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 The BIA affirmed because they explained, in an unpublished opinion, that Delgado had been convicted of a particularly serious crime.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

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:

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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.

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.

There is an internal struggle in the 4th Circuit regarding the Court’s review of asylum claims. The fact that there is a struggle at all is a sign of progress as the Fourth Circuit (based in Richmond, VA) is traditionally viewed as a very conservative court.

Last summer, a divided panel of the 4^th Circuit held, in part, that the record did not compel reversal of a BIA Withholding of Removal denial – a claim involving an adult Senegalese woman who fears female genital mutilation (FGM). The majority upheld the BIA denial because the record established FGM was “rare in large urban areas” and “90% of the women who undergo FGM in Senegal are between the ages of two and five.” Gomis v. Holder, 571 F.3d 353, 360 (4^th Cir. 2009). Judge Gregory wrote a vigorous dissent, finding Gomis’ facts and fears “indistinguishable” from a Judge King-penned FGM decision, Haoua v. Gonzales, 472 F.3d 227 (4^th Cir. 2007). Judge Gregory closed his dissent as follows:

The IJ found Gomis credible, which means that her testimony regarding the practices of her specific ethnic group should have been properly considered, along with the abundance of evidence from her family that she will be circumcised upon her return. Only by reading the State Department’s report generally, and isolating Gomis’s age and urban upbringing in order to apply them blindly to the statistics presented, can one possibly conclude that Gomis is unlikely to undergo FGM. To deny her withholding of removal and send her back to Senegal, to virtually certain circumcision, would be a great miscarriage of justice. If we choose to ignore the blatant evidence before us of her specific situation by shielding our eyes with general statistics, then we will be sending her to a torturous future of which I shudder to imagine.

Id. at 364 -365. Judge Gregory felt so strongly about the potential “miscarriage of justice” that he requested en banc review. Gomis, herself, did not request rehearing or en banc review, but rather unsuccessfully sought certiorari before the U.S. Supreme Court. Judges Michael, Motz, King, Gregory, and Duncan voted to rehear this case, and Chief Judge Traxler along with Judges Wilkinson, Niemeyer, Shedd, and Agee voted to deny rehearing en banc. FIVE TO FIVE! But you need a majority for en banc review – so review was denied in another published decision released last September. Gomis v. Holder, 585 F.3d 197 (4^th Cir. 2009). Judge Gregory wrote another blistering dissent.

While Gomis herself lost, subsequent published asylum decisions reveal that the 4^th Circuit may be reexamining its self-described “deferential role” in reviewing asylum, withholding, and CAT denials. In fact, asylum seekers have been on a roll in the 4^th Circuit all fall and winter! In Baharon v. Holder, 588 F.3d 228 (4^th Cir. 2009), a panel led by Judge Gregory found the BIA’s conclusion that Baharon was not subjected to past persecution in Yemen was “clearly erroneous.” The IJ and BIA erred by reducing Baharon’s treatment to a single, three-day detention, despite crediting his testimony as credible. The panel concluded the IJ and BIA had ignored the other evidence of past persecution that was within the record. In Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir.2009), another panel led by Judge Gregory concluded an adverse credibility finding was not supported by substantial evidence, and that Kourouma has established past persecution in the form of female genital mutilation. The Court concluded the IJ was hung up on Kourouma’s nationality, but the BIA found she was from Guinea. Significantly, Judge Gregory noted that the BIA should have considered how the country condition documents of record corroborated Kourouma’s testimony. Finally, in Marynenka v. Holder, 592 F.3d 594 (4^th Cir. 2010), a panel (which included Judges Michael and Gregory) concluded the IJ improperly denied a rape-based asylum claim based on lack of corroborating evidence. For example, the panel found a physician’s letter should not have been discredited solely because it was “not written on printed letterhead” and was lacking a “chain of custody.” Id. at 601. The IJ should not have found that waiting “overnight to seek medical attention after a traumatic sexual assault” implausible. “[I]f anything,” Judge Michael wrote, “it is understandable.” Finally, the panel rejected the IJ’s discrediting of an affidavit written by a person seemingly available to testify. In what later may be the most quoted sentence of the opinion, Judge Michael wrote, “There is no general rule that evidence offered in corroboration requires independent corroboration.” Id. at 602.

Clearly, these three cases reveal a less deferential Circuit Court. We shall see how asylum law continues to develop within the Fourth Circuit. A new Immigration Court opened in Charlotte, North Carolina in late 2008, which will have the effect of sending additional cases to the 4^th Circuit. And the Gomis tie will now be broken with the addition of new judges. Three days ago, the Senate unanimously confirmed Virginia Supreme Court Justice Barbara Milano Keenan to a seat. There remain four more vacancies to the Court.

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.

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.

The Board has scheduled oral argument on Matter of T-, a case in which AILA appeared as an amicus along with the American Immigration Council and the Northwest Immigrant Rights Project. The BIA queried the parties on:

(a) Whether the Board, invoking the Supreme Court’s decision in Brand X, may decline to follow the Ninth Circuit’s “disfavored group” analysis?
(b) What is the impact the Ninth Circuit’s decisions in Sael v. Ashcroft, 386 F.3d 922 (CA9 2004) and Wakkary v. Holder, 558 F.3d 1049 (CA9 2009) on the disfavored group analysis?

The petitioner’s is represented by Drew Sieminski of the law offices of Chung Phang. Individuals with cases before the Board raising a similar issues might wish to contact AILA amicus.