The AILA Amicus Committee believes returning to the plain language of the statute means not only overruling Matter of Saysana, but also Rojas.  Like Saysana, Rojas has led to a mountain of litigation and the inconsistent application of our mandatory detention statute nationwide. 

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).   Our committee celebrates the Board’s decision yesterday in Garcia-Arreola, but also looks forward to fully restoring the exercise of discretion in Immigration Court.

 –by guest writer Trina Realmuto at the National Immigration Project

Tired of filing a bond motion and preparing for a bond hearing only to find out that your client has been transferred before the hearing date and the IJ refuses to conduct the hearing due to the transfer?  Well, if you practice in the Carolinas, Kentucky, or another of the many jurisdictions where this routinely happens, you’re likely to be fed up. 

The practice of moving a detainee after a bond hearing is requested and scheduled but before it can take place impedes your ability as an attorney to represent your client.  It forces you to file subsequent bond motions in other immigration courts and travel to the location of the new hearing (or wait on the phone for hours for a telephonic bond hearing), and has a draconian impact on detainees, many of whom cannot afford to pay for additional filings and removal representation, post bond, and put food on the table.  And, significantly, detainees, including those who ultimately are granted bond, have spent additional days, weeks, and months simply waiting for a rescheduled bond hearing to take place.  Why?

Well, it all boils down to the interpretation of 8 C.F.R. § 1003.19(c), the regulation saying that a detainee’s bond hearing request shall be filed where the person is detained.  Advocates say that, as long as the request is filed with the immigration court having administrative control of the place of detention at the time the request is filed, the detainee has complied with this procedural regulation and the bond hearing should go forward even if the detainee has been transferred (provided, of course, that the detainee consents to waive his/her appearance at the hearing).  Interpreting the regulation in this way, advocates argue, would comport with the regulation’s language and purpose, facilitate prompt bond hearings, and improve access to counsel, including communication between attorneys and detainees.

On the other hand, DHS claims that the regulation is jurisdictional and that a bond hearing can never go forward without the person present in the assigned area of responsibility.  DHS does not argue that the detainee must be present at the bond hearing.  DHS, nor does DHS agree that a detainee can waive his or her own presence to allow the bond hearing to take place sooner.  Rather, DHS stoically asserts that a detainee must be physically located within the court’s assigned geographical area for any immigration court to exercise jurisdiction.

The Board of Immigration Appeals has an opportunity to set forth its interpretation of the regulation as, earlier this year, a North Carolina immigration judge asked the BIA to hear the issue on certification.  Briefing in the case was completed on May 27, 2010.  The National Immigration Project of the National Lawyers Guild, along with the Maxwell Street Legal Clinic and the Southern Coalition for Social Justice, filed an amici curiae brief in support of the respondent, who is represented by Jeremy McKinney. 

We hope that the BIA will rule favorably on this important issue.  In the meantime, readers with a case presenting this issue are encouraged to contact Trina Realmuto at the National Immigration Project (trina@nationalimmigrationproject.org) as the Project has a practice advisory, model brief, and sample bond hearing requests available on its website and is monitoring this issue.

On December 23, 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act.  William Wilberforce was an English abolitionist who waged a battle for twenty-six years to end the slave trade in England.  His efforts resulted in the Slave Trade Act of 1807 that abolished slave trade in British Empire and, then, in 1883 the abolishment of slavery in the British Empire.

The TVPRA does many notable and important things as explained by Deborah Lee, Manoj Govindaiad, Angela Morrison, and David Thronson in this practice advisory. Here at Immigration Slip Opinion, we would like to draw your attention to section 235(d)(7) of the TVPRA which provides:

–

(7) ACCESS TO ASYLUM PROTECTIONS- Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended–

(A) in subsection (a)(2), by adding at the end the following:

`(E) APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).’; and

(B) in subsection (b)(3), by adding at the end the following:

`(C) INITIAL JURISDICTION- An asylum officer (as defined in section 235(b)(1)(E)) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section 235(b).’.

–

Under 235(d)(7)(B), if unaccompanied alien child files an asylum application, the Asylum Office gets review no matter where in the process the child’s case may be.  The Asylum Office published this guidance memo with the details on the “initial jurisdiction” change.

We haven’t seen any guidance on section 235(d)(7)(A), though.  This section adds a new line to the end of the “Exceptions” paragraph in the asylum statute.  As amended, the asylum statute reads:

–

INA 208(a)(2) Exceptions. -

(A) Safe third country….

(B) Time limit. – Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of alien’s arrival in the United States.

(C) Previous asylum applications…..

(D) Changed conditions….

(E) APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).

–

As we read the asylum statute as amended, it seems that any noncitizen who holds the status of an unaccompanied alien child at any time during the one-year period after his or her entry into the United States United States in the status of an unaccompanied alien minor is never subject to the one-year filing deadline.  If we understand it correctly (and we think we do), an UAC who later turns 18 or marries or waits many, many years can always file for asylum.

The statute seems plain on this point.  First, section 235(d) of the TVPRA states that the enactment is intended to provide “permanent protection for certain at-risk children.”  Second, the amended statute states simply that the time-bar “shall not apply”.  Unlike TVPRA 235(d)(7)(B) that grants initial USCIS jurisdiction to asylum applicants who are UAC’s at the time of filing, TVPRA 235(d)(7) (A) has no such limitation.  The asylum statute already contains a provision that accounts for minority status when considering whether an exception to the time-bar applies — that’s in INA 208(a)(2)(D).

We are watching for cases that might raise this issue.  We identified one at the Board, but they remanded it without a decision for additional proceedings.  If you have a case that raises this issue, please consider contacting the AILA Amicus Committee.

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The mess that is Arizona’s Senate Bill 1070 is under legal attack.  The case is  Friendly House v. Whiting, 10-CV-01061-JWS.  On June 4, 2010, the plaintiffs represented by an impressive group of lawyers from the ACLU, NILC, MALDEF, Asian Pacific American Legal Center, the NAACP, the National Day Laborer Organizing Network, and the private firm of Munger, Tolles, & Olson filed a preliminary injunction seeking to prevent SB 1070 from taking effect on July 29, 2010 — the date it becomes effective.  Several organizations maintain updates on the case: MALDEF’s updates, ACLU’s updates,  NDLON’s Arizona Campaign, NILC’s updates.  The Immigration Policy Center of the American Immigration Council has written and researched extensively on SB 1070 with the most recent piece called a Q&A Guide to Arizona’s New Immigration Law (PDF).

AILA, along with numerous other organizations, filed amicus briefs in support of the preliminary injunction.  As we write, more briefs are being filed.  Here, we recap some of the key briefs and the key arguments they present:

The amicus briefs filed included an incredible number of voices expressing their concerns regarding the enactment of S.B. 1070. Numerous different groups filed, including the American Immigration Lawyers Association (AILA), International Longshore and Warehouse Union (ILWU), National Council of La Raza (NCLR), Legal Momentum, and the Lawyers’ Committee for Civil Rights Under Law (LCCRUL). While the overall message presented is unified against the law, each organization applied its particular expertise to provide unique insights for the reasons why S.B. 1070 is impracticable and unconstitutional.

AILA’s brief articulates its concerns regarding the mechanisms by which law enforcement will identify immigrants that it deems removable. AILA is fearful that local authorities will misapply federal immigration laws.  This is problematic because immigration is a federal issue and determining removability requires a legal determination which local police are largely unqualified to make. Additionally, the enactment of the Arizona statute indicates that the state is unsatisfied with federal programs meant to identify undocumented immigrants, and the state is taking it upon itself to remedy the situation—expending its own resources and utilizing local law enforcement agents who have little or no training in regulations pertaining to immigration law.

The amicus brief filed by the ILWU detailed why S.B. 1070 is unconstitutional because it violates Equal Protection, freedom of speech, Due Process under the Fourteenth Amendment, the right to seek employment under the Fifth and Fourteenth Amendments, and is preempted by federal statute.  Additionally, it is unconstitutionally vague, making its enforcement impracticable.

The NCLR focused its attention on how the new law in Arizona will affect immigrants’ access to benefits such as public education, medicine, and proper nutrition. Additionally, its brief addresses the discriminatory animus of S.B. 1070 and how it will affect Latinos—not only as individuals but also as business owners. The NCLR also notes that the new law draws little attention to the large population of Canadians that spend their winters in Arizona, some of whom may have an undocumented status in the U.S. Additionally, the NCLR also addresses the probable increase in violent crimes perpetrated against vulnerable undocumented immigrants due to their fear of approaching authorities to report crimes, which directly contradicts Congressional intent in enacting the T and U-visas.

Legal Momentum expanded on the importance of protecting victims of crime, detailing that S.B. 1070 will affect Arizona families, particularly those that are victim to abuse. Undocumented immigrants will fear law enforcement officers and refrain from asking them for help to prevent their own or a family member’s deportation. Many U.S. citizens that are children of immigrants live in Arizona, and if their parents are deported, they are left in the country with few options. Either stay separated from their family or chose to leave their home. 

Finally, LCCRUL filed a brief detailing that S.B. 1070 violates the fundamental right to travel. This unconstitutional burden on travel creates two classes of citizens—citizens that are able to prove their citizenship and those that lack access to the necessary types of documentation needed to meet the requirements listed in S.B. 1070. Some groups (such as American Indians) may have documentation that satisfies the requirements of adequate identification as required by the statute, but may not actually qualify as U.S. citizens. Certain states, such as New Mexico and Washington, award driver’s licenses to individuals without requiring proof of citizenship, and individuals from these states may be detained when entering Arizona. This would make these individuals targets of law enforcement officials who are required to detain undocumented individuals, causing citizens of these states to be treated differently than a citizen of Arizona, and thus, violating U.S. citizens’ fundamental right to travel.

The different voices represented by the amicus briefs filed in support of the Plaintiffs in Friendly House v. Whiting creates an amalgam of information that clearly establishes why S.B. 1070 should be enjoined. The Arizona statute is impracticable and a liability for local law enforcement agencies and the discrimination and bias it produces will negatively impact immigrant families—citizens and non-citizens alike.

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have published decisions on the Visa Waiver Program and eligibility for adjustment of status.  We review those cases here, describe several open questions, and invite readers to contact the AILA Amicus committee with pending cases raising these issues (or other issues we’ve missed).  If you are in a circuit that has not spoken on the issue and are briefing or filing a petition for review, AILA Amicus may be interested in participating in your case.

The state of the circuit law, while uniform, is dispiriting.  The leadings cases are: Bradley v. Attorney General, — F.3d –, 2010 WL 1610597 (CA3 April 22, 2010);  McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6^th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010);  Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and  Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

The legal question is seemingly straightforward: can a VWP entrant who is admitted to the United States under the authority of § 217 seek adjustment of status under § 245(a) as an immediate relative?

At the outset, we wish to make clear our views that notwithstanding some rumblings from some USCIS field offices (and contrary to HQ policy), USCIS retains jurisdiction to adjudicate VWP entrant adjustment applications – even those filed passed the 90-day period of authorized stay.  In fact, USCIS retains jurisdiction to adjudicate the VWP entrant adjustment application even after a removal order is entered.  The questions presented in the circuit court cases involve an ostensible conflict between §§ 217 and 245 that both preclude and provide for adjustment as a defense to removal.  The ostensible statutory conflict does not implicate USCIS authority.  By regulation, jurisdiction over an adjustment application rests with USCIS unless EOIR has jurisdiction. 8 C.F.R. § 245.2(a)(1).  EOIR only has jurisdiction when removal proceedings are extant. 8 C.F.R. § 1245.2(a)(1).  Asylum-only proceedings are not considered removal proceedings, Zine, 517 F.3d at 543, and VWP entrants are not entitled (normally) to removal proceedings.  Accordingly, asylum-only proceedings or the unconventional removal process for VWP entrants would not withdraw USCIS jurisdiction.

USCIS field offices continue to adjudicate (as they should) VWP entrant adjustment applications filed past the 90-day period.  We are aware of the language in both Momeni and Bayo that, out of context, suggests otherwise. Momeni, 521 F.3d at 1096-97; Bayo, 593 F.3d at 507.  But we think that Judges Kleinfeld and Wood were more interested in literary flair rather than a legal statement.  AILA Amicus encourages readers to contact us or your AILA Chapter Chair if a local policy is different or changes. See also AILA Spring 2007 ICE Liaison Minutes (March 20, 2007) (providing for case by case determination if a VWP applicant will be permitted to proceed through adjudication); Shabaj v. Holder, 602 F.3d 103 (CA2 2010) (applicant permitted to seek affirmative adjustment after § 217 removal).

The legal fight involves § 217’s requirement that all VWP entrants waive their rights to a conventional removal hearing under § 240 and not contest removal (unless seeking asylum).  Litigants have mounted three types of challenges.

Challenges to § 217(b)’s Waiver of Rights Requirement

The Seventh Circuit decision in Bayo describes the challenge. A citizen of Guinea, Mr. Bayo entered the U.S. on the VWP fraudulently with a stolen Belgian passport. When Mr. Bayo married a U.S. citizen more than four years later and applied for adjustment of status, DHS was able to link him to the stolen passport and ordered him removed without a hearing because he entered under the VWP and waived his right to such procedural due process. Mr. Bayo claims he did not understand English and he should not be subject to the waiver of his rights as a result.   The Seventh Circuit held that since Mr. Bayo was waiving the right to a hearing to contest his removal he was waiving a constitutional right guaranteed to immigrants.  Such a waiver must be knowing and voluntary. This must be so because there are noncitizens such as trafficking victims with strong and sympathetic claims to stay in the United States who must have some process to assure that VWP waivers are knowing and voluntary.  The Seventh Circuit expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given the advent of ESTA (see below).

In Bradley, the petitioner likewise challenged the knowing and voluntary aspect of his waiver claiming that he was intoxicated when he entered into it.

In both Bayo and Bradley, the circuit courts ruled against the litigants on the basis that neither could prove prejudice for the violation of the constitutional right.  As such the procedure necessary to ascertain if a waiver is knowing or voluntary described as necessary in Bayo has not yet been developed.

Challenges to § 217(b)(2)’s No Contest Provision

Litigants have challenged the scope of the no contest clause as applied to immediate relative adjustments citing to § 245(c)(4)’s language barring adjustment applications for individuals “other than an immediate relative”.  Scope challenges fall into three categories.

The first category involves a blanket challenge to the no contest provision as inapplicable to immediate relative adjustment of status applications no matter when filed.  Under this theory, the no contest provision’s scope is limited by § 245(c)(4)’s language and does not preclude a defensive adjustment application.  For example, in Zine, the petitioner sought to have his immediate relative adjustment application considered in removal proceedings.  He had sought asylum affirmatively, his asylum application was denied, and asylum-only removal proceedings were commenced.  While in asylum-only proceedings, he married and sought to reopen his removal proceedings to seek adjustment before the Immigration Court.  The IJ and Board denied his motion.  He was in asylum-only proceedings and the IJ and Board refused to consider his adjustment application.

The second category rests on the claim that an adjustment of status application filed after the 90-day VW period expired but prior to any § 217(b) action is taken to remove the VWP entrant entitles the applicant to an adjudication of the application, and if the application is denied, a hearing before an IJ to renew the application.  Only the cases of Momeni and Schmitt involved applicants who had already been ordered removed under § 217 at the time they applied for adjustment of status.  Additionally, most courts have specifically ruled that precluding an application for adjustment of status that is filed after the 90-day VW period avoids a conflict between § 217(b)’s no contest provision and § 245(c)(4)’s immediate relative exception to the bar on adjustment of status applications following VWP entry.

A third category, also based on the “no conflict argument,” is that § 217(b)’s no contest provision is limited in scope and does not apply to VWP entrants who file for adjustment prior to the expiration of the 90-day VW period.  Under this theory, such applicants are entitled to renew or defend an adjustment application in conventional removal proceedings.  Several of the cases discuss the possibility, e.g., Lacey, 499 F.3d at 519 n6, but only the Ninth Circuit and Tenth Circuits have held so directly.  Freeman, 444 F.3d at 1033-34;  Momeni, 521 F.3d at 1097; Schmitt, 451 F.3d at 1097.

Notably, no court has ever explicitly discussed the effect of § 245(c)(2)’s immediate relative exception to the bar on being in unlawful immigration status on the date of filing the adjustment of status application.  This challenge would involve arguing that § 245(c)(2) and (c)(4) combine to create an immediate relative exception to § 217(b)’s no contest provision where the adjustment of status application is filed after an overstay but prior to a § 217 removal order being entered, because (c)(2) does not create a conflict but rather a specific exception to § 217(b).  The absence of an explicit discussion might not mean much for litigants in the circuits with published decisions, but for others, it remains an open question.

Challenges to Adequacy of the Record

There are different ways of challenging the record, though none of the litigants to date have been successful.  In Bradley, the petitioner argued that the record did not contain contain his signed waiver of rights and that this is an element of the removal ground that must be proven by clear, convincing evidence.  In the Bayo litigation, the authority of the officer to order Mr. Bayo deported was at issue but had not been exhausted by the petitioner and not decided by the Seventh Circuit. The record contained at least three different removal orders in different formats entered at different times by different individuals.  In practice, officers such as a “Deportation Officer” or “Supervisory Detention and Deportation Officer” may enter a removal order under § 217.  The regulations limit the power to order a § 217 removal to only a district director. 8 C.F.R. § 217.4(b).  It was unclear in the record if any of these officers had the authority to issue the removal order. See 8 C.F.R. § 1.1(o) (defining district director).  The record assembled by the agency in unconventional removal proceedings such as § 217 (or reinstatement under § 241(a)(5)) may also be subject to challenge as incomplete or inadequate. See Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (CA9 1989) (“The whole administrative record, however, is not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.”).

The cases seem to be chasing after a moving legal regime as CBP has just announced the elimination of the form I-94W.  Every traveler from a VWP country seeking admission to the United States must now seek pre-travel authorization through ESTA – the Electronic System for Travel Authorization. See AILA Doc. No. 09031863.  The implementation of ESTA raises a whole set of legal questions that we will set aside for another post – including some very interesting constitutional questions and questions involving victims of human trafficking.

by Kathy Moccio

Last summer a Minnesota Public Defender commented that the commonly held notion that immigration matters are collateral to the criminal cases of non-citizens “makes no sense at all. It’s part of their circumstances, just as much as if my client has chemical dependency issues. I have to be aware of that, and I need to give advice based upon what their circumstances are.”

On March 31, 2009 the Supreme Court agreed. In Padilla v. Kentucky, 559 U.S. ____(2010) the Court held that the Sixth Amendment right to counsel requires that non-citizen defendants receive competent immigration advice regarding the deportation risks of a plea. The Court’s recognition that deportation is inherently part of the punishment meted out to non-citizen defendants reflects the reality that immigration penalties are overly punitive. The decision paves the way for necessary changes to ensure the rights of the indigent, and others, are protected.

First, public defenders have notorious caseloads. In Minnesota budget cuts have resulted in attorneys handling double the ABA recommended caseload. Padilla clarifies the role of public defenders requiring them to focus on the immigration consequences that drive their clients’ decisions. While at initial blush this may seem a terrible burden to place on overworked attorneys, it actually frees public defenders to obtain immigration counsel to assist in the negotiation of more favorable plea agreements. This will likely alleviate the frustration and lingering doubt many attorneys struggle with when they negotiate a plea uncertain of its immigration consequences. Furthermore, working with competent immigration counsel enables public defenders to confidently argue for sentences that avoid devastating immigration consequences. The result is more effective and efficient representation which in turn benefits the criminal justice system.

Second, legislative fixes have to date inadequately protected defendants’ rights. State laws that require criminal law judges to warn defendants that a plea may carry immigration consequences amount to a warning to obtain competent immigration advice before entering a plea. Not all defendants are able to hire private immigration counsel. Padilla protects indigent immigrants who would otherwise be forced to plea without a full understanding of the immigration consequences. Furthermore, it protects immigrants who are located in jurisdictions that lack a vibrant immigration bar. This protection is particularly important for detained immigrants who are unable to travel to or call private immigration counsel.

The constitutional right to competent immigration counsel for non-citizen defendants provides needed protections against the deprivation of property, life, or all that makes life worth living. It’s not a radical idea. It’s not using the constitution to create a perfect world. It’s simply an important step towards justice.

We here at Immigration Slip Opinion have been keeping on eye on the BIA. We’ve posted about some recent significant BIA decisions. In this post, we concentrate on issues presently before the BIA that could be resolved by precedent decisions. It’s the Ghost of Immigration Past and the Ghost of Immigration Future.

The BIA has been very busy of late. In addition to an increase in precedent decisions (7 already in 2010; 34 in 2009), it is hearing oral arguments in more cases now than in the past. Recently, it also requested supplemental briefing on specific issues in a number of cases, providing insight into some of its concerns. In one case, it even sought participation of amicus curiae – a request that AILA fulfilled. Here is a summary of what’s brewing at the BIA:

“Aging out” issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21. In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent. After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday. In numerous cases, children enter with only a few days to spare before turning 21. Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable. The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment. A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong. We have asked the BIA to schedule oral argument on this issue and to decide these cases together.

On a related “aging-out” issue, the BIA asked the parties in a CSPA case to submit supplemental briefs on the meaning of the requirement that a child have “sought to acquire” LPR status within one year of visa availability. Both DHS and DOS interpret this requirement narrowly as being limited to filing an application for an immigrant visa or adjustment of status. As explained in an amicus brief that the Immigration Council filed with the BIA, this interpretation conflicts with at least two unpublished BIA decisions, both of which concluded – quite sensibly – that because Congress did not use the word “filed” it could not have meant to limit this phrase to the act of “filing.”

Asylum-related concerns

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief demonstrates that this standard does apply to withholding cases. At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief.

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Matter of Shanu and the meaning of “admission”

In a case that ultimately was dismissed on other grounds, the BIA requested briefing and set oral argument on whether Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), remains viable since it now has been rejected by four courts of appeals. Another case raising Shanu remains pending before the BIA, however, and the Board recently indicated to the Immigration Counsel, amicus in the case, that it would ask for additional briefing and set oral argument in that case instead. Shanu holds that the term “admission” in INA § 237(a)(2)(A)(i)(I) includes “adjustment of status,” a conclusion the courts have rejected as inconsistent with the statutory definition of this term. Section 237(a)(2)(A)(i) provides that a person who is convicted of a crime involving moral turpitude committed within five years after the date of “admission” is removable. As a result, under Shanu, the date of a person’s adjustment may trigger the five year inadmissibility period even if the person previously had a lawful admission consistent with the statutory definition. In its amicus brief, the Immigration Council argues that the statute unambiguously provides that the date of adjustment is not the date of “admission” for purposes of this statute.

Watch for future postings on developments in these and other cases at the Board.

– guest blogging by Mary Kenney, Senior Attorney, American Immigration Council.

In Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), the Board of Immigration Appeals concluded that mandatory detention was triggered when an alien (1) is removable due to one of the triggering offenses listed at INA § 236(c)(1) and (2) the alien is “released” from any non-DHS custodial setting, whether the release is related to the triggering offense or not. To date, the BIA has had a hard time finding one federal judge that agrees with this legal conclusion. Last December, the 1^st Circuit directly rejected the BIA’s decision and agreed that Mr. Saysana was entitled to a bond hearing. Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009). However, the Board’s precedential Saysana decision continues to control in the remainder of the country’s Immigration Courts, a position the AILA Amicus Committee believes is untenable. Why? Because this particular brand of mandatory detention typically preys upon noncitizens who have long put their criminal history behind them and stand the best chance of winning relief before an Immigration Court.

A classic example of this came to the Committee’s attention recently. Luis Felipe Garcia-Arreola was convicted of a drug offense prior to 1996, which made him removable but eligible for INA § 212(c) relief. He was also not subject to mandatory detention because his release from the drug offense pre-dated the effective date of the mandatory detention statute. However, Mr. Garcia-Arreola was arrested last year for misdemeanor assault. The charge was dismissed by the State of North Carolina, but ICE used this “non-DHS custodial encounter” to make an immigration arrest and hold him pursuant to mandatory detention. AILA member Gerry Chapman represented Garcia-Arreola before the Charlotte Immigration Court. In a courageous decision, Immigration Judge Teresa Holmes-Simmons granted bond to Garcia-Arreola and distinguished Saysana. The government appealed the judge’s decision and, for a few days, attempted to enforce an automatic stay of Garcia-Arreola’s detention. The prompt filing of a habeas petition by a member of the AILA Amicus Committee resulted in ICE dropping the automatic stay. Mr. Garcia-Arreola is currently out of ICE custody but his bond appeal remains pending.

In its brief filed in late 2009, the government rehashed their standard mandatory detention arguments. However, earlier this year, in light of the First Circuit’s decision, Immigration and Customs Enforcement sent a letter to the BIA asking for the court to reconsider Matter of Saysana in the context of Mr. Garcia Arreola’s bond appeal. Due to the importance of this issue and the distinct possibility of a positive change of national mandatory detention policy, AILA’s Amicus Committee notified the BIA that an amicus brief in support of Mr. Garcia Arreola and the Immigration Judge’s decision would be filed.

Today, the AILA Amicus Committee filed a brief in support of Mr. Garcia Arreola’s bond with the Board of Immigration Appeals (BIA).

The brief outlines the Board’s losing streak in the District Court via habeas corpus filings challenging the government’s mandatory detention statutory interpretations under Matter of Saysana and culminating with the First Circuit overturning Matter of Saysana for Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. While encouraging the Board to overturn Saysana, concomitantly AILA Amicus Committee asked the tribunal to reconsider its overall approach to mandatory detention. The Board’s on-going support for the broad interpretations of INA § 236(c), even beyond Saysana, has resulted in large numbers of additional detainees filing the nation’s detention centers, not to mention untold emotional, financial and psychological hardship and suffering imposed on both detainees and their families. The Amicus Committee urged the BIA to reconsider its heretofore strict and frequently overturned interpretations of INA § 236(c) in favor of a narrower and more tightly applied mandatory detention policy.

In short, the Amicus team is asking the BIA to follow the plain language of the law: mandatory detention applies when ICE detains a noncitizen removable for one of the INA § 236(c)(1) offenses “when released” from criminal custody. The statute (and anyone’s simple notion of justice) requires a nexus between the triggering offense and the criminal custody. It is our hope that the BIA will see the writing on the wall and do the right thing.

—Co-written by AILA Amicus Committee Members Kerry Doyle and Jeremy McKinney

As much as it pains us to write this, Matter of Diaz and Lopez is a correct statement of Brand X law. In the immigration field, there are three and only three parties that can exercise power under Brand X to declare interpretations in derogation of on point circuit precedent: the Attorney General, the Secretary of Homeland Security, and the Board of Immigration Appeals. That’s it. No immigration judges, no district directors, no regional directors, no AAO, not even the head honchos at CIS in Washington, D.C. (unless acting under 8 C.F.R. 103.3(c)). Let’s put an asterisk by BALCA – it is a bit hazy if they have law-making power (we’ll explain later or you can read this AILA Amicus brief).

Right now, it is true (in our opinion) that every administrative adjudicator within the Ninth Circuit must follow Matter of Diaz and Lopez – which mandates that Matter of Briones, not Acosta v. Gonzales, 439 F.3d 550 (CA9 2006), is the law. Accordingly, individuals who are caught up in the 212(a)(9)(C) mess will have their adjustment applications denied by administrative adjudicators and that is a correct result under administrative principles. (Note: Padilla-Caldera v. Gonzales, 453 F.3d 1237 (CA10 2006) still controls in the Tenth Circuit and every administrative adjudicator therein ought to follow Padilla, not Briones. We know that is not happening – but unlawful conduct by the immigration agencies doesn’t exactly shock us.)

Make no mistake: we think Briones, and Diaz & Lopez are substantively wrong. However, in the Ninth Circuit, the substantive fight is now at the Circuit Court level. If you have a case raising an Acosta question before the Ninth Circuit, consider dropping AILA Amicus a line – we are identifying cases and may be able to help.

There are still several statutory and fairness questions that are not controlled by Briones, Diaz & Lopez, or even Acosta. First, if Acosta is a Chevron step-one decision, then Diaz & Lopez will be vacated and possibly Briones. Second, if Briones represents an unreasonable Chevron step-two interpretation of the statute, then it will also be vacated. Third, there are unresolved retroactivity questions: for individuals who filed for adjustment in reliance on the Acosta decision – shouldn’t they be entitled to an adjudication under that interpretation? This is a complex question and involves some funky Supreme Court and Ninth Circuit precedent such as Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971) and George v. Camacho, 119 F.3d 1391 (CA9 1997) (en banc). To preserve these issues, they might need to be raised before the agency and certainly before the Ninth Circuit. Some of the retroactivity questions will be clarified (we hope, favorably) in the Duran-Gonzales litigation (updates here).

We continue to ponder other statutory arguments and will post again soon on this point. Please contact an AILA Amicus circuit monitor about your case or your statutory or fairness arguments.