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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4 – Litigate and Advocate, but first Advocate.

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

5 – Coordinate.

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

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

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

JUDICIAL IMMIGRATION WARNINGS

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

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

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

RETROACTIVITY

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

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

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

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

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

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

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

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

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

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

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

Mr. Holder, where art thou?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By Russell Abrutyn, AILA Amicus Committee member

In Soumah v. Holder, No. 09-3490 (6th Cir. Dec. 20, 2010) (unpublished), the court affirmed the denial of a motion to rescind an in absentia order. During the two year delay between the issuance of the Notice to Appear (NTA) and its filing with the Immigration Court, the alien moved. He notified the Department of Homeland Security (DHS) of his new address. The DHS even mailed correspondence to him at his new address. However, he did not notify the Immigration Court. When the DHS filed the NTA with the court, it used the alien’s old address. Predictably, the alien did not receive notice of the hearing and was ordered removed in absentia.

The Soumah decision highlights the importance of perfecting the record, making available arguments at the administrative level, and seeking amicus help early in the case.

This decision is unpublished, so for now its impact is hopefully minimal. This may change because the Government has filed a motion to publish the decision. Because of the sparse recounting of the facts and the absence of a discussion of the practical realities of Immigration Court practice from 2004-2006, publication of this decision would unduly restrict the ability of aliens who made a good faith but unsuccessful effort to apprise the government of their new address to rescind in absentia orders.

When the DHS issues an NTA, it is required to notify the recipient of his or her duty to provide the Immigration Court with a written record of a change of address. INA § 239(a)(1)(F). Once the NTA has been filed with the Immigration Court, the alien must file Form EOIR-33 within five days of moving. 8 C.F.R. § 1003.15(d). The failure to do so relieves the Immigration Court of providing the alien with notice of a hearing at the alien’s current address. INA § 239(a)(2)(B).

The Sixth Circuit assumed, without discussion, that the alien had the ability to notify the Immigration Court of an address change before the DHS filed the NTA. Until 2006, this was not true. For example, 8 C.F.R. § 1003.15(d) requires an alien to file an EOIR-33 change of address form with the Immigration Court “where the charging document has been filed.” Of course, in Mr. Soumah’s case, he moved before ICE filed the charging document .

By March of 2006, EOIR had changed its policies with little fanfare to comply with INA § 239(a)(3)’s mandate to maintain a central address file. (see pages 6-7). It is unclear when this policy change took effect and how it was publicized to the immigration bar and the noncitizen community. This should have been a question of fact for the Immigration Judge to consider in adjudicating the motion to rescind.

The DHS knew that Mr. Soumah moved. The court did not consider the extent of the DHS’s duty to provide the Immigration Court with accurate information when it finally filed the NTA. By providing outdated and inaccurate information to the Immigration Court, the DHS was able to deprive an adversarial party of an opportunity to be heard. It should be noted that Mr. Soumah filed a timely affirmative asylum application and maintained contact with the DHS throughout these proceedings. He wanted to be heard.

The Sixth Circuit also did not consider a number of prior decisions, including Beltran v. INS, 332 F.3d 407 (6th Cir. 2003). The Beltran Court reversed the BIA and rescinded an in absentia order. Even though the alien did not file his change of address notice on the proper form, his letter to the INS was sufficient to put the government on notice of his correct address.

In Terezov v. Gonzales, 480 F.3d 558 (7th Cir. 2007), the court reversed the denial of a motion to rescind an in absentia order. The BIA erred in failing to consider the alien’s evidence that he notified the DHS of his new address. In Kamara v. INS, 149 F.3d 904 (8th Cir. 1998), the court also reversed the denial of a motion to rescind an in absentia order. The alien’s uncle and bond obligor told the INS that the alien would be living with him. The INS failed to update its records so the hearing notice was sent to the wrong address. Similar cases include Santana Gonzalez v. A.G., 506 F.3d 274 (11th Cir. 2010); Manjiyani v. Ashcroft, 343 F.3d 1018 (9th Cir. 2003).

At this stage in the proceedings, it will be difficult for Mr. Soumah to present these issues to the court. If the decision is published, or even if it is not, it would not be surprising if ICE and OIL rely on its reasoning in opposing motions to rescind in absentia orders. Counsel will need to be prepared to develop the record at the earliest stages of the proceeding and distinguish Soumah.

Attorneys with this issue, especially those within the Sixth Circuit, should email Amicus@aila.org.

By Scott D. Pollock, AILA Amicus Committee member

Several federal courts have addressed provisions of the INA that raise the issue of when a person is in “status” in the U.S.  The resolution of this issue seems to depend largely on the context in which the question is asked, and partially whether the government’s actions are seen as reasonable or fundamentally unfair.

Samirah v. Holder- Return to “status” held upon termination of parole or advance parole

In Samirah v. Holder, 08-1889 (7^th Cir. 12/3/2010) the Seventh Circuit Court of Appeals ordered the Attorney General to return an applicant for adjustment of status to the U.S. so that he could pursue his pending application.  While Mr. Samirah was temporarily outside the U.S., the government revoked the advance parole document it previously approved (would have allowed for his return to the U.S.  It then claimed that its action deprived Mr. Samirah of a right to return to the U.S. and also that its action was unreviewable by any court.  The court granted relief under the mandamus statute, which provides authority for a court to compel a government official to perform a non-discretionary legal duty.  28 U.S.C. § 1361.  The court found such a legal duty in the USCIS regulations at 8 C.F.R. § 212.5(e)(2)(i), which states that “upon accomplishment of the purpose for which parole was authorized, or when in the opinion of one of [designated] officials… neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States, parole shall be terminated upon written notice to the alien and he or she shall be restored to the status that he or she had at the time of parole.”  The court decided this regulation required the government to restore Mr. Samirah to the status of an applicant for adjustment of status, which requires him to be physically present in the U.S.  The court rejected the government’s argument that an applicant for adjustment of status is not a “status” within the meaning of the regulation.

Bokhari v. Holder- lawful status for adjustment of status eligibility

The 7^th Circuit court‘s rejection of the government’s restrictive interpretation of the regulatory term “status” is significant.  Earlier this year, the Fifth Circuit Court of Appeals in Bokhari v. Holder, No. 09-60538, 2010 WL 3768016 (5th Cir. 2010), upheld an adjustment of status denial based on a technical reading of what is “lawful immigration status.”  Mr. Bokhari had sought to extend his L-1A status, but USCIS denied the extension.  He appealed this to the AAO and, while the appeal was pending, filed an I-140 and adjustment of status application.  The AAO rejected the L-1A appeal, and later USCIS denied the adjustment application, finding that even though the I-140 petition was approved, he had been in unlawful immigration status for longer than 180 days, and thus could not adjust his status under INA § 245(k).  In challenging this decision, Mr. Bokhari argued that he was not in “unlawful immigration status” while he was pursuing his L-1A appeal and when he had been granted employment authorization pursuant to his pending adjustment application. But the court agreed with the government’s argument and sustained an immigration judge’s finding that his L-1A status had expired and neither the extension, appeal, nor work authorization conferred lawful status on him, citing 8 C.F.R. § 1245.1(d)(1)(ii) and Matter of Teberen, 15 I&N Dec. 689 (BIA 1976).  Interestingly, the court did not refer to the parenthetical exception contained in INA § 245(c)(2) that permits adjustment of status notwithstanding a violation of status if the violation was through no fault of the applicant or for technical reasons.  If this argument was made, then the court should have interpreted 8 C.F.R. § 1245.1(d)(2)(i)-(iv) to determine if Mr. Bokhari was still eligible for adjustment notwithstanding the expiration of his nonimmigrant L-1A status.

The regulation relied upon by the Bokhari court, 8 C.F.R. § 1245.1(d)(1)(ii) provides that lawful immigration status is held by “[a]n alien admitted to the United States in non-immigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter I.”   

The court thus did not find it significant that Mr. Bokhari was allowed to remain in the U.S. or authorized to be employed in the U.S.

El Badrawi- in a status or unlawfully present while an extension of status is pending?

The issue of status in the U.S. is also raised in the continuing case of  El Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008).  There the applicant for an extension of H-1B status, a pharmacologist, was arrested based on his prior H-1B status, even though the extension application was still pending.  Unbeknownst to Mr. El Badrawi, the State Department had revoked his H-1B visa in a decision that said the revocation would be effective only upon his departure from the U.S.  ICE agents, knowing that his employer, the University of Connecticut Health Services, had filed for an H-1B extension for him, arrested him, and he sued the United States in a Federal Tort Claims Act suit for claimed violations of his Fourth and Fifth Amendment rights.  In denying the government’s motion to dismiss, the court relied on 8 C.F.R. § 274a.12(b)(20), which extends employment authorization for 240 days to certain nonimmigrants who file for extensions of their current nonimmigrant status.  The court agreed with Mr. El Badrawi that this regulation, which was issued 15 years after Matter of Teberen,  precluded the defendants’ argument that he was unlawfully present in the U.S.  Since the regulation provides for employment authorization and necessarily includes the right to physically remain in the country, the defendants lacked probable cause to arrest Mr. El Badrawi.  The government recently filed another motion to dismiss, which AILA opposed in an amicus brief prepared by Melissa Crowe and Michael Boyle for AILA and the American Immigration Council. 

Lack of unlawful presence is not a lawful status?

The Illegal Immigration Reform and Individual Responsibility Act of 1996 (IIRIRA) added another layer of complexity to whether a noncitizen has a status in the U.S.  The statute penalizes persons with periods of “unlawful presence” in the U.S.  INA § 212(a)(9)(B) and (C).  But the statute and the Attorney General designate certain periods in the U.S. as exceptions to unlawful presence, including where unlawful presence is tolled for good cause. This includes when a noncitizen has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General.  INA § 212(a)(9)(B)(iv)(I)-(III).   But the DHS has rejected any interpretation that equates a period of stay authorized by the Attorney General (the so-called “POSABAG”) with that of a lawful status in the U.S., a position that the court in Bokhari accepted.

Inconclusive lessons to be drawn from these cases

Taking these cases, statutes and regulation together, few definite conclusions can be made about whether someone who entered the U.S. on a nonimmigrant visa whose I-94 card expired can be said to have a particular “status” in the U.S.  Both the Samirah  and El Badrawi courts were able to point to a regulation that protected the alien’s right to return to or remain in the U.S.  In addition, the facts in each case in some way can be said to shock the conscience.  Samirah was induced by the immigration service’s grant of advance parole to visit his sick mother in Jordan, and then had the rug pulled out from under him once he left the U.S.  El Badrawi was never told of the revocation of his visa, applied timely for an extension of status, enjoying the benefit of the regulation’s 240 day extension of authorization,  and then was arrested despite having played by the rules.  The drastic consequences of a restrictive interpretation of “status” in these contexts could not have been foreseen, and the immigration service’s actions would seem to threaten the utility of the federal regulations altogether.

By contrast, the Bokhari court purported to uphold a regulation that narrowly defined “lawful immigration status” to exclude periods in which the applicant was present in the U.S. in a period of stay authorized by the Attorney General.  Since the operative statutes at issue in Bokhari, INA §§ 245(c)(2) and 245(c)(7), bar adjustment of status to someone who (except where through no fault of his or her own or for technical reasons) is “in unlawful immigration status”  ((c)(2)) or who “is not in a lawful nonimmigrant status” ((c)(7)), it can be said that the regulations that define “lawful immigration status” are inapt or incomplete, since a “lawful immigration status” is arguably broader than a lawful nonimmigrant status. 

Like Samirah and El Badrawi, Mr. Bokhari also appears to have played by the rules, but he lost based on a strict and technical interpretation of the term “status.”  It would have been instructive to practitioners had the Bokhari court considered the exception for no-fault and technical reasons.  It also seems very unfair that Mr. Bokhari would trigger a 10-year bar and be ineligible for consular processing after an I-140 was approved for him.  Mr. Bokhari appears as a sacrificial lamb, after which practitioners can warn their clients and advise them to depart the U.S. to avoid the possibility of being barred in the future.  In any event, it appears that there will need to be additional litigation to further define whether a noncitizen is technically in status in the U.S.  If you have a case that raises these or related issues, please contact AILA’s Amicus Committee at  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.