We here at Immigration Slip Opinion are skeptical about a lot of things. We are skeptical that the Courts of Appeals understand the Chevron doctrine, we are skeptical that Congressional intent can ever be divined from the text of a statute so badly written as the Immigration and Nationality Act, and we are skeptical that random old women lurking in the woods bearing invisibility cloaks ought to be trusted (especially the ones from Grimms Fairy Tales). Allow us to explain.

It seems that not too long ago, in the course of its adjudication of the case that became Matter of S-E-G- , the Board of Immigration Appeals, apparently, encountered just such a random old woman. We don’t know what the Board was doing in the woods around Falls Church unchaperoned (wasn’t the Attorney General supposed to be keeping an eye on them?) and we don’t know why the Board felt she could be trusted, but we admit that we know so little sometimes. True, we haven’t a lot of experience with such things, but most of the invisibility cloaks we know of are either not so big or are of such rare material that one would be hard pressed to cut a swath large enough and light enough to conceal an entire class of people from the protection of our asylum laws. But that is what they did. Perhaps they know someone at JoAnn Fabrics that we do not.

Social Visibility as the Board conceives of the subject is about, well, visibility or, in the case of S-E-G, it was about invisibility. The folks at the Immigrant Law Center of Minnesota (ILCM), along with Latham & Watkins, L.L.P., represent the S-E-G- respondents, and have asked the Attorney General to certify and reverse the Board’s decision. ILCM has this web page tracking both the certification request and how S-E-G- is being received in the courts of appeals. S-E-G- itself was reopened and remanded, after an application for a stay of removal was filed with the Supreme Court, because at least two of the respondents qualified to apply for benefits under the recent reauthorization of the anti-trafficking law (the TVPRA – more on this in a subsequent post). OIL is convinced that S-E-G- retains precedential force in spite of its reopening. We are skeptical.

While a number of circuit courts now appear to accept S-E-G-, others thankfully share our skepticism of the social visibility test. In the Seventh Circuit, at the hands of Judge Posner, S-E-G- has not faired well at all, and the social visibility test has been rejected outright. The Third Circuit heard spirited oral argument on the question February 3, 2010, with one judge calling the Board’s test “gobbeldy gook” (yes, that’s a quote). And the Fifth Circuit granted rehearing in a gang asylum case (an unusual move for certain) to re-examine the social visibility test after seeing that the Seventh Circuit rejected it. OIL appears quite concerned about another strike against S-E-G- in the Fifth Circuit, judging by the eleventh hour switch in their litigation position. Just days in advance of oral argument in the panel rehearing of Orellana-Monson v. Holder, No 08-60394 (5th Cir.) (oral argument March 1, 2010), OIL is telling the Fifth Circuit that they will no longer seek to defend the underlying BIA decision as consistent with the social visibility and particularity criteria of Matter of S-E-G-.

The Supreme Court will soon consider a petition for certiorari in the gang-asylum case of Balmoras Alexander Contreras-Martinez. AILA was agnostic on Contreras-Martinez’s cert petition when it was filed and remains so today — it might be too soon for this issue to be at the Supreme Court. The petition is unlikely to be considered in conference until much later this Spring. If cert were granted (a big if), the case would not be argued until next fall at the earliest.

The Immigrant Law Center of Minnesota is tracking S-E-G- and the social visibility-gang cases.

– guest blogging by Benjamin Casper, Director of the Pro Bono Litigation Project of the Immigrant Law Center of Minnesota, with Stephen Manning, AILA Amicus Committee chair.

We begin a regular review at what’s happened and happening at the BIA.

Matter of Gamero, 25 I&N Dec. 164 (BIA 2010) (Jan. 13, 2010)

Has voluntary departure gotten complicated enough for you? Well, the BIA has added another chapter to the Vol. Dep. Book now with this decision. The BIA has determined that voluntary departure may only be reinstated by the Board if the Respondent provides proof of the posting a voluntary departure bond with the notice of appeal. As Gamero was not on notice of this requirement and the Immigration Judge failed to provide warnings of the need to provide proof of the voluntary departure bond with the notice of appeal, the case was remanded to permit warnings to be given. Presumably the Board is also allowing Gamero to comply with this new requirement.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)(Jan. 27, 2010)

Just when you thought it was safe to live in the 9th Circuit, the BIA comes back with another repudiation of 9th Circuit precedent. The legal issue at hand is whether or not INA §254(i) trumps the permanent bar on admission found in INA §212(a)(9)(C)(i)(I)? Previously in Acosta v. Gonzales, 4329 F.3d 580 (9th Cir. 2006) determined that §245(i) did trump the permanent bar.

Since that time, however, the BIA directly addressed the question of the interplay between the two statutes and in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) found the opposite of the 9th Circuit. The Board found the §212(a)(9)(C)(i) could not be overcome, even through adjustment under §245(i).

Both cases, now consolidated by the BIA, arose in the 9th Circuit and the Board directly challenges the Circuit’s previous finding and urges the Circuit to adopt the Board’s administrative interpretation of the two statutes pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) and Chevron, USA., Inc. V. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Board points out in its decision that the Second, Sixth and Seventh Circuits have given deference under Chevron to the BIA’s interpretation of the two statutes.

Additionally, the BIA pointed out that the 9th Circuit had recently adopted it’s interpretation of the interaction between INA §§245(i) and 212(a)(9)(C)(i)(II) by giving deference to the Board because of the ambiguity of the statutes and in the process overturning prior 9th Circuit precedent.

In it’s analysis, the Board rejected the argument that it was bound by Mercado-Zzueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that precludes an agency from “repeatedly putting forward an interpretation . . .” that has already been rejected as unreasonable. Diaz & Lopez at 190. The BIA says “take THAT 9th Circuit.”

Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

The on-going saga of INA §204(j) and Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) may be finally coming to a close. Under Perez-Vargas, the Board had determined that an Immigration Judge lacked jurisdiction to determine whether an employment-based visa petition remained valid under §204(j). The decision caused great confusion and a few Circuit Court cases as well. Three circuits, including the Fourth, Fifth and Sixth rejected the Board’s analysis after Perez-Vargas. As a result, the Board adopted the Circuit Courts’ interpretations and explicitly recognizes the Board’s and Immigration Judge’s authority to determine whether, despite a change of employment, an employment-based visa petition remains valid.

Sanity has now been restored—at least on this issue.

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010).

A husband and wife, natives and citizens of China were granted asylum under INA §208. Their asylum applications were filed within one year following the birth of their second child. The Court determined that applicants are not allowed a year to file asylum following “changed circumstances.” The BIA points out that the regulations require such applications to be filed “within a reasonable period . . ..” T-M-H- & S-W-C- at 194, citing 8 C.F.R. §1208.4(a)(4)(ii).

The BIA refers to prior decisions and Supplementary Information included with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), that states that a person whose immigration status is terminated or expired is generally required to file for asylum within a “reasonable period,” which has been determined to be less than six months. T-M-H- & S-W-C- at 195.

The case is remanded to determine whether the 9 month delay by the female respondent in filing for asylum and a one-year delay in filing by the male respondent following the birth of their second child is reasonable. The IJ has been instructed to make additional findings of fact “with respect to the particular circumstances involved in the delay[s] . . ….” T-M-H- & S-W-C- at 196.

Matter of Morales, 25 I&N Dec. 186 (BIA 2010).

Respondent had filed for cancellation of removal for non-permanent residents pursuant to INA §240A(b). The Immigration Judge (“IJ”) denied the application and granted voluntary departure.

The IJ had failed to consider Respondent’s step-father as a qualifying relative in determining whether the requisite hardship standard had been met. The Board points out that the definition of “parent” under the INA includes step-parents who meet particular requirements and moreover, Board cases had recognized step-parents ahs visa petitioners for many years.

The BIA found that a step-parent meeting the definition of “parent” under INA§101(b)(2) and must be considered in making a hardship determination under INA §240A(b)(1)(D).

When this decision came out, it seemed unnecessary, but apparently at least one judge in Los Angeles, CA was unable to properly evaluate the meaning of “parent” pursuant to the Immigration Laws. Another positive step forward for the Board.

Matter of Rose, 25 I&N Dec. (BIA 2010).

Ms. Rose was married to a United States citizenship and received conditional permanent resident status through her husband’s petition on her behalf. Unfortunately, he died prior to the removal of conditions on Ms. Rose’s permanent resident status. The Respondent, Ms. Rose, filed a petition to remove the conditions on her residence, but the case was denied and the Respondent’s status was terminated.

The IJ reviewed the Service’s decision and likewise denied it because the I-751 Petition to Remove Conditions was not filed jointly and there was no determination that Respondent was eligible for a waiver. A direct appeal was dismissed and a motion to reconsider was filed.

In consideration of the issue before it, the BIA determined that the death of a spouse during the two-year conditional period waives the need to file a joint petition, but the surviving spouse need not file a separate waiver if the initial petition is filed timely and the Respondent appears for an interview.

The Board determined that INA §216(c)(1)(A) and (B) exempts windows and widowers from having to file a joint petition and attend an interview. Therefore, it was an error for the Service and the IJ to deny the case for failure to make a waiver claim. The BIA also reiterates that it is the Services’ burden of proving “by a preponderance of the evidence,” that the Respondent is removable. Matter of Rose, at 185. The record was remanded.

– blogging by Kerry Doyle, AILA Amicus Committee member.

It is increasingly common for immigration lawyers who lose circuit cases to get calls from lawyers offering a deal that is too good to be true. The callers say that at absolutely no cost to you or your client, they will prepare a costly petition for writ of certiorari and take over all of the work to handle the case at the Supreme Court. All you need to do is say yes, and they will take care of the rest.

Like all deals that seem too good to be true, this one requires careful thought. Yes, your client wants to stop deportation. Yes, the circuit decision was wrong. But neither one means that you should necessarily seek review in the Supreme Court or, if you do, take on the services of the first big name law firm or law school clinic that calls.

Why? It should come as no surprise that the Supreme Court is a treacherous place for litigating immigration cases. Although we have had some big wins, we have also had major losses. And even if there is a chance at a win, everyone, including your client who lost in the circuit, has an interest in having the best possible strategy pursued.

Two years ago, lawyers from leading immigration advocacy organizations (including the AILA amicus committee) came together to form the Supreme Court Immigration Law Working Group. The purpose of the group is to assist lawyers who receive calls from firms offering to handle Supreme Court cases, to develop a coherent strategy for Supreme Court intervention in immigration cases, and to plan strategies for effective presentation of relevant issues when a case is taken up by the Supreme Court. You can reach the group at clearinghouse@immcouncil.org.

Here are some basic steps that the working group follows:

First: does a client with a losing circuit case have other options? Sometimes, there is another option, for example, through consular processing or a U visa. The lawyer who calls offering to take your case to the Supreme Court probably isn’t interested in those other options. But other immigration lawyers might be able to help you sort them out. In addition, sometimes, resolution of the issue that makes your case attractive to the Supreme Court lawyers may not really help your client. Again, immigration lawyers can assist in sorting that out.

Second: is the client’s case the best vehicle for presenting the issue? There are many ways of preserving a client’s ability to benefit from a Supreme Court decision, even if another case is the one that is heard by the Supreme Court. For example, you can seek rehearing or an extension of time while other cases so forward. The key is to figure out which is the best case to go forward.

Third: if it makes sense to seek Supreme Court review, who will do the best job? It is important to look for lawyers who will work with immigration experts and who will be as interested in a good result through settlement or agency interpretation as they are in a merits argument in the Supreme Court.

Fourth: if it makes sense to go to the Supreme Court, who can take on the work of ensuring a good set of amicus briefs that will present the issues? These briefs take time to write and it is important to ensure that each serves a discrete purpose. Otherwise, there is a danger of briefs that are at cross-purposes or simply do not get read.

Finally: what is the plan once there is a decision? The lawyers calling to take on the case are probably not thinking about the possible administrative and legislative fallout from a decision. But every Supreme Court case has the potential to set off agency action or legislative proposals. As an advocacy community, we need to be prepared for these consequences.

All said, the lawyers offering you free services may be very talented and have much to contribute. But think carefully about what is being offered before you sign on the dotted line. And give the advocates with the Supreme Court Immigration Law Working Group a chance to provide you with some advice as you negotiate this terrain.

– guest blogging by Nancy Morawetz, Professor of Clinical Law, New York University School of Law. Nancy coordinates the Supreme Court Immigration Law Working Group.

What can we say about Nijhawan? The seminal U.S. Supreme Court case, Nijhawan v. Holder, 129 S. Ct. 2294 (2009), analyzed by some brilliant people (ILRC Practice Advisory here NIP/IDP Practice Advisory here ). Nijhawan is the first three steps that Wile E. Coyote takes off the cliff and then realizes that solid ground has disappeared. It’s something suppressed like a bad childhood memory since the case was issued. As often as the mantra “immigration law is always changing” is repeated, one could always return to one, known, truth: you never, ever, look at the facts underling a conviction to determine its classification in the INA. We know this because the Supremes told us so in Taylor, Shepard and James. Even Matter of Silva-Trevino instructs that the analysis of a potential crime of moral turpitude begins with the categorical approach. Maybe we exaggerate the negative aspects of the case. Perhaps we have misremembered the basis of the Nijhawan decision? After reading and re-reading, we are sorry to say, no.

The holdings are simple enough (1) A fraud offense that does not include the amount of loss as an element may still be an aggravated felony as described by INA § 101(a)(43)(M)(i) and (2) an individual’s admission that the victim lost over $10,0000 at sentencing is enough to prove the loss amount. Id. at 2302, 2303. But the holdings are not the juicy part of this case; at least not the holdings standing alone. Rather, it is this notion of a “circumstance-specific”
approach to analyzing offenses. This radical departure from our otherwise comfortable categorical world has not gone unnoticed by our opponents. We know of at least two cases pending at the Court of Appeals where the Office of Immigration Litigation is seeking a remand to the agency so it can have the first opportunity to decide whether or not an offense is “categorical” or “circumstance-specific,”citing Nijhawan. Apparently OIL also believes that the agency’s decision should be given deference. Does Nijawan provide any support for that position?

Here is where the cartoon physics come in hand. The question one always asked (at least we did) when Mr. Coyote was racing off the cliff – if he never looked down and realized the abyss below stretched on, would he have made it to the other side? Let us, for a moment, look ahead.

Fresh highlighter in hand, we printed a clean copy of Nijhawan and sat down to ponder OIL’s position. In the end, we are persuaded that their argument fails because the Court’s conclusion that aggravated felony fraud definition in the INA calls for a “circumstance specific” analysis relied heavily upon its ability to distinguish elements from non-elements of a criminal offense. This is inherently a criminal law inquiry over which the agency has no expertise and therefore not entitled to deference.

In one instance, the Court notes that the “in which” language of “in which the loss to the … victims exceeds $10,000”can theoretically refer to the elements or the facts involved in the actual commission of the offense, not to the elements of the offense, but concludes it must not be an element given that virtually no federal or state fraud offense that met the definition. Id. at 2301-2. Elsewhere, the Court notes that applying the categorical approach to a non-element fact would be problematic because it would require a special verdict on a fact that is not an element. Id. at 2303. Though far from direct holdings, recalling that the Supreme Court appeared nearly certain that the amount of loss to the victim is not an element of a fraud offense, where an offense is somewhat ambiguous, there may be room to distinguish Nijhawan.

A statue containing ambiguous language is not necessarily subject to a “circumstance-specific” approach. If the language clearly refers to a generically-described crime and there is even a chance that it describes an element of the offense, the categorical approach should apply. The Court admits that the Armed Career Criminal Act, the statute at issue in Taylor, includes ambiguous language that is still subject to the categorical approach. While the interpretation is more difficult where there is ambiguous language, some ambiguity where the language refers to crimes as generically defined as opposed to the way in which the offense was committed. Id. 2300.

By studying the decision we may not be able to remove Nijhawan from our list of least-favored-cases, but we can better defend against misapplications of the case and minimize further erosion of our beloved categorical approach. Don’t look down.

–Blogging by Maria Andrade, AILA Amicus Committee

Last December, the U.S. Supreme Court granted certiorari in CARACHURI-ROSENDO V. HOLDER (09-60) to consider whether “Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.” Last week, AILA signed on to an amicus brief submitted by 18 other “community groups, civil rights organizations, immigrant justice organizations and legal service providers.” The brief can be found here.

One of the 21-part definition of “aggravated felony” is a “drug trafficking crime (as defined in section 924(c) of title 18).” Section 924(c) defines the “drug trafficking crime” as “any felony punishable under the Controlled Substances Act [CSA].” Simple possession of a controlled substance is ordinarily a misdemeanor under the CSA. However, under the CSA, when a person unlawfully possesses a controlled substance after already sustaining a prior state or federal possession conviction, the prosecutor has the option of seeking a recidivist sentencing enhancement. If pursued successfully by the prosecution, this sentencing enhancement would convert what would normally be a misdemeanor into a felony. So, what if a person sustained two or more convictions for simple possession but the prosecutor never sought a recidivist enhancement, but could have? The Seventh and Fifth Circuit Courts of Appeal have concluded that a subsequent simple possession conviction could be considered an aggravated felony because, hypothetically, the offense could have been prosecuted as a felony. So far, four other circuit courts and the BIA disagree with the 5^th and 7^th Circuits. The Supreme Court took the case to resolve the Circuit split.

Attorneys for Carachuri submitted a brief which examines the statutory language and effectively argues why the “hypothetical felony” rule is bad law. The Amicus brief examines the impact of the “hypothetical felony” rule on the lives of immigrants with minor criminal records. Using examples from real cases, the authors paint a grim picture of long-time residents being separated from family in the United States based solely on minor drug convictions. They also detail success stories of aliens granted relief from removal outside the 5^th and 7^th Circuits. The Amicus Brief in Carachuri represents a refreshing departure from our system’s robotic and unemotional adherence to statutory interpretation. The Amicus Brief asks more matter-of-fact questions: In light of the harsh consequences which flow from the “aggravated felony” label, does the 5^th and 7^th Circuits interpretation of the INA make sense? Does it make sense to stretch the law, and re-characterize misdemeanor acts as felonious acts, in order to forcibly deport permanent residents? In doing so, aren’t we categorically condemning the exact type of person (resident aliens with minor convictions but also established family and economic ties to our country) who would normally be deserving of a favorable exercise of discretion in Immigration Court?

It is my hope that as the Justices examine Carachuri’s statutory argument, they also take time to consider the impact of their ruling on the lives of the ordinary people, as effectively described in the Amicus Brief.

If the Supreme Court issues a decision and the courts don’t pay attention, does it make law?We understood the Negusie decision to be a fundamental shift in how the courts and, more importantly, the immigration agencies, would analyze asylum claims where the so-called persecutor bar was at play. Negusie v. Holder, 129 S. Ct. 1159 (2009)The Supreme Court explained, in rather clear, unmistakable terms (or so we thought) that everyone has gotten the persecutor analysis wrong for the last fifty years.

After Negusie was decided, the Fifth Circuit remanded the case to the Board of Immigration Appeals.The Board then set the case for briefing and invited interested organizations, including AILA, to file any additional briefs or argument about how Negusie should be implemented.With little explanation, the Board canceled the briefing scheduling leaving the parties to wonder that perhaps they were taking Justice Kennedy’s rather strong suggestion that for this issue rulemaking is the better alternative for law-making.

We thought we would test our understanding of the Negusie case with the United States Court of Appeals for the Sixth Circuit.Appearing as an amicus in a petition for rehearing (something we seldom do anymore) in the case of Parlak v. Holder.The panel decision can be found at here.

By every account we are aware of, Mr. Parlak is a credit to his community.He received asylum because of persecution he suffered in Turkey on account of his leading role in the Kurdish freedom movement, including an arrest in 1988.He did not disclose this arrest in his successful adjustment of status application or his unsuccessful naturalization application.According to the court, this omission was a material misrepresentation, even though this was the very basis of his asylum claim and was well documented in his file.(We thought – and still do think – that this was a bit of a stretch on the immigration agencies part to cry liar in this instance, but it was not the issue we were testing, so we passed.The National Immigrant JusticeCenter filed an excellent amicus brief on this point.)

The court’s finding that Mr. Parlak was himself a persecutor rendered him ineligible for asylum and withholding of removal.Much of the evidence came from torture-induced evidence and an in absentia conviction from a Turkish court shortly before it was disbanded as a condition for Turkey’s membership in the European Union, because of its history of torture and injustice.The dissent noted that the Immigration Judge cut-and-pasted her decision from ICE’s pre-trial briefs, errors and mis-citations included.

We supported rehearing because we think that a remand was the best course – after all, we thought, if it was good enough for the Supreme Court to think so, why shouldn’t we?On remand, the BIA could address and apply the “assisting in the persecution of others” bar to asylum and withholding of removal.The BIA’s prior definition that this means “furthering persecution in some way” was a bit too hazy for the real world.(Indeed, the Sixth Circuit agreed on this point but it was of little moment because they merely adopted a similar definition of their own and applied it to Mr. Parlak.)

The responsible agencies have indicated that the administrative interpretation of the persecutor bar is undergoing comprehensive review that ideally will provide adjudicators with a better degree of clarity through a rulemaking process.Hopefully the agencies will restore some common sense to the persecutor bar by following the federal courts’ lead of requiring that a person act with scienter and that the act bear a nexus to the ultimate act of persecution.And hopefully these changes will not come too late for Mr. Parlak and others.

The Sixth Circuit denied Mr. Parlak’s petition for rehearing.In a spirited and colorful dissent, Judge Martin thrice stressed that a “Turkish prison” is no joke and took issue with the handling of these proceedings by the government and his fellow judges.There is even a nod to The Colbert Report.

– blogging by Russell Abrutyn, AILA Amicus Committee

On February 3rd the Third Circuit heard oral argument in the case of Valdaviezo-Galdamez v. Holder (case no 08-4564). This case was previously the subject of a precedent opinion in Valdaviezo-Galdamez v. Atty Gen’l, 502 F.3d 285 (3rd Cir. 2007). A copy of the Court’s opinion can be found here: http://www.ca3.uscourts.gov/opinarch/062080p.pdf%22%3Ehttp://www.ca3.uscourts.gov/opinarch/062080p.pdf. The original decision was a strong one for our side of this issue. The Court expressed an openness to considering “whether the group of which Galdamez claims to be a member – ‘young Honduran men who have been actively recruited by gangs and who have refused to join the gangs’ – is a ‘particular social group’ within the meaning of the Act.” It cited several favorable decisions on that issue but remanded because the issue had not been addressed by the Board or the IJ below.

The current case resulted in a Board denial after the issuance of its precedent decisions in S-E-G- 24 I&N Dec. 579 and E-A-G 24 I&N Dec. 591. The Board did not review the matter in a manner consistent with the Court’s opinion. It also did not provide counsel with the oppportunity to brief the issues. It also did not remand the matter directly to the IJ (as might have been appropriate given that the IJ had never addressed the issue in the original decision). Rather, it simply cited to S-E-G- and E-A-G- in holding that no social group had been established.

AILA member Ayodelle Gansallo, of HIAS in Philadelphia, is pro bono counsel for Mr. Valdaviezo. The UN High Commission on Refugees also provided an amicus brief on the issue for the Court. We will keep you apprised of developments.

We tried.We really did.We studied the issue extensively.We strategized on approaches. We enlisted the talented students at the Stanford Immigrant Rights Clinic. We drafted two amicus briefs (one is available here). But still!Kawashima III is that important dinner guest whom you’ve been courting for awhile, who shows up late, swills your expensive wine quickly like it was water from the tap and after the pears poached in Campari are cleared, he belches, grabs his jacket and leaves.It makes one feel used, like a car. That is the way it works sometimes in our adjudication system because, alas, Article III of the United States Constitution does not grant us the power to decide law.

The Ninth Circuit recently issued its third published decision in the ongoing Kawashima litigation.Kawashima v. Holder, Slip Op. Docket Nos. 04-74313 and 05-75508, 2010 U.S. App. LEXIS 1839 (9th Cir. 01/27/2010)(Kawashima III).See also Kawashima v. Gonzales, 503 F.3d 997 (9th Cir. 2007)(Kawashima I), withdrawn Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008)(Kawashima II), withdrawn Kawashima III, supra.The Kawashima cases involve the government’s efforts to remove two long-time permanent residents, a husband and wife, each convicted of a federal tax offense by guilty plea in 1997.In 2001, the government commenced removal proceedings against Mr. and Mrs. Kawashima, charging that each had been convicted of an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000″ within the meaning of INA § 101(a)(43)(M)(i), and therefore was subject to removal under INA § 237(a)(2)(A)(iii), for having been convicted of an aggravated felony at any time after admission.

The analysis required in Kawashima – and the analysis that Nijhawan requires – isn’t all that complex.Even so, the panel lead by Judge O’Scannlain, didn’t apply it correctly.In the latest chapter of their roller-coaster litigation saga, the Ninth Circuit upheld Mr. Kawashima’s removal order (after having vacated it in Kawashima II and upholding it in Kawashima I), and remanded Mrs. Kawashima’s proceedings to the Board of Immigration Appeals (after having vacated her removal order in both Kawashima I and II).The purpose of Mrs. Kawashima’s remand is for the Board to determine what types of evidence may be considered under Nijhawan v. Holder, 129 S.Ct. 2294 (2009), to establish the tax loss to the government as the victim of Mrs. Kawashima’s crime.In other words, Mrs. Kawashima loses by winning.As explained by the Ninth Circuit,

[Nijhawan] added a new step to the familiar categorical/modified categorical approaches first announced in Taylor v. United States, 495 U.S. 575 (1990).Under this approach, we must first decide whether a requirement under a generic crime is an “element” of the generic crime instead of simply a description of the “particular circumstances” in which the offender committed the crime on a specific occasion.If the requirement is an “element,” we apply the Taylor approach; if the requirement is “circumstance specific,” we ensure that the BIA used “fundamentally fair procedures” to determine whether the offender’s crime satisfies the description of the generic offense.

Kawashima III, Slip Op. at 1664 (internal citations omitted).Consequently, because the BIA has not had an opportunity to decide Mrs. Kawashima’s case in accord with the fundamentally fair procedures required by Nijhawan, the Court ordered a limited remand of her proceedings to the Board for a ruling in the first instance.Id. at 1669.

Curiously, the Court applied a circumstance-specific approach to affirm Mr. Kawashima’s removal order without remanding it first to the Board for consideration.With little discussion, the Court concluded that Mr. Kawashima’s stipulation in his written plea agreement as to the tax loss to the government was consistent with fundamentally fair procedures.Id. at 1665.In Mrs. Kawashima’s case, on the other hand, none of the documents cognizable under a modified categorical approach in her record of conviction establishes the amount of loss to the government.Id. at 1666 – 1669.

As explained (we thought quite convincingly) in our second amicus brief filed in the Kawashima case in August 2009, we believe that Nijhawan abrogated, in part, the Board’s decision in Matter of Babaisakov, 24 I & N Dec. 306 (BIA 2007), in which the Board rejected any limitations on the types of evidence that may be considered to determine the amount of loss to the victim under INA § 101(a)(43)(M)(i).We have no problem – as an analytical matter – with the Board having the first opportunity to publish a new decision that implements the Supreme Court’s decision in Nijhawan. Indeed we asked the Kawashima panel to do just that with Mr. Kawashima’s case – send it back to the Board for a decision in the first instance. But the court applied Nijhawan itself to deny Mr. Kawashima’s petition for review. And somewhat inconsistently sent Mrs. Kawashima’s back to the BIA for a determination of what types of evidence outside the record of conviction may be considered to establish the amount of loss to the victim. We admit to confusion about the panel’s inconsistent treatment of the two petitioners. In another case, we suppose.

No doubt there will be many additional developments in light of Nijhawan and its progeny, such as Kawashima III.AILA members briefing cases involving the application of Nijhawan’s circumstance-specific approach are invited to contact the Amicus Committee.

– blogging by Debbie Smith, AILA Amicus Committee

The Tenth Circuit recently held that K-2 visa holders do not “age-out” for purposes of adjustment of status. The case is Colmenares Carpio v. Holder, No. 08-9536 (10th Cir. Jan 12, 2010). This case was decided on a Petition for Review of the BIA decision finding Mr. Colmenares Carpio ineligible for adjustment of status.

The petitioner entered the United States in K-2 status 6 months before turning 21. His mother married the US citizen within the required 90 days, and the petitioner and his mother applied for adjustment of status before he turned 21. USCIS took two and a half years to decide his application for adjustment of status. USCIS denied the application based on Petitioner’s age on the date of adjudication of the application. An Immigration Judge found that Petitioner was not eligible to adjust status because he was over the age of 21, and the BIA affirmed with a one paragraph unpublished decision.

The Government argued that the BIA should be given deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) since the statutory scheme is ambiguous. The Court rejected that argument on a so-called Chevron “step zero” analysis. This “step zero” was created by United States v. Mead Corp., 533 U.S. 218 (2001), which held that the agency interpretation to be given deference to must be an agency rule or decision that carries the force of law, such as notice and comments rules or binding precedential decisions. The Tenth Circuit held that the BIA decision is not to be given deference under Chevron since it was not a binding precedential decision but merely a routine adjudication issued by a single Board member, and did not rely on previous BIA precedent. The Court went on to find that the BIA and IJ decisions were not even warranted the lesser deferential standard set forth in Skidmore v. Swift & Co., 323 U.S. 134 (1944) as they were unpersuasive.

The Court went on to do an analysis of statutory construction and found that there is no age limitation on adjustment of status of K-2 visa holders. It also relied on Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008) and Verovkin v. Still, No. 07-3987, 2007 WL 4557782 (N.D. Cal. Dec. 21. 2007). It is important to note here that the Verovkin decision decided the issue narrowly on the facts in that it found that the applicant was eligible since the marriage and the application for adjustment of status were both concluded before turning 21. The only thing that was left was the USCIS adjudication. The Verovkin decision declined to address other scenarios such as when the marriage or the filing of the application occur after turning 21 as was the case in Jiang v. Still, 307 Fed. Appx. 74; 2009 U.S. App. LEXIS 446 (9th Cir. 2009) (unpublished).

The Tenth Circuit took a bigger step in finding that the age of the K-2 visa holder matters only in regards to when the K-2 “seeks to enter the United States”. This takes the Verovkin decision a step further, and leaves open a door for applicants who may have “aged out” before the qualifying marriage and the application for adjustment of status took place. Interestingly, the Tenth Circuit did not address the Jiang holding.

This exact issue is now before the BIA on several cases. AIC recently filed an amicus brief with the Board that addresses all the K-2 age out issues at length. Hopefully this Tenth Circuit decision will have an impact on the BIA decision on this issue that could come out any day.

Bayo v. Napolitano, No. 07-1069, — F.3d —-, 2010 WL 174231, (7th Cir.Jan. 20, 2010)

En banc, the CA7 is a tough nut to crack.Oral argument was heart-stopping.The questions came fast and hard: it seemed that every egg in the petitioner’s basket had been cracked.The question for us became: just how bad were we going to lose?

It was clear from the opening sentence of the Seventh Circuit’s first en banc immigration decision that the court was not fond of the petitioner. “Mohammed Bayo is not the most sympathetic of litigants,” Judge Wood dryly observed. She listed off his flaws: Mr. Bayo, a citizen of Guinea, had stolen a Belgian passport and used it to enter the United States; through his fraud, he was able to take advantage of the generous terms of the Visa Waiver Program (VWP) that the United States has set up for residents of certain favored countries. Given the Court’s dislike for Mr. Bayo’s actions, we were not surprised that it upheld his deportation order.

Then, in a Harry Truman-Chicago Tribune moment, we realized that the court’s decision, though unfavorable to Mr. Bayo, notably advances the constitutional rights of immigrants in theUnited States.The nut was cracked!

As most readers of this blog will know, residents of VWP nations can enter theUnited Stateswithout first obtaining a visa, in exchange for waiving their right to contest removal in the future. But it is not uncommon for VWP entrants who have overstayed their visas to seek adjustment of status, and USCIS often approves these cases without fuss. That was not to be the case for Mr. Bayo. When, after four years in theUS, he tried to become a lawful permanent resident through his marriage to aUnited Statescitizen, DHS issued an administrative removal order against him.

Bayo appealed, raising two principal arguments. First, he contended that he should be able to contest his removal and adjust status because at the time he signed the VWP waiver, he did not fluently speak English and did not know what he was signing. Second, he urged that under a plain reading of the Immigration and Nationality Act (INA), “immediate relatives” (including spouses ofUnited Statescitizens) are authorized to adjust status irrespective of the VWP waiver.

Initially, Mr. Bayo enjoyed some success in the Seventh Circuit. It’s possible that this was due more to the Government’s overreaching than to the merits of his own case. Although the right to a knowing and voluntary waiver of a constitutional right is a longstanding feature of Anglo-American jurisprudence, the Office of Immigration Litigation (OIL) argued that immigrants like Mr. Bayo have no constitutional right to a knowing or voluntary waiver, since the VWP waiver is entered into while they are at the border, seeking admission. Of course, theNewarkairport where Mr. Bayo entered theUSis not literally a border, but is considered, under a longstanding “entry fiction” in immigration cases, to be tantamount to a border. It didn’t matter, according to OIL, that VWP entrants were prospectively waiving the constitutional rights that they would acquire throughUSresidency. At first OIL also seemed to put no limit on the reach of its logic; under OIL’s initial theory (which it later tempered somewhat), the government could trick or coerce immigrants into waiving their right to a hearing.

Judge Rovner, the author of the Seventh Circuit’s original opinion, rejected this logic with an equally sweeping theory of her own. Citing to the Supreme Court’s recent Boumediene v. Bush, 128 S. Ct. 2229 (2008) decision concerning the right to habeas of Guantanamo detainees, Judge Rovner noted that the Constitution applies, in some circumstances, even outside the US. Therefore, the panel ordered Mr. Bayo’s case remanded for a hearing concerning whether his waiver was knowing and voluntary. Unsurprisingly, OIL filed a petition for rehearing, and Judge Rovner’s liberal reading of the Constitution on behalf of an unsympathetic immigrant may have been the linchpin to the Court’s granting, for the first time ever, en banc review of an immigration case.

On January 20, 2010, the en banc Court issued its decision in Bayo v. Napolitano. It first considered an important threshold question: whether it even had jurisdiction. OIL had argued that the Court did not have jurisdiction to review Mr. Bayo’s claim that he should be allowed to adjust status, because the VWP provision precluded review of all but the essential questions as to the Government’s deportation authority. The Court seems to have rejected this argument, since it found that it had jurisdiction to consider every issue before it, including the adjustment of status issue.

Next, the Court rejected an argument Mr. Bayo had raised in supplemental briefing after oral argument: that he was not subject to the VWP because he is not actually a citizen of a VWP country. The Court noted that the Board of Immigration Appeals had rejected this analysis in a prior published case, and the Court found that it was required to defer to the Board’s reasonable analysis.

The Court then went on to consider whether Mr. Bayo was entitled to a knowing and voluntary waiver, finding a simple and elegant way to avoid the contentious question of what “extraterritorial” rights immigrants have when they are at the border. Since Mr. Bayo had been residing in theUSfor years, the Court held that the “entry fiction” does not apply to him. The right he was waiving-the right to a hearing to contest his removal-is a constitutional right guaranteed to immigrants, like Mr. Bayo, who have lived in theUS. Unlike contractual rights, constitutional rights can, the Court said, only be waived through a knowing and voluntary waiver. And the Court refused to adopt a presumption of knowledge, as OIL had urged. Citing to the amicus brief filed by AILA and the Legal Assistance Foundation of Chicago, the Court explained that this course could negatively impact immigrants with strong and sympathetic claims to stay in theUS, like trafficking victims. Thus, the Court ultimately found that there must be some process to assure that VWP waivers are knowing and voluntary, although it expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given a newly implemented waiver process that is available in 21 languages.

Unfortunately for Mr. Bayo, the Court found that even if his waiver was unknowing and involuntary, he still could not win his case. The reason, according to the Court, was that he couldn’t show prejudice, since if he hadn’t signed the waiver, he wouldn’t have been allowed in theUS in the first place. The original panel had asserted that Mr. Bayo was prejudiced because he lost his right to pursue adjustment of status; if he had refused to sign he could have returned toGuinea, obtained a visa, come back, married, and adjusted status. Judge Wood found that this type of prejudice was simply too speculative.

The Court also rejected Mr. Bayo’s claim that he ought to be able to adjust status in the United States. This decision came as no surprise, since the majority of courts have held that a VWP entrant cannot adjust status, unless the application is filed within the 90-day term of their nonimmigrant visa. Still, these decisions are problematic from an immigration practitioner’s perspective. First, as those of us who do this work know, VWP overstays adjust status all the time. (Hopefully the Bayo decision will not dramatically change USCIS’s current practice of allowing most of these adjustments to go forward.) Second, the 90-day distinction is counterintuitive, since USCIS is typically suspicious of a tourist nonimmigrant who immediately gets married. Such newly-weds are thought to have “immigrant intent,” which USCIS considers entirely the wrong way for a tourist to be thinking about her trip. This is not to say that tourists never fall in love, as those of us who have seen Roman Holiday know full well. Maybe Judge Wood was confusing Sandra Bullock for Audrey Hepburn. Whatever.

It is no joke that Mr. Bayo lost, and the Court’s decision raises the specter of additional denials of VWP adjustment of status cases in the future. At the same time, the decision contains a thoughtful and important analysis of the constitutional rights of immigrants in the US. After Bayo, VWP entrants in the Seventh Circuit who can show some type of prejudice should be able to demand a hearing as to whether their waiver was knowing and voluntary. For example, an immigrant presumably could show prejudice who can show facts existing at the time of her entry that would have given rise to a claim for immigration relief. The decision also could pave the way for challenges, in appropriate cases, to unknowing and involuntary stipulated orders of removal. In the end, one could say that Mr. Bayo won the war, even if he lost his battle.