Third Circuit Reflects on Unlawful Presence, Chevron, and the Importance of Prosecutorial Discretion

Written by: Shoba Sivaprasad Wadhia

As an immigration law professor sitting in Third Circuit who writes about prosecutorial discretion and the daughter of a highly educated software engineer-mother born in India, Cheruku v. Attorney General of the United States http://www.aila.org/content/default.aspx?docid=37068 is not just intellectually rich, it’s almost personal. 

Reddy Cheruku is a software engineer from India who entered the U.S. on a temporary B-1 visa, overstayed and through a U.S. based employer eventually sought adjustment to lawful permanent resident (“green card”) status under the Legal Immigration Family Equity Act (LIFE Act).  The LIFE Act was established by Congress to allow certain residents who entered without inspection or without lawful status inside the U.S. to regularize to permanent status if a family or employment-based petition was properly filed on or before April 30, 2001.  8 U.S.C. § 1255(i)  Seeking to leave the U.S. temporarily while her adjustment application was pending, Cheruku applied for “advanced parole” and subsequently used this parole to travel and reenter the U.S. in 2002.  Advanced parole is a travel document that permits individuals with pending applications for adjustment to depart the U.S. temporarily reenter.  Cheruku’s adjustment application under the LIFE Act was denied because of her travel on advanced parole.  Specifically, the Department of Homeland Security’s (DHS) (and later, the Department of Justice) found that her reentry into the U.S. in 2004 rendered her “inadmissible” for 10 years under INA 212(a)(9)(B)(i)(II) (commonly known as the “ten-year” bar), a provision added by Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.  The ten-year bar was one among three new barriers created by Congress to penalize noncitizens who accrued “unlawful presence” in the United States, left and then sought to reenter.   

Judge Scirira, writing for the Third Circuit, denied Cheruku’s petition for review, and made at least four conclusions: 1) the LIFE Act does not waive the ten-bar to admissibility; 2) the circumstances of Cheruku’s departure and return were not factually distinguishable from those at issue in prior BIA precedents; 3) Cheruku has failed to show any misrepresentation or affirmative misconduct by DHS; and 4) the grant of an advanced parole does not nullify Cheruku’s departure.  What makes Cheruku particularly significant is Judge Scirira’s application of the Chevron doctrine but acknowledgement about the human consequences when the doctrine is applied; and a concurrence by Judge McKee where he applies the strong equities and contributions of Cheruku to highlight a case deserving of prosecutorial discretion.  These points are summarized below. 

The Cheruku court reiterates the two-step inquiry in Chevron v. NRDC, 467 U.S. 837, namely 1) whether Congress’ intent is expressed in the statute’s plain language; or 2) whether the statute is silent or ambiguous.  If the statute is silent or ambiguous “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”  Aguirre-Aguirre, 526 U.S. at 424.  The Cheruku court also references Brand X to conclude that courts must accept an agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.  Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs, 545 U.S. 967, 980 (2005)  Like with its sister circuits, the Cheruku court finds the relationship between the statute governing adjustment of status under the LIFE Act and the statutory bars relating to unlawful presence ambiguous.  The Cheruku court relies on the BIA precedent decisions In re Briones, 24 I & N Dec. 355 (BIA 2007) and Lemus-Losa, 24 I & N Dec. 378 (BIA 2007).  In, Lemus-Losa, the Board concluded that the inadmissibility bar at 212(a)(9)(B)(i)(II) trumps the adjustment provisions at 245(i) of the LIFE Act.  As such, individuals inadmissible under the ten-year bar are ineligible for adjustment under the LIFE Act absent the grant of a discretionary waiver.   The Cheruku court found the Board’s interpretation in Lemus-Losa reasonable and therefore subject to Chevron deference, noting the fact that limited waivers are available to people subject to the ten-year bar and that in any event, the administrative goals of implementing the LIFE Act are meaningful different from the goals behind the ten-year bar.   

The Cheruku court expresses some discomfort with the result and the need for legislative change when it notes “While we may question whether the policy choices furthered by the BIA’s interpretation of the statutory scheme are wise, we remain mindful that “the place to resist unwise or cruel legislation touching aliens it the Congress, not th[e] [c]ourts.”  Harisades v Shaughnessy, 342 U.S.  580, 592 (1952).

The concurrence by Chief Judge McKee begins with the face of Cheruku, an educated software engineer, a highly skilled professional engaged in what her employer describes as “research, design, and develop[ment] [of] software and programs for high tech medical, industrial, scientific financial applications, lead[ing] teams of programmers and systems analysts in projects.”  Judge McKee notes that Cheruku lacks any criminal record or desire to repeatedly violate the immigration laws.  To the contrary, the parole document Cheruku received to travel outside the United States included complex language that both affirmed her permission to leave the United States and contained written warnings about the immigration consequences of returning to the United States after a period in “unlawful presence.”  Judge McKee concludes that “as a matter of law, Cheruku is, of course, charged with understanding the convoluted and hype technical language on the form she received.” 

Leaving aside the contradictions and confusion contained in the advanced parole document, we are still left with a question about priorities and prosecutorial discretion.  A favorable exercise of “prosecutorial discretion” refers to the immigration agency’s authority to not assert the full scope of immigration powers against a particular individual. http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf While the immigration’s use of prosecutorial discretion goes back to an immigration case involving music legend John Lennon http://immigrationimpact.com/2011/07/20/prosecutorial-discretion-and-the-legacy-of-john-lennon/    it has received heightened attention recently in light of a series of memoranda by ICE in the last year that both showcase the various equities the agency should consider in making prosecutorial decisions and the criminal and recidivist behavior that it labels as a high priority.  Meanwhile, the White House issued a letter and policy on August 18 of this year to announce its creation of an interagency working group of DHS and DOJ to work through the pending 300,000 cases in removal and administrative close the cases it deems a “low priority.”  Taking note of these developments, Judge McKee identifies the August 18 announcement and expresses “optimism” that Cheruku, a highly skilled engineer with steady employment and no criminal history represents a “low priority” case. 

AILA has long questioned the wisdom of the unlawful presence bars and the harsh consequences that attach to law-abiding noncitizens with strong equities.  AILA has also challenged the legality of Brand X deference in cases involving 245(i) and the unlawful presence bars.   http://www.aila.org/content/default.aspx?bc=9418|11708|36120 AILA and American Immigration Council (Immigration Council) have also both advocated for proper exercise of prosecutorial discretion http://www.legalactioncenter.org/sites/default/files/docs/DHS%20Review%20of%20Low%20Priority%20Cases%209-1-11.pdf; http://immigrationpolicy.org/special-reports/morton-memo-and-prosecutorial-discretion-overview-0  and is closely monitoring how the agency’s policies are being implemented in regions across the country.  Judge McKee’s concurrence should be added to the legal toolbox AILA attorneys and advocates use to push for favorable prosecutorial discretion on behalf of qualifying clients.     

Please direct comments to amicus@aila.org

Delgado v. Holder, the most recent en banc decision of the schizophrenic Ninth Circuit may be one of those event-horizon cases.  Valiantly litigated by AILA member Niels Frenzen, Delgado is notable, of course, for its headline holdings:  what it means to be convicted of a particularly serious crime.  These holdings, which we briefly summarize below, will impact the adjudication of numerous claims for asylum and withholding.

Delgado, a citizen of El Salvador, sought asylum, withholding and withholding under CAT but was deemed ineligible by the IJ. The BIA affirmed because they explained, in an unpublished opinion, that Delgado had been convicted of a particularly serious crime.  It was his third conviction for misdemeanor driving under the influence.

Judge Fisher, writing for 10 of the judges, granted in part and denied in part Mr. Delgado’s petition for review.  There were three case-specific holdings:  (1) the federal circuit courts have jurisdiction to review the BIA’s determinations that any particular individual has been convicted of a particularly serious crime;  (2) a particularly serious crime is not limited to aggravated felonies.  Crimes that are not aggravated felonies, such as driving under the influence, are not statutorily precluded from being designated as particularly serious by the BIA; and, (3) the Attorney General may classify crimes as particularly serious both by case-by-case adjudication and by regulation for asylum purposes.

What makes the case a boundary-marker, though, is the manner in which the Ninth Circuit applies the Chevron doctrine to decisions of the Board of Immigration Appeals.  If its Chevron holding sticks – and there are a lot of uncertainties on this point – then it ought to fundamentally alter the manner in which the federal courts, in this case the Ninth Circuit and the district courts therein, review agency immigration decisions.

Justice Stevens, the author of Chevron, explained recently that “[i]n the 25 years since Chevron was decided, [the Supreme Court] has continued to recognize that courts and agencies play complementary roles in the project of statutory interpretation.” The Chevron doctrine, as conceived of by the Supreme Court and implemented by the lower courts, clarifies how courts and agencies work together to achieve the goals articulated by Congress in legislation. As Justice Stevens is emphatic about pointing out: judicial deference to agencies’ views on statutes they administer was not born in Chevron and the role of the judiciary to say what the law is did not die with it either.

Chevron famously provides a two-step structure for judicial review of agency decision making while preserving the legitimate authority of an agency and, ultimately, Congress. At Chevron step one, a court determines whether Congress’ intent is expressed in the statute’s plain language, and if it is, that intent must be given effect. However, when Congress has explicitly left a gap for the agency to fill, a court must proceed to step two, where the inquiry is whether Congress was silent or used language that is ambiguous. If so, the agency’s interpretation is given controlling weight unless it is unreasonable.

The doctrine is well-known yet, in spite of its heritage, it is not well-understood.  What Chevron meant in the context of the poorly-reasoned flotsam flooding the federal courts in the wake of the BIA procedural reforms (wherein to their shame, the members of the BIA decided that they would no longer do their jobs no matter their oaths of office), the seemingly pristine Chevron doctrine, while simple in statement, proved difficult in application.  What to make of the mess of BIA decisions?  In a series of decisions, culminating in the en banc decision in Marmolejo-Campos v. Holder, the Ninth Circuit resolved what had been an inconsistent approach to the Chevron doctrine on several critical questions.  (The Ninth Circuit is not alone on its confusion and inconsistent approach to Chevron.  Some circuits, such as the First, Fifth, Eighth, and Eleventh continue to wander in the darkness in their view that Chevron acts as a docket-clearing mechanism that permits them to Pontius-Pilate their way to denying case after case without too much thought or guilt.)

In the Ninth Circuit, it is now so that as to form, only published BIA decisions curry Chevron deference.  An unpublished decision relying on a published opinion for dispositive effect will also trigger Chevron as to the contents of the published decision.  Immigration Judge decisions are not Chevron eligible.  Single-member BIA decisions, like unpublished BIA decisions, are not Chevron eligible.

As to content, the BIA decision must interpret its governing statute, such as the Immigration and Nationality Act, to be Chevron eligible.  For example, BIA decisions interpreting criminal law are not reviewed under Chevron.

The Delgado decision highlights a recurring, yet largely side-stepped Chevron question: when reviewing a BIA decision, if the BIA does not actually invoke Chevron in its decision, is its statutory analysis eligible for Chevron deference?  In other words, if the BIA adopts a plain language analysis of the INA and it thereby does not exercise its administrative discretion or expertise to fill a statutory gap or give meaning to any ambiguous terms does Chevron matter at all? Likewise the corollary: if the BIA finds the statute to be clear, but a judicial court finds the statute to be ambiguous, what should the court do?

In an amicus brief, AILA argued that when the BIA engages in a plain language statutory analysis, fills no statutory gaps, or does not particularize ambiguous statutory terms, its decision – published or not – is not eligible for Chevron deference. This is so even if the BIA is mistaken in its analysis and, indeed after judicial construction, a statute is ambiguous. Ambiguity, in the end, will always be a judicial determination.  The principle that – as to content – an administrative agency must actually use its expertise to fill statutory gaps or particularize ambiguous statutory terms before Chevron will apply appears to be well accepted in administrative law outside the immigration context.  But the circuit courts have failed to recognize this principle when applied to BIA decisions.  For example in Garfias-Rodriguez v. Holder, the Ninth Circuit recently cited Chevron and deferred to the BIA’s decision in Matter of Briones, yet in Matter of Briones the BIA merely conducted a plain language analysis of the statute and did not, in fact, invoke its interpretive powers.

In its brief in Delgado, AILA explained that the Supreme Court does not treat BIA decisions any differently citing to Negusie v. Holder.  In that case, the dispute centered on whether coercion or duress is relevant in determining if a noncitizen assisted or otherwise participated in the persecution of others such that he or she would be ineligible for asylum. The BIA in denying the application had concluded that its caselaw did not recognize coercion or duress as a defense to the persecutor bar. The government defended this decision on the basis of Chevron – the BIA was entitled to deference in interpreting the Immigration and Nationality Act. The problem in that defense though, Justice Kennedy pointed out, was that the BIA had not actually “interpreted” anything.  The BIA, erroneously, had concluded that its rulings were compelled by a Supreme Court decision interpreting a different statute. Accordingly, Chevron was inapplicable because the BIA had not used its Chevron delegated power to make law.

Judge Fisher, in his opinion in Delgado, credits the argument and explains at footnote 12 that, true, the BIA would not have been entitled to deference had it only reached a plain language interpretations.  Judge Fisher stated that the BIA, in fact, had found the statute to be ambiguous and thus adopted a Chevron gap-filling interpretation. In cases where the BIA believes a statute is plain, but it is in fact ambiguous, the court will remand for an agency interpretation under Chevron.

And why is this so important that we would characterize Delgado as being a marker?  Well, there are a couple of reasons.  First, it may mark the high-water mark of Chevron.  Certainly, Chevron will retain its importance in defining the relationship between the federal courts and administrative agencies, but courts may no longer reflexively invoke it to clear their dockets and instead will need to do the actual job of judges: judge.  Second, it casts doubt on every circuit court decision that deferred to a plain language BIA analysis.  Third, it specifically indicates that the highly contested BIA decisions in Matter of Briones, Matter of Lemus-Losa, and Matter of Rodarte, will not be entitled to Chevron deference because the BIA did not use its Chevron delegated powers.  Fourth, it ought to cause OIL attorneys to rethink their axiomatic and indiscriminate invocation of Chevron in defense of poorly reasoned BIA decisions when the BIA decision itself did not rely on Chevron.  In short, if the message conveyed in the simple footnote in Delgado is not lost, it ought to bring additional restraints on administrative decision-making and bring additional rationality to judicial review of immigration decisions.

Please direct comments to amicus@aila.org.

A few weeks ago, we discussed the conspicuous absence of AG Holder from the ongoing Silva-Trevino controversy.  Since that time, the BIA has issued another opinion attempting to articulate when it is proper for an IJ to abandon traditional categorical (Step One) and Modified Categorical (Step Two) and resort to Silva-Trevino’s amorphous Step Three. 

Removal matters decided solely on Silva-Trevino Step Three continue to make their way to Circuit Court.  The issue then becomes whether the agency’s opinion in Silva-Trevino is entitled to any judicial deference, and if so, how much. 

AILA, joined by the Immigrant Defense Project, Immigrant Legal Resource Center, National Immigration Project of the National Lawyers’ Guild, and the University of Maryland School of Law Immigration Clinic, filed an Amicus Brief with the 4^th Circuit Court of Appeals last week arguing former AG Mukasey’s needless departure from a century of case law in Silva-Trevino is entitled to no deference.  In fact, the 4^th Circuit observed thirty-five years ago that the focus of the INA “is on the type of crime committed rather than on the factual context surrounding the actual commission of the offense.”  Castle v. INS, 541 F.2d 1064, 1066 n. 5 (4^th Cir. 1976).  There was no ambiguity then (which could make room for reasonable agency interpretation) and there is no ambiguity now.  AG Mukasey simply ignored the plain language of the statute, which makes the focus on the criminal conviction, rather than the circumstances surrounding a criminal arrest. 

The Waheed brief was assembled and edited by Jeremy McKinney, Maria Andrade, and Russell Abrutyn for AILA and Isaac Wheeler for the Immigrant Defense Project.  However, the brief itself is simply the latest rendition of what AILA and other associations have been saying since Silva-Trevino was released in 2008.  The original scholarship came from many others who blazed the trail, such as Br. of IDP et al. as Amicus Curiae, Prudencio v Holder, No. 10-2382 (4^th Cir. 2011) and Br. of AILA et al. in Support of Motion for Reconsideration, Matter of Silva-Trevino (A.G. 2008).  Hopefully, our unified message and team approach to Silva-Trevino litigation will continue to yield results!

By Guest blogger, Victoria Neilson, Legal Director of Immigration Equality, Member of the AILA LGBT Working Group

Although the modern immigration system is grounded in the concept of family unity, lesbian and gay American citizens and lawful permanent residents have been completely excluded from petitioning for their partners or spouses.  When Congress enacted the Defense of Marriage Act (“DOMA”) in 1996, which defines marriage for all federal purposes as only the union of one man and one woman, marriages for same-sex couples were not celebrated in any country or state.  Today ten countries and five U.S. states plus the District of Columbia celebrate lesbian and gay marriages, and other states, including New York, fully recognize marriages celebrated elsewhere.  The only reason these marriages are not recognized for immigration purposes is DOMA.

On February 23, 2011, the Department of Justice (“DOJ”) announced that it would no longer defend DOMA in pending litigation challenging its constitutionality.  At the same time, however, DOJ stated that it will continue to enforce DOMA until there is a final judicial resolution.  What does all of this mean?

A detailed Practice Alert on DOMA and the legal challenges is available at AILA InfoNet Doc. No. 11033160 (posted March 31, 2011).  These are the highlights:

1 – Practitioners should not race into court to affirmatively challenge DOMA.

Although DOJ has stated that it will no longer defend DOMA litigation, it is likely that the House of Representatives will.  Planning is taking place now for strategic challenges in the immigration context to DOMA.  If you would like to be part of the planning, send an email to Immigration Equality at vneilson@immigrationequality.org or AILA Amicus at amicus@aila.org.

The victories thus far in DOMA litigation have been the result of well planned strategy by lesbian, gay, bisexual and transgender (“LGBT”) rights organizations.  If we start losing DOMA federal cases everyone loses.

If a practitioner has a case in which removal is truly imminent or is appearing before the Board of Immigration Appeals or any of the Federal Courts of Appeals on a case where a non-citizen in a same-sex marriage might qualify for cancellation relief, a waiver, or adjustment if the marriage were recognized for federal immigration purposes, the authors of the post can help.

2 – Most lesbian and gay binational couples should probably marry.

For many years we at Immigration Equality have counseled most lesbian and gay couples not to marry because doing so has the immediate downside of demonstrating “immigrant intent” with little or no tangible benefit.   We feel that the scales have now tipped in favor of marrying.  If a foreign partner is a visa overstay, or is on a long-term work visa that allows for dual intent, the possible benefits of marrying (potentially providing a defense in proceedings; proving longevity of relationship when the law does eventually change) now seem to outweigh the possible risks.  However, if a couple is making a relationship work by coming and going on a student visa, tourist visa or under the Visa Waiver Program, it may still be best to wait to marry.

3 – Most married lesbian and gay couples should not file I-130s affirmatively to challenge DOMA just yet.

Although DHS gave some indications in late March that it had put a temporary hold on lesbian and gay marriage cases, DHS spokesperson Christopher Bentley quickly moved to clarify that DHS had resumed denying same-sex marriage cases.  AILA and Immigration Equality are pushing DHS and DOJ for an abeyance policy but unless such a policy is announced, it would be inadvisable to file an I-130 affirmatively.  If in removal proceedings, practitioners are encouraged to reach out to Immigration Equality and AILA Amicus when filing an I-130 for a lesbian or gay spouse.

4 – Litigate and Advocate, but first Advocate.

A national litigation strategy on the DOMA challenge is emerging and will involve selecting cases in certain locations and pushing them forward to make good law.  As it shapes up, advocacy will help create the successful atmosphere within which we can win these cases.  DOMA could be repealed by Congress; DOMA could be found unconstitutional by the U.S. Supreme Court; the Uniting American Families Act  (“UAFA”), a bill which would allow USCs and LPRs to sponsor their long-term partners for immigration benefits, could pass; the Administration could hold applications and/or deportations in abeyance pending any of the above permanent outcomes.  For example, AILA, along with numerous other organizations, asked the administration to provide interim relief to bi-national gay and lesbian couples.

5 – Coordinate.

Immigration Equality and AILA Amicus may have resources to assist practitioners in individual cases with strategic decisions, advocacy with the administration for relief, and, in some cases, amicus help.

By Rebecca Sharpless (AILA Amicus 11th Circuit Monitor), Natalie Garrett, and Brittany Young, Immigration Clinic, University of Miami School of Law

Interpreting the prejudice requirement for ineffective assistance claims under Padilla v. Kentucky, the Third District Court of Appeal for the State of Florida has ruled that a generic judicial warning about possible deportation fails to cure defense counsel’s ineffective assistance.  Hernandez v. State, No. 3D10-2462 (Fla.App. 3 Dist., April 6, 2011).  In so doing, the court disagreed with a prior decision of another Florida appellate court.  See Flores v. State, —So.3d—, 2010 WL 2882465 (Fla.App. 4 Dist. 2010), pet. for reh’g and reh’g en banc pending.  The court, however, ruled against appellant Hernandez by characterizing Padilla v. Kentucky as creating a “new rule” that should not be applied retroactively.  Both issues have been certified to the Florida Supreme Court.  AILA members Sui Chung of Sui Chung, P.A. and Michael Vastine of the Immigration Clinic at St. Thomas University School of Law represented the appellant.

JUDICIAL IMMIGRATION WARNINGS

The Florida court’s ruling on the inadequacy of standard judicial warnings about immigration consequences is a model ruling that we hope will survive review by the Florida Supreme Court.  The specific judicial warning at issue was the standard warning under the Florida Rule of Criminal Procedure 3.172(c)(8) to a defendant pleading guilty that deportation is possible.  The court carefully analyzed the scope of defense counsel’s duty in Padilla v. Kentucky, concluding that “neither the plea colloquy nor Hernandez’s counsel’s advice . . . conveyed the warning that deportability was a non-discretionary and ‘truly clear’ consequence of his plea.”  The court went further to recognize that the test is not whether someone has been convicted of an aggravated felony, but whether the person “became deportable,” stating that both “scenarios” require defense counsel to “furnish a ‘will subject you,’ not a ‘may subject you’ warning to his or her client.”

It is important to keep in mind, however, that the court’s ruling was limited to a scenario involving “truly clear” immigration consequences—defined as cases in which the noncitizen clearly falls within a ground of removal.  The court did not go so far as to say that a judicial warning can never cure defective representation by defense counsel.  In particular, the court did not rule on whether judicial warnings about the possibility of deportation could cure prejudice in cases where there is some question about whether a conviction falls within a removal ground.  Moreover, the court suggests that a “will subject you” to deportation warning might cure ineffective assistance of counsel (emphasis added).

AILA, South Florida Chapter, filed an amicus brief in Hernandez v. State on the prejudice issue, authored by Tania Galloni, Florida Immigrant Advocacy Center, and Rebecca Sharpless, Immigration Clinic, University of Miami School of Law. The brief is available for download.

RETROACTIVITY

In contrast to its ruling on judicial warnings, the court’s ruling on retroactivity is disappointing.  Although the court recognized that the U.S. Supreme Court had strongly implied that defendants could use its decision in Padilla to challenge preexisting pleas, it went on to conclude otherwise.  The court held that Padilla v. Kentucky established a non-retroactive new rule, but failed to even consider the threshold question of whether Padilla even establishes a new rule requiring a retroactivity analysis.  As other courts have found, Padilla involved the application of an existing rule (the Strickland v.Washington test for ineffective assistance) to a new set of facts (pleas involving immigration consequences).  See People v. Bennett, 903 N.Y.S.2d 696 (N.Y.City Crim. Ct. 2010); People v. Garcia, 907 N.Y.S.2d 398 (N.Y.City Crim Ct. 2010). See also D. Kesselbrenner, “Practice Advisory:  Retroactive Applicability of Padilla v. Kentucky,” available here.   The 3^rd DCA’s failure to engage with this argument softens the impact of losing the retroactivity claim and we remain optimistic that the Florida Supreme Court will deliver a a better-reasoned decision.

Please contact AILA Amicus for assistance with Padilla claims pending before any of the State appeals courts or the Federal appeals courts at aila@amicus.org.

Two months before leaving office, President George W. Bush’s Attorney General, Michael Mukasey, issued a landmark immigration decision overturning a century of jurisprudence regarding the analysis of criminal convictions for immigration consequences.  In a nutshell, the decision states that to determine whether a crime is a “crime involving moral turpitude” (CIMT), first an Immigration Judge looks to the elements of the offense and asks whether the crime categorically involves moral turpitude or not (the inquiry ended there for most of the last century).  If there is a “realistic probability” that the prohibited act sometimes does and sometimes does not involve moral turpitude, then the Court can look to the record of conviction to see if the specific case involves moral turpitude.  If the record of conviction does not yield an answer, the Court may consider evidence outside the record of conviction.  Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008).  The BIA quickly illustrated that while DHS has the ability to attach removal consequences in three different ways (if step 1 doesn’t work, try step 2; if step 2 doesn’t work, try step 3), the noncitizen in removal proceeding does not share the ability to detach immigration consequences based on the underlying circumstances of the conviction.  See, e.g., Matter of Louissaint, 24 I. & N. Dec. 754 (BIA 2009). 

As the AILA Amicus Committee reported last year, “Immigrant advocates, although caught completely unawares–the AG had never told Mr. Silva-Trevino, let alone the broader legal community, why the case was certified–reacted swiftly. Several organizations submitted an amicus brief to the AG urging reconsideration of his decision because of the defective process behind the certification, its inconsistency with a century of uniform precedent, and the negative practical consequences Silva-Trevino will have on the functioning of immigration and criminal systems.” 

To date, Attorney General Holder has been silent on this issue.  The administrative board he oversees, the BIA, continues to apply Silva-Trevino with vigor.  Most recently, the Board issued a precedent decision with the following headnote:

Absent otherwise controlling authority, Immigration Judges and the Board of Immigration Appeals are bound to apply all three steps of the procedural framework set forth by the Attorney General in Matter of Silva-Trevino for determining whether a particular offense constitutes a crime involving moral turpitude.

Matter of Guevara Alfaro, 25 I. & N. Dec. 417 (BIA 2011) (emphasis added).  Reading the headnote in isolation, one could conclude that every case addressing whether an offense is a CIMT now requires a “mini-trial” since step 3 (allowing the IJ to consider any evidence) swallows steps 1 and 2 of the inquiry.  Such a reading, however, contradicts the AG’s own words.  Silva-Trevino, 24 I&N Dec. at 703 (“allowing inquiry beyond the record of conviction does not mean that the parties would be free to present ‘any and all evidence bearing on an alien’s conduct leading to the conviction.’ … In many, if not most, cases, the judge will not have to go beyond the record of conviction, which includes the transcript of any plea.”). 

Unfortunately, this flawed headnote reading is already at play in Immigration Courts.  For example, an Atlanta Immigration Judge had terminated proceedings in a case presenting the question whether Georgia’s public indecency statute was a CIMT.  The IJ had terminated proceedings, finding that Georgia’s public indecency statute was not categorically a CIMT (Matter of Mueller, 11 I&N Dec. 268 (BIA 1965)), and the conviction record failed to evidence a lewd or evil intent.  DHS filed a Motion for Reconsideration.  Guevara Alfaro was released while the DHS motion was pending, and DHS immediately notified the IJ of the BIA decision.  The IJ denied DHS’s Motion for Reconsideration, but, in doing so, applied all three steps of Silva-Trevino.  This exercise prolonged the respondent’s detention for several more weeks.

Understanding Guevara Alfaro requires reading beyond the headnote.  The specific question before the Board was whether “the substantive holding with regard to statutory rape offenses in [Silva Trevino] is limited to cases in which the defendant knew or should have known the victim’s age, and the question whether the respondent’s case meets that criterion can be determined only upon application of the third step of Silva-Trevino’s procedural framework.”  Id. at 419.  The Board concluded in determining whether an “indecency with a child” conviction was a CIMT, an additional inquiry would have to be made to determine whether respondent knew or should have known the age of the victim.  This does not mean that such an additional inquiry would be necessary in “many, if not most” cases.  The Guevara Alfaro headnote, however, does not make any such limitation.  The application of this case is just the latest example of “circumstance-specific” analysis run amuck.

Prior to Silva-Trevino, we have a century of jurisprudence that gives prosecutors, criminal defendants and their attorneys general guidance as to what is and what is not a CIMT, in an age where “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  We have a century of jurisprudence which promotes the uniform application of the law to similar convictions (regardless of disparate underlying facts).  We have a century of jurisprudence that promotes the efficient adjudication of removal matters.  Silva-Trevino and its progeny turn these principles on their head.

Our current Attorney General needs to hit the “reset” button and get us back to established precedent – which is just in its sheer simplicity — “Neither the immigration officials, nor we, may consider the circumstances under which the crime was in fact committed. When by its definition it does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. Conversely, when it does, no evidence is competent that he was in fact blameless.” United States ex rel. Robinson v. Day, 51 F.2d 1022, 1023 (2nd Cir. 1931) (L. Hand, J.). 

Mr. Holder, where art thou?

By guest bloggers Katrina Bondoc and Jacob Egler, Northwestern School of Law at Lewis & Clark College

The United States Supreme Court is considering the implications of its seminal case, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (which held that the Fourth Amendment exclusionary rule is inapplicable to deportation proceedings)  in a New York State criminal proceeding.  The case is called Tolentino v. New York, 0-11556.  The question presented is: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

Lopez-Mendoza has always been a difficult case to grapple with in the immigration context.  In anticipating the implications of a decision in Tolentino, we’ve pulled together a summary of how Lopez-Mendoza is treated in the different circuits and the state of law regarding suppression.

The general rule from Lopez-Mendoza is that deportation proceedings (and, likewise, removal proceedings) are civil actions that determine the eligibility of an alien to remain in the United States.  Thus, certain protections afforded to defendants in criminal actions, such as the exclusionary rule, are inapplicable in removal proceedings. However, this is not unfettered. A glimmer of hope lies in language in Lopez-Mendoza pertaining to “egregious violations of the Fourth Amendment or other liberties that transgress notions of fundamental fairness and undermine the probative value of evidence obtained.” See Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004); see also Gonzalez-Reyes v. Holder, 313 Fed. Appx. 690, 695 (5th Cir. 2009) (exclusionary rule is inapplicable in removal proceedings, absent some egregious violations of Fourth Amendment or other liberties). See e.g. Martins v. Attorney General of the United States, 306 Fed. Appx. 802, 804 (3d Cir. 2009) (affirming denial of suppression of evidence gathered by police and immigration officials under the fairly ordinary conditions the alien was interviewed in).

The exception, while technically present, is practically nonexistent outside the Ninth Circuit. The requisite level of egregiousness is largely undefined, and courts outside the Ninth Circuit have construed the exception very narrowly. For instance, the Fifth Circuit has expressed misgivings about readily finding an egregious violation when the example given by the Lopez-Mendoza plurality involved induced vomiting. See Escobar v. Holder, 2010 WL 4009870 (5th Cir. 2010); see also Gutierrez-Berdin v. Holder, 618 F.3d 647, 652 (7th Cir. 2010) (exclusion is seen as a “relatively narrow remedy” and “very minor physical abuse coupled with aggressive questioning” is not considered egregious). In addition to egregious violations of the Fourth Amendment or other liberties prong, the “and undermine probative value of evidence obtained” prong has been interpreted in some circuits to require that the unlawfully obtained evidence of an alien’s identity also undermine its probative value. The usual scenario involves obtaining an alien’s identity, which ultimately relates to her status, through other lawful means. Thus, unlawfully obtained evidence does not undermine its probative value even though the government would have never learned of the alien’s status but for the violation. In Miguel v. INS, 359 F.3d 408, 410 (6th Cir. 2004), the court refused to analyze the applicability of the exception because the alien’s removability was based on her own admissions independent from evidence gathered by INS agents that had conducted a search of her home in potential violation of the Fourth Amendment. Id at 411. Potential violations of liberties notwithstanding, the second prong effectively functions as a catch-all for the government.

The Second Circuit, however, makes use of the disjunctive “or.” The standard is not a two-part test. Rather, it is a question of whether the evidence was obtained under the context of an egregious violation or undermines the probative value of the evidence obtained. Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006) (“the Lopez-Mendoza court inadvertently used the conjunctive ‘and’ instead of the disjunctive ‘or’ to link these two possible grounds for deeming a violation egregious”). The Eighth Circuit also appears to have adopted this view and has given further guidance on what might qualify as egregious by listing violations involving physical brutality, unreasonable show or use of force, or an arrest based solely on race. Puc-Ruiz v. Holder, 2010 WL 5185803 (8th Cir. 2010). While a disjunctive standard seemingly broadens the exception, it has yet to be successfully applied.

Only the Ninth Circuit takes an expansive view of the Lopez-Mendoza exception.  In the Ninth Circuit, the applicable test is “[a] Fourth Amendment violation is egregious if evidence is obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should have known is in violation of the Constitution.” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) (internal quotations omitted). See also Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010) (an egregious violation had not occurred because a reasonable officer would not have known he lacked probable cause).  The expansive nature of this interpretation of the exception is best understood through comparison with the dissent from the order denying rehearing en banc of Lopez Rodriguez v. Holder.  In the dissenting judges’ view “[The 9th Circuit] seem[s] to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then…applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule-one never envisioned by either the Supreme Court majority or the plurality.” Lopez-Rodriguez v. Mukasey, 560 F.3d 1098 (9th Cir. 2009).

However, in cases concerning criminal deportation proceedings under 8 U.S.C. § 1326, courts more readily accept the appropriateness of the “egregious violation” exception  in both jurisdictions that interpret the “identity statement” in Lopez-Mendoza as applicable to a court’s jurisdiction over a defendant, and as an evidentiary issue. In  United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007), the court explained that in a criminal deportation proceeding, there are instances for suppressing evidence of a defendant’s identity because the language pertaining to “identity statement” in Lopez-Mendoza is in regards to a court’s jurisdiction over a defendant, not suppression of unlawfully obtained evidence relating to his identity. The court further emphasized that the exclusionary rule does not apply in civil deportation proceedings. Id. at 230. In circuits that interpret the “identity statement” in Lopez-Mendoza as barring suppression of evidence of identity, the “egregious violation” exception is also invoked. See United States v. Bowley, 435 F.3d 426, 431 (3d Cir. 2006) (In a criminal deportation proceeding for illegal reentry, an alien needs an egregious violation of the Fourth Amendment to warrant suppression of his immigration file or its contents). See also United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir. 2005) (in an 8 U.S.C. § 1326 proceeding, the alien’s motion to suppress his identity was denied in the absence of an “egregious violation of the Fourth Amendment”).  On one extreme, the District Court of Massachusetts has completely done away with the exception, at least in the context of a criminal deportation proceeding, under the rationale that the exclusionary rule never operates to suppress a person’s identity because the exception language in Lopez-Mendoza is mere dicta. See U.S. v. Sandoval-Vasquez, 519 F. Supp. 2d 198, 300 (D. Mass. 2007) (In addressing the issue of whether evidence of defendant alien’s identity is suppressible because of a search and seizure under a wrongful warrant, the court reasoned that the “egregious violation” statement in Lopez-Mendoza had no application to the Court’s earlier ruling that the exclusionary rule never operates to suppress a person’s identity).

If you have a case (at any stage the proceedings) raising a suppression issues, would like to contact the authors or the AILA Amicus Committee, please send an email to amicus@aila.org

It has now been 4 ½ years since the Adam Walsh Child Protection and Safety Act (AWA) took effect. Designed to “protect the public from sex offenders and offenders against children,” the AWA made several revisions to the INA, making U.S. citizens and lawful permanent residents with certain criminal convictions disqualified from filing visa petitions for their family members or fiancées. A person found to have a conviction for a “specified offense against a minor” is excluded from eligibility to file a family-based petition on behalf of any beneficiary, unless the Secretary of DHS finds, in his or her “sole and unreviewable discretion,” that the petitioner presents “no risk” to the proposed beneficiary.

For the first several years after its implementation, visa petitions found to potentially fall within the ambit of the AWA were backlogged at USCIS, as the agency developed uniform procedures for processing the applications. In September, 2008, however, the Service issued a Standard Operating Procedure module for the adjudication of AWA petitions, leading to an increase in the pace of adjudications.

As more and more AWA decisions are issued, the Amicus Committee is interested in tapping into the collective experiences of AILA members around the country with AWA adjudications. We feel there are several, unresolved issues regarding the scope, standards and reviewability of the AWA, and the Committee hopes to be involved with—or at least aware of—any pending or contemplated legal challenges to the law.

Among the issues that we feel need additional clarification are the following:

▪   Whether the categorization of a particular conviction as a “specified offense against a minor” is done using the categorical approach, or is made with an inquiry into the specific facts of the offense? In general, the categorical approach has been adopted by courts when analyzing statutory construction in the context of immigration law. However, at least one circuit court has already rejected that approach, at least for that portion of the AWA dealing with the creation of a national sex offender registry system. In U.S. v. Dodge, the Eleventh Circuit allowed an examination of the facts of a defendant’s underlying conduct in determining what constitutes a “specified offense against a minor.” 597 F.3d 1347 (11th Cir. 2010), petition for cert. denied (U.S., Oct. 12, 2010 No. 09-11207). The Amicus Committee would be interested in any AWA decisions showing what approach is currently being taken by USCIS in AWA adjudications.

▪   Whether the definition of “conviction” found at INA § 101(a)(48)(A)—which, by its own terms, is applicable only “with respect to an alien”—is being applied by USCIS to USC petitioners. There is a strong argument that a diversionary disposition of a criminal charge, resulting in something other than a judgment of conviction, should prevent the triggering of an AWA petition bar for a USC petitioner. The Committee, therefore, would be interested in hearing about any cases in which the Service did apply (or rejected) the expanded definition of “conviction” to deferred adjudications for USC petitioners.

▪   In interpreting the statutory mandate that a discretionary exception to an AWA bar be available to a petitioner who poses “no risk” to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proof—beyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agency’s discretion? Last year, the AAO reaffirmed the long understood principle that a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010), citing Matter of Martinez, 21 I & N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings). The only exception to this default standard would be those instances where a different standard was specified by law (for example, the heightened standard for proving the bona fides of a marriage entered into during proceedings). The AWA contains no language heightening the standard of proof. Therefore, it can be argued that the AWA should properly be read to require that a petitioner who has been convicted of a specified offense against a minor submit evidence that demonstrates, by a preponderance of the evidence, that he or she poses no risk to the safety and well being of the beneficiary. Have any practitioners raised similar arguments with the agency? What have been the responses?

▪   Which party—USCIS or the petitioner—bears the burden of proving that a conviction is, or is not, a specified offense against a minor? If the burden falls on the petitioner, as someone applying for a benefit, what happens in those situations where conviction records are no longer available, or are ambiguous?

▪   Where a petitioner is found to have been convicted of a “specified offense against a minor,” and the intended beneficiary is a minor, USCIS has adopted a rebuttable presumption of risk. Does the agency’s policy decision go beyond the reach of the statute?

▪   Under the terms of the AWA, the determination of whether or not the petitioner poses a risk to the beneficiary is made by the Secretary of DHS in his or her “sole and unreviewable discretion.” As a result, the BIA cases to date addressing the “no risk” prong of the AWA have been dismissed on jurisdictional grounds. A typical BIA denial reads as follows:

Since the Director has concluded that the petitioner failed to prove beyond a reasonable doubt that he does not pose a risk to the safety or well-being of the beneficiary, and that determination is unreviewable by this Board, the petitioner is not eligible to file a visa petition on behalf of the beneficiary pursuant to sections 204(a)(l)(A)(i) and 204(a)(l)(B)(i) of the Act.

But what about those situations where a petitioner raises the legal question of whether the Secretary applied the correct standard in making the risk assessment? Would that challenge be reviewable at the Board? The Committee feels that such a review would still be possible. Much like the jurisdiction-stripping provisions of the INA with regard to judicial review of discretionary determinations, there should still be room within the terms of the statute to allow for purely legal arguments. What has been the experience of practitioners to date with BIA jurisdiction over AWA claims?

▪   Are there Constitutional concerns raised by the limitations created by Congress on the ability of a USC or LPR to petition for a family member? On the one hand, the existing case law on this topic can be discouraging, with the Supreme Court repeatedly upholding Congress’s broad plenary powers to regulate immigration and citizenship issues. See, e.g., Knauff v. Shaughnessy, 338 U.S. 537 (1950); Shaughnessy v. Mezei, 345 U.S. 206 (1953); Kleindienst v. Mandel, 408 U.S. 753 (1972); and Fiallo v. Bell, 430 U.S. 787 (1977), all recognizing extremely broad Congressional plenary powers to exclude or expel immigrants. On the other hand, it may still be possible to craft a Constitutional argument by distinguishing this line of cases as focusing on the status of the immigrant, and not on the status of the petitioner. What have been the experiences of any practitioners raising Constitutional issues regarding an AWA petition denial?

▪   Finally, USCIS takes the position that the AWA applies to all petitions filed or pending on the date of enactment. But are any retroactivity concerns raised by situations where the conviction for a “specified offense against a minor” took place before the effective date of the AWA? Couldn’t it be argued that Congress’s creation of a bar to filing certain family petitions due to past conduct attached a “new disability” to that conduct, and is therefore impermissibly retroactive? What have been the experiences with any practitioners raising these concerns before the agency?

This list of issues is hardly exhaustive. As more AWA cases are filed with the Service, and challenged administratively and judicially, the exact boundaries of the new law will become increasingly clear.

For example, just recently, the Amicus Committee was notified of a pending AWA BIA appeal in which the Board requested supplemental briefing on several of the topics mentioned above. The Committee agreed to prepare its own amicus brief, and was in the process of drafting that document, when the Service suddenly moved the Board—after the case had been pending for over a year—for a remand, so that the agency could issue a new decision. It would appear that USCIS is maneuvering strategically to avoid further analysis of some of its policy decisions, or avoiding the issuance of a precedential decision from the Board.

Nevertheless, the Board’s unusual request for additional briefing certainly suggests that it has taken a keen interest in exploring the exact parameters of the AWA, and we can probably expect important AWA cases coming from the Board in the near future. You can help AILA in defining those boundaries by passing along your own experiences with the AWA, and suggesting other areas ripe for litigation.

One of the funniest parts of my job (in a sad way) is explaining to criminal defense attorneys, prosecutors, and state court judges that the INA’s definition of the word “conviction” differs from their ordinary sense of the word.  In 1996, Congress changed the definition of the word “conviction” to read as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).  Ignorance of the definition can result in disaster.  A criminal defendant can be subjected to mandatory detention and removal, even when a prosecutor and court do not desire a defendant’s exile from the United States.  North Carolina’s best example of this is its drug diversion program.  N.C. Gen. Stat. § 90-96.   A criminal defendant with a first-time drug possession charge is often offered this program to avoid a conviction.  Entry into “90-96″ requires a guilty plea or finding of guilt and placement on probation by a state court judge.  Once the conditions of probation are successfully completed, the drug possession charge is dismissed, and the criminal defendant may later become eligible to expunge the charge.  Id.  Even though this statute was designed and intended to promote rehabilitation and a second chance at life without carrying the “felon” label, North Carolina’s “90-96″ program seems to satisfy the INA’s definition of conviction.  See Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

One would think the plain language of the statute is expansive enough, but of course some judges have stretched the boundaries of the word “conviction” further.  See, e.g., Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1279 (11^th Cir. 2009)(a state’s conviction of a minor in adult court is considered a conviction for immigration purposes); Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(holding that courts costs alone constitute a “penalty”). 

Therefore, it was refreshing to see a panel of the 4th Circuit recently embrace a more natural reading of the word “conviction.”  In Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011), the Court held that some criminal court adjudications conducted pursuant to Virginia’s first offender statute do not constitute convictions under the INA.  

“Crespo’s 1997 adjudication was pursuant to Virginia Code § 18.2-251, which applies to a first offender who ‘pleads guilty to or enters a plea of not guilty to possession of … marijuana.’ Va.Code Ann. § 18.2-251. After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth’s objection. Crespo was sentenced to one year of probation, which he served without incident.”  Id. at 5-6 (slip opinion). 

The question thus became whether in deferred adjudication proceedings, a plea of not guilty combined with a judicial finding of facts “justifying a finding of guilt” satisfies the first prong of the INA’s definition of conviction.  The government argued such a finding “made by the judge under § 18.2-251 is the functional equivalent of a judge finding the alien ‘guilty’.”  Id. at 6-7.  The panel disagreed.  “[I]f the judge finding the alien ‘guilty’ was intended to encompass Crespo’s situation then the phrase ‘or has admitted sufficient facts to warrant a finding of guilt’ would be rendered superfluous since an alien’s plea of guilty would likewise encompass such an admission.”  Id. at 7.  The panel found the most natural reading requires that “the defendant’s guilt has been established by a trial, plea, or admission.”  Id.  An informal factual inquiry is not a trial.  Crespo made no guilty plea or admission.  Therefore, the first prong of the INA’s definition of conviction was not satisfied. 

The Crespo decision should encourage us all to re-examine our own State’s first offender statutes.  The above-referenced “90-96″ program, for example, is limited to a criminal defendant who “pleads guilty to or is found guilty.”  N.C. Gen. Stat. § 90-96(a).  What does it mean in North Carolina to be “found guilty”?  Is it analogous to Virginia’s judicial finding of facts sufficient to justify a finding of guilt, or is it analogous to a trial?  Thanks to Crespo, I look forward to finding out.

We are not certain what to make of oral argument in the recent en banc case, Nuñez-Reyes.  You can watch it for yourself here.  Although the court may dispose of the case without issuing a precedent decision, as we noted in a post-argument amicus letter-brief, the tone of the argument appears to be a warning to individuals residing in the Ninth Circuit that the state of the law regarding expunged drug convictions is about to change.

Some background: for the last 17 years, the law in the Ninth Circuit has been that a drug-related conviction expunged under a state-law analogue to the Federal First Offender Act, 18 USC § 3607(b), is not a conviction for immigration purposes.  See Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).  Garberding holds that there would be no rational basis for Congress to exempt federal convictions expunged under the FFOA from deportation (now, removal) consequences, but not state convictions that are expunged under similar state programs.  Consequently, under Garberding, a state expungement eliminates removal consequences of a controlled substance offense, if the offense is one that would have been subject to expungement under the FFOA, if the case would have been prosecuted in federal court.  The holding in Garberding has been held to apply even if the state program is not identical to the FFOA.  See, e.g., Dillingham v. INS, 267 F. 3d 996 (9th Cir. 2001).

Following Garberding, the Board of Immigration Appeals adopted the Ninth Circuit’s view that equal protection demands eliminating adverse immigration consequences of convictions that are expunged under state, and foreign, programs, even if they are not identical the FFOA scheme. Matter of Manrique, 21 I&N Dec. 58, 62-64 (BIA 1995).  But even before Garberding and Manrique, as a matter of policy the BIA held that certain expunged state drug convictions could not form the basis of deportation charges, as long as the conviction would have been subject to a similar treatment under the FFOA.  See Matter of Andrade, 14 I&N Dec. 651 (BIA 1974); Matter of Werk, 16 I&N Dec. 234(BIA 1977); Matter of Deris, 20 I&N Dec. 5 (BIA 1989).

After the enactment of the definition of conviction in IIRAIRA, now codified at INA § 101(a)(48), the BIA examined its precedent in light of the new definition.  Matter of Roldan, 22 I&N Dec. 512, 519-21 (BIA 1999).   The Board concluded, as a matter of law, that § 101(a)(48) INA, required it to overrule many years of precedent, and hold that offenses expunged under state analogues to the FFOA now constitute a “conviction” within the meaning of the statute.  Id. at 528.  The sole reason that the BIA held that these precedent decisions no longer have force was its conclusion (with which AILA disagrees) that Congress legislatively overruled the decisions when it enacted § 1101(a)(48)(A).

In petitions for review of combined cases, the Ninth Circuit revisited Garberding, and ultimately reversed Roldan, in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).  In Lujan, the court reaffirmed Garberding’s equal protection analysis.  Id. at 749.  It  also found that as a matter of statutory construction – independent of the equal protection analysis – that the new definition of conviction does not include convictions expunged under either the FFOA or comparable state programs.  Id. at 743 – 748.

In September 2010, the Ninth Circuit issued an order granting en banc review and vacating the panel decision in Nuñez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010)(per curiam), vacated 2010 WL 3816719 (9th Cir. September 24, 2010).  The en banc rehearing request, filed by the government, relied in part on a concurring opinion by Judge Graber, in which she criticized the so-called “equal protection rule” established in Garberding and followed in Lujan, and urged the court to revisit and overturn the rule.   Nuñez-Reyes, 602 F.3d at 1105 and 1107.  Along with the National Immigration Project of the National Lawyers Guild, AILA submitted an amicus brief to the en banc court, arguing that the holdings of Lujan and Garberding remain sound, and that the BIA erred when it interpreted §1101(a)(48)(A) in Matter of Roldan.  AILA argues that the plain language of the statute and applicable rules of statutory construction demonstrate that Congress did not intend for § 1101(a)(48)(A) to overturn either Ninth Circuit or BIA precedent concerning whether an expunged conviction under a state analogue program to the FFOA constitutes a ground of removeability.   While other circuit courts of appeal have affirmed the BIA’s interpretation, either as a matter of deference or because they agreed with it, they have failed to address key points raised by AILA and other amici, or in Lujan-Armendariz itself.  The Stanford Immigrants’ Rights Clinic on behalf of National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and Immigrant Defense Project also submitted an amicus brief, as did the Drug Policy Alliance on behalf of itself and other organizations.

Oral argument in Nuñez-Reyes occurred last month.  We asked for air time during oral argument, given that the Review Department of the California State Bar Court has recommended that Mr. Nunez’s counsel be temporarily suspended from the practice of law and placed on probation.  But we were rebuffed.  The video of the argument – well, we will let the judges speak for themselves.  In any event, counsel are well-advised to proceed with caution when advising clients in the Ninth Circuit about the immigration consequences of expungements under state analogues to the FFOA.  It is not clear whether Lujan will be upheld, or whether parts of it may be upheld while other parts are abandoned.  Further it is unclear, if Lujan is reversed, whether the new holding will be applied retroactively, or prospectively only.  The Immigrant Legal Resource Center has issued a practice advisory concerning representation of clients during this uncertain period while Nuñez is under review by the court.  For now, Lujan-Armendariz and Garberding are the law of the land within the Ninth Circuit.  But it is anyone’s guess as to how much longer that may be true.  Stay tuned to InfoNet and this blog for further developments.