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 The BIA affirmed because they explained, in an unpublished opinion, that Delgado had been convicted of a particularly serious crime.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.

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.

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

by Stephen Manning, AILA Amicus Chair & Laura Lunn, 2010 ILG Summer Immigration Litigation Fellow

Awhile back, we did a round up of litigation taking place under the Visa Waiver Program.  The post is available here.  In one of the cases we blogged on, the petitioner sought Supreme Court review.  (AILA Amicus guidelines for assistance at the Supreme Court stage are available here).

In Bradley v. Holder, the government filed a Brief in Opposition to the cert request.  While it seems doubtful that the Supreme Court will grant certiorari to hear the argument given the government’s position and the general state of the law among the circuits, the government’s brief presents the position of the United States.  Indeed, the brief can be cited in litigation as the considered interpretation of the statutes and policy of the  United States as it comes from the Solicitor General.

The government’s brief on the issue clarifies its position on adjustment of status for applicants that entered the United States through the Visa Waiver Program (VWP), codified in 8 C.F.R. §217. The question presented was “[w]hether an alien who waived his rights under the VWP and who has overstayed the term of lawful admis­sion may contest his removal by applying for adjustment of status and demanding the right to present that appli­cation to an immigration judge in removal proceedings.” Although the government strongly opposes an applicant’s right to review under these circumstances, it delineates occasions when an individual admitted under the Visa Waiver Program has the ability to adjust their status to that of a legal permanent resident (LPR). Specifically, VWP entrants are eligible to become LPRs through “marriage or other immediate family relationship to a United States citizen.” This means that VWP entrants can file an I-130 petition for an alien relative and can also apply for adjustment of status under the I-485 application, approval of which is left up to USCIS’s discretion. Additionally, the government’s brief acknowledges that the Department of Homeland Security (DHS) has discretion when determining whether or not to place a WVP entrant in removal proceedings. While the government did not exercise a favorable act of discretion in Mr. Bradley’s case, hope is not lost for many more individuals seeking to adjust their status through marriage after their allotted 90-day stay expires.

The government’s position in Bradley can be summarized as this: Mr. Bradley came to the United States and gained lawful entry through the VWP. It was the fifth time he entered the United States under the VWP, which indicates that he understood the terms of the program since he benefitted from it numerous times before. However, this final time he overstayed his visa and lived and worked unlawfully in the United States for ten years before he married his wife. At that point they filed an I-130 petition for an alien relative and an I-485 for Mr. Bradley to become an LPR based on their marriage. Meanwhile, the couple failed to appear for their marriage interview and USCIS denied their applications because they were deemed abandoned. The couple appealed the denial of the I-485, but the Board of Immigration Appeals (B.I.A.) denied the appeal because under the Visa Waiver Program the Board lacks jurisdiction. Subsequently, DHS placed Mr. Bradley in removal proceedings. He sought review of the order of removal which the Court of Appeals denied. The holding of the Court followed precedent set by six other circuits and determined that respondent “may not, after the expiration of his 90-day stay, adjust his status as a defense to removal.” Mr. Bradley also filed a second I-130 which was granted but USCIS denied his second I-485 application for adjustment of status. The denial was a matter of discretion and the decision was based on factors including Mr. Bradley’s “unauthorized employment in the United States and his overall disregard of the immigration laws.”

In the government’s brief in opposition, it describes the ways in which Mr. Bradley failed to follow protocol for obtaining legal status in the United States. He overstayed his visa for an extended period of time, meanwhile working illegally. When he did petition to adjust his status to that of a legal permanent resident through his marriage, he and his wife failed to attend the interview. It was only after this that DHS decided to remove Mr. Bradley from the country. The government asserts that Mr. Bradley could not adjust his status as a defense to removal after the expiration of his visa. As a VWP entrant, Mr. Bradley waived his right to a removal proceeding and therefore could not appeal to the Board when USCIS made the determination that he abandoned his application. However, and this is the good news as a matter of law and policy: the government affirms that DHS has the discretion not to execute a removal order against someone admitted under the VWP who then overstays the allowed 90-day period and permit that individual to adjust.

In Mr. Bradley’s case, USCIS weighed both favorable and negative factors in making its discretionary determination to deny his I-485 application for adjustment of status. While USCIS acknowledged that he was married to a U.S. citizen, the multiple negative factors outweighed the positive and his application was denied—a result that could potentially be avoided if the factors weighed in his favor.

Favorable factors that bear on a positive exercise of discretion may include but are not limited to the following: (1) being a spouse of a U.S. citizen; (2) having an approved I-130 petition; and (3) evidence of good moral character. Thus, the relief that either DHS or USCIS had the discretionary authority to grant Bradley was not offered and the government remained firm that eligibility for adjustment of status is not a defense to an order of removal. Nevertheless, according to the government’s brief, other VWP entrants are not  barred from relief if they overstay their 90-day visa and later attempt to adjust their status through marriage.

The Solicitor General merely restates — and makes policy that ought to bind USCIS — what has been the common practice and experience for most (but not all) field offices across the country.

If you have a case that raises an issue addressed in this (or any AILA Amicus) blog post, please send the info to amicus@aila.org.  AILA is interested in tracking these cases and may provide intervention when appropriate.

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

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

–

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

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

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

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

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

–

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

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

–

INA 208(a)(2) Exceptions. -

(A) Safe third country….

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

(C) Previous asylum applications…..

(D) Changed conditions….

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

–

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Challenges to Adequacy of the Record

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

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

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

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

“Aging out” issues: K-2 and CSPA

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

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

Asylum-related concerns

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

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

Matter of Shanu and the meaning of “admission”

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

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

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