Following a routine traffic stop, the Palm Beach Gardens Police Department detained several Latino passengers, including Mr. Jimenez-Domingo, for over an hour to await the arrival of Customs and Border Protection (CBP) officers, who later placed him into removal proceedings.  Arguing that he had been unconstitutionally detained in violation of the Fourth Amendment, Mr. Jimenez-Domingo — who is represented by Rebecca Sharpless and law student Ian Shaw at the University of Miami School of Law’s Immigration Clinic — sought to suppress subsequently obtained evidence that gave rise to the charges that he was unlawfully present in the United States.

Arguments to suppress evidence of alienage often hinge on whether noncitizens have been subject to an “egregious” violation of the Fourth Amendment.  This standard stems from the Supreme Court’s 1984 ruling in INS v. Lopez-Mendoza that evidence obtained by federal immigration officers in violation of the Fourth Amendment may generally not be suppressed in immigration proceedings unless the violation was “egregious.”  The Court at the time reasoned that the costs of suppressing unconstitutionally obtained evidence in immigration proceedings normally outweighed the benefits of deterring future unlawful conduct by federal immigration officers.  However, as the American Immigration Council argued in an amicus brief in Jimenez-Domingo, the changing face of immigration enforcement warrants a different cost-benefit analysis today.

In 1984 when Lopez-Mendoza was decided, over 97.5% of noncitizens charged with violating the immigration laws agreed to leave the United States voluntarily without a formal hearing.  Because so few hearings took place, the Supreme Court reasoned that arresting officers would not be deterred from using unlawful tactics to gather evidence by the prospect that such evidence might be suppressed.  Today, however, more than 220,000 removal hearings take place every year, and less than half the noncitizens charged with immigration law violations opt for voluntary departure.

The increasing involvement of local police in immigration enforcement is also noteworthy.  A critical factor that influenced the Court’s decision in Lopez-Mendoza was the existence of a “comprehensive scheme” for deterring federal immigration officers from committing Fourth Amendment violations.  Most local police officers, however, do not receive federal immigration training, and they are not subject to federal regulations that limit the stop-and-arrest authority of federal immigration officers.  Moreover, such officers are accustomed to operating in the realm of criminal law, where evidence obtained in violation of the Fourth Amendment is frequently suppressed.  This practice is specifically intended to deter unlawful police conduct.

With respect to societal costs, the Supreme Court’s primary concern in Lopez-Mendoza was that allowing the suppression of unconstitutionally obtained evidence in immigration proceedings would require the courts to close their eyes to ongoing criminal offenses.  However, the Court clarified in Arizona v. United States that unlawful presence alone is not a continuing criminal act and acknowledged that allowing the continued presence of removable noncitizens may, under certain circumstances, be consistent with federal immigration policy.

In short, the immigration enforcement arena has changed significantly since the Supreme Court decided Lopez-Mendoza.  A similar change in the relevant legal framework is long overdue.

Matthew Price co-authored this blog.

The Western District of Washington, like many other district courts, has repeatedly rejected the Board’s decision in Rojas, refusing to defer to the Board’s interpretation because the statute does not leave any ambiguity for the agency to interpret. See, e.g., Quezada-Bucio v. Ridge, 317 F. Supp. 2d 1221 (W.D. Wash. 2004); Pastor-Camarena v. Smith, 977 F. Supp. 1415 (W.D. Wash. 1997). For several years after the court’s decisions, local DHS had acquiesced and permitted bond hearings for “when released” cases arising in the Northwest Detention Center in Tacoma, which falls under the jurisdiction of the Western District of Washington.

Recently, however, the DHS has changed its policy and is asserting mandatory detention in all “when released” cases. As a result, the district court has recently revisited the issue in Castillo v. ICE Field Office Director, __ F. Supp. 2d __, 2012 WL 5511716 (W.D. Wash. Nov. 14, 2012).

Petitioner Elton Castillo was removed to Belize in 2003 and subsequently reentered the United States. He was subsequently detained by the DHS and issued a notice that the DHS intended to reinstate his prior removal order. However, an asylum officer later found that Mr. Castillo had a reasonable fear of persecution and torture, and referred the matter to an immigration judge. Mr. Castillo filed a pro se petition for writ of habeas corpus in April 2012 seeking a bond hearing or release on an order of supervision.

On November 14, 2012, District Judge Marsha J. Pechman reaffirmed the Western District’s prior decisions on this issue, holding that “the language of the statute is not ambiguous.” The court continued:

Analyzing the precise language at issue here, multiple judges in this district have concluded that the clear language of the statute indicates that the mandatory detention of aliens “when” they are released requires that they be detained at the time of release.

Castillo, __ F. Supp. 2d __, 2012 WL 5511716 at *4. The Court ordered the DHS to provide Mr. Castillo with a bond hearing within 30 days.

Of particular note to practitioners is the district court’s thoughtful analysis of the Fourth Circuit’s contrary decision in Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012). In Hosh, the Fourth Circuit deferred to the Board’s interpretation of the mandatory detention scheme. The Castillo court found that the Government’s argument to adopt the reasoning of Hosh was “unpersuasive,” because Hosh had relied on cases “involving internal requirements of customs laws and the Bail Report Act of 1984 . . . .” The court declined to adopt Hosh because “this case is about providing due process to an individual, not taking away a benefit accorded by the government.”

The Government in Castillo also argued that detention was authorized under I.N.A. § 241 because Mr. Castillo had a reinstated order of removal. The court found that this argument “defies both logic and the clear text of the statute” because the reinstated removal order is “non-final” given the pending proceedings regarding Mr. Castillo’s withholding and CAT applications. The court noted that 8 C.F.R. § 241.8(e) provides that the “custody of aliens awaiting withholding of removal proceedings is explicitly not governed by § 241.”

Unfortunately, notwithstanding the district court’s decision in Castillo, the DHS continues to assert mandatory detention in all “when released” cases arising in the Western District. If you have cases raising this fact pattern, consider filing a habeas corpus petition. If you do not do habeas cases yourself, consider referring your client to another attorney who can help. And remember, given the repeated decisions rejecting the government’s position, it may be possible to obtain EAJA fees for favorable outcomes in these cases.

This month, the Supreme Court heard arguments in Chaidez v. U.S., a case which will determine whether Padilla v. Kentucky applies retroactively. In Padilla, the Court held that criminal defense attorneys’ failure to advise clients that pleading guilty may make them removable constitutes ineffective assistance of counsel under the Sixth Amendment. The Court’s decision in Chaidez will have serious effects on the lives of noncitizens and their families. As AILA’s amicus brief in the case explained, unless Padilla applies to those whose criminal cases pre-dated the decision, some longtime U.S. residents, and their U.S. citizen children, will face immigration consequences that far outweigh the severity of their crimes.

The petitioner in the case, Roselva Chaidez (who is represented by the Stanford Law School Supreme Court Litigation Clinic, the National Immigrant Justice Center and several private attorneys), had been a lawful permanent resident for more than 25 years when she pled guilty in federal court to an aggravated felony. Her attorney failed to notify her that her conviction would render her removable. Five years later, when Ms. Chaidez applied for citizenship, she admitted to her criminal record in an interview. As a result, the government initiated removal proceedings against her. Ms. Chaidez then sought to vacate her conviction, and while her claim was pending, the Supreme Court decided Padilla. The district court applied Padilla retroactively to Ms. Chaidez’s case, but on appeal, the Seventh Circuit reversed. She then sought Supreme Court review of that decision.

The arguments before the Supreme Court delved into the boundaries of ineffective assistance of counsel case law in the criminal context and the retroactivity of new rules of criminal procedure. More broadly, the arguments indicated that the Court is grappling with whether they view providing advice about the immigration consequences of a conviction as similar to or wholly unique from the rest of a criminal defense attorney’s duties.

In determining whether Ms. Chaidez’s claims would be successful, the Court looked to its 1989 decision Teague v. Lane. Teague holds that new rules of criminal procedure do not apply retroactively in collateral review of criminal convictions (often, brought through a habeas corpus petition or writ of coram nobis). However, if the Court is only applying existing rules to a new set of facts, the decision may apply retroactively. Ms. Chaidez argued that Padilla simply applied the existing standards for ineffective assistance of counsel in criminal cases, set forth in Strickland v. Washington. The United States responded that Padilla created a new rule – that the Sixth Amendment could require criminal defense attorneys to provide advice about matters outside the control of criminal courts.

Much of the questioning at the Court illustrated the parties’ divergent views on whether Strickland commanded the result in Padilla or whether, given the number of lower courts that had reached the opposite conclusion prior to Padilla, it was a new rule. Several Justices, including Justice Kennedy, pressed Ms. Chaidez’s attorney to explain why Padilla’s unique expansion of ineffective assistance doctrine was not a “new” rule and whether he could envision any expansion of ineffective assistance of counsel rules that would be new under his analysis. Later in the argument, the Justices, especially Sotomayor and Breyer, pushed the attorney for the United States to address the importance of professional standards in place prior to Padilla that had required criminal defense attorneys to inform their clients of immigration consequences of convictions. Throughout, there was a fundamental disagreement about the extent to which information about the immigration consequences of a conviction are intertwined with other advice that defense attorneys provide in the course of plea bargaining.

Ms. Chaidez also offered an alternative argument: that the Teague retroactivity framework is not applicable because, unlike the Petitioner in Teague, she is pursuing her first collateral challenge to a federal, not state, conviction. She argued that because Supreme Court case law directs federal defendants to pursue ineffective assistance of counsel claims on collateral review (as opposed to direct review), it does not follow that they should benefit from “new rules” only if they did the opposite and made their challenge on direct review. While Justices Breyer, Sotomayor, and Ginsburg picked up on some of Ms. Chaidez’s arguments against the applicability of Teague, Justices Kagan and Alito focused on the uncertainty that the criminal court system would experience if the finality of its convictions could be challenged under a non-Teague system – almost a direct counterpoint to the AILA amicus brief argument that, without retroactivity, noncitizens with convictions impacted by ineffective assistance of counsel may face a lifetime fearing imminent deportation.

Though the argument dealt with legal issues and precedents that rarely arise directly in immigration law practice, the underlying issues in the case are painfully familiar to most immigration practitioners. Ms. Chaidez’s case is one in a long line of cases exploring the growing and troubling intersection between the criminal justice and immigration systems. As Congress vastly expanded the immigration consequences of criminal convictions over the last two decades, those consequences became an important component of advice any competent defense attorney must discuss with her client before that client accepts a plea bargain. To suggest that recognition of this reality is fundamentally different from previous rulings about ineffective assistance of counsel would minimize the enormous impact of the criminal-immigration system on many who call the United States home.

On September 26, the Ninth Circuit Court of Appeals held in De Osorio v. Mayorkas that children who are under the age of 21 when they are listed as a “derivative” on a permanent residence application should be able to retain their space in line even if they turn 21 before the immigrant visa is issued.

The implications of De Osorio are significant, as it enables adult children to receive a permanent resident card in a more predictable and shorter timeframe than would be the case if they were required to begin the immigrant visa process anew upon turning age 21.

The issue in De Osorio is whether children who are named on visa petitions filed on behalf of their parents should remain eligible to apply for a visa after “aging out,” or turning 21, before the visa becomes available. The family immigration system is a complex design of Congress that is capped at 480,000 visas annually. Those deemed “immediate relatives” (spouses, children, parents of United States citizens) are not subject to this or any other quota. But the four other family categories (unmarried adult children of United States citizens, spouses and children under the age of 21 of green card holders, etc.) are subject to specific quotas within the 480,000 limit. When a petition is filed by a sponsor for a qualifying relative, the filing date is labeled as a “priority date”, which becomes the benchmark that is used by the agency to measure the wait time for a particular petition to reach the front of the quota line. The quotas created by Congress, coupled with the processing delays by the agency, create a paradigm where children listed as “derivatives” on their parents’ family-based visa petitions can turn 21 before their priority date becomes “current” and thus a visa is available. When children reach the age of 21, they no longer qualify as dependents of their parents on an immigrant visa petition. Adult-age children require an independent visa petition to immigrate to the United States.

The Ninth Circuit illustrated the problem as follows:

For, example, U.S. citizen Adele files a [visa] petition on behalf of her adult son Aron, and includes Aron’s daughter Naira as a derivative beneficiary. By the time Aron receives a visa, Naira is over twenty-one. Adele can no longer petition on Naira’s behalf, as there is no qualifying relation- ship between a grandmother and her adult granddaughter. Once Aron becomes an LPR, Aron may file a [new visa] petition [in a different visa category] for his daughter Naira.

Similarly, U.S. citizen Adele files a [visa] petition for her sister Kristen, and includes Kristen’s daughter Sandy as a derivative beneficiary. If Sandy is over twenty-one when Kristen receives her visa, Adele cannot petition for Sandy, because Adele cannot petition for her adult niece. Kristen may file a [new visa] petition [in a different visa category] for her daughter Sandy.

The question here is whether the original [visa] petition[s] should be automatically converted to [the new visa petitions], and if the [new visa] petition[s] retain the priority date of the [original] petitions.

To remedy the problem of children “aging out” of visa petitions filed by family members on behalf of their parents, Congress enacted the Child Status Protection Act (CSPA) in 2001. Among other things, the CSPA enables certain noncitizens who were children when they were listed as “derivatives” on their parents’ visa petitions to retain a priority date even after turning 21 before the visa becomes available. Specifically, the CSPA states:

Retention of priority date. If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition. 8 U.S.C. 1153(h)(3).

Despite the plain language of the CSPA, the Board of Immigration Appeals had previously held in Matter of Wang that the CSPA does not apply to a now-adult noncitizen who was previously listed as a derivative on a visa petition filed on behalf of the child’s parent. Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009) Following Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), the Ninth Circuit rejected the Board’s analysis, concluding that the plain language of the CSPA unambiguously enables now-adult derivative beneficiaries of a visa petition to retain their priority date when a new visa petition is filed for them.

The implications of De Osorio are not merely theoretical. Under the Matter of Wang paradigm, parents were forced to leave their children behind or live with vulnerability in the United States because of the quota or processing delay. These children include DREAMers, entrepreneurs and those who have invested or wish to invest in the American Dream. The decision also benefits the agency, by freeing up the precious resources used by the agency to arrest and remove adult-children who “aged out” because of the troubled standard outlined in Matter of Wang (individuals who arguably, should have never been targeted as a matter of prosecutorial discretion).

The AILA amicus committee hails the court’s recognition about the limits of Chevron deference and safeguarding of individuals who have waited for years to emigrate under the family immigration system. Amicus briefs were filed by multiple entities, including the American Immigration Lawyers Association; Catholic Legal Immigration Network, Inc.; American Immigration Council; National Immigrant Justice Center; and Active Dreams, LLC.
See more AILA resources on CSPA.

On March 1, the Third Circuit published Vera v. Attorney, a case that centered on a young girl from Argentina who presumably entered the United States under the visa waiver program (VWP) and was thereafter arrested, detained and summarily ordered removed without due process. ; See also, Musings on the Visa Waiver Program, No-Right Waivers and the Age of Youth. The VWP is a program that enables millions of citizens of select countries to enter the United States as a nonimmigrant for a period of 90 days without having to first obtain a visa. The immigration statute provides that VWP holders should waive any right to review or appeal an immigration officer’s about admissibility at the port of entry or to contest, other than on the basis of an application for asylum, any action for removal. See, INA 217. While the government was unable to provide the official document containing a signature from Vera or her parents that she/they had in fact waiver her rights as a condition of her entry under the VWP, the Third Circuit nevertheless concluded that a waiver could be presumed. Without making a decision about whether Vera even signed a waiver or if she did if her waiver was “knowing or voluntary” the Court found it irrelevant under a theory that Vera’s legal position after admission under the VWP and before admission (had she refused to sign the waiver) were exactly the same—therefore, the court found that Vera suffered no prejudice. The Court also provided some damning language about the forcible lengths that ICE should have gone through to make sure Vera was placed into the plane for removal and the apparent dangers of providing safeguards to minors who enter under the VWP. To illustrate, one footnote in the Third Circuit’s decision noted “[I]t seems obvious that the borders of this country should not be opened to minor aliens literally to walk in on the basis that they are temporary visitors but who then can refuse to leave and demand procedures to determine if they can be removed.” Vera remained in immigration detention for nine months.

Later in March, Vera secured pro bono counsel to represent her in a petition for rehearing en banc before the Third Circuit. In April, Vera successfully fought with her team of attorneys and the New York State Youth Leadership Council to be released from immigration detention. In May, the Office for Immigration Litigation (OIL) (federal court lawyers who represent DHS), filed a motion to throw out Vera’s immigration case because it had discovered that she had not actually entered the United States under the VWP but rather had been admitted as a visitor and therefore was entitled to a full removal hearing before an immigration judge. Specifically, OIL asked the Third Circuit to cancel Vera’s removal order and withdraw its decision.

Jordana Vera was eventually granted a favorable exercise of prosecutorial discretion, which in immigration law refers to the agency’s decision to refrain from exercising the full scope of immigration laws against a particular person or group of persons. See also, http://immigrationpolicy.org/special-reports/morton-memo-and-prosecutorial-discretion-overview. As a DREAM Act eligible student with no criminal history and several ties to the United States, the agency’s decisions to grant prosecutorial discretion is unsurprising. The real surprise lies in the huge error DHS made in prosecuting Vera in the first place, the absolute deference given by the Third Circuit to the DHS despite any evidence in the record to support the government’s claims, and the lengths that Vera went through before the government granted deferred action. See generally, http://www.immigrantjustice.org/press_releases/JordanaVeraDeferredAction

Vera’s case reveals a gross miscarriage of justice by DHS, and the degree to which judicial deference to the agency can interfere with the rule of law. The lack of accountability or interest by the DHS or the Court to weigh any real evidence and achieve a just result is deeply unsettling. Moreover, the case raises serious concerns about the contours of the visa waiver program or any program that favors summary removal over procedural due process. Finally, Vera presents a grand irony in the government’s well-advertised efforts to implement a strong policy of prosecutorial discretion as early in the enforcement process as possible so that individuals who represent “low priorities” to the government are placed on the backburner in order to preserve the government’s precious resources and protect those individual who present strong humanitarian factors. The resources spent by DHS to erroneously prosecute, detain, and nearly deport Vera are unconscionable.

When I was 12 years old, my favorite school project was to put together a “Future Book” detailing my adult life through cutout pictures from magazines and other places and captions written in my jumbo-size middle school cursive. My Future Book featured a movie-star husband from “Bollywood”; triplet girls, each with blond hair and medium sized white dogs; and a cover page decorated with a grand piano to showcase my future career as concert pianist. I knew little of the terms “rule of law”, “due process” or “waiver” three phrases that would feature prominently in my real adult life. This was the sixth grade story I remembered as I read the Third Circuit’s decision in Vera v. Attorney General of the United States

Jordana Vera is a citizen of Argentina who entered the U.S. at the age of 12 under the “Visa Waiver Program” (VWP). The VWP is a program that is designed to allow citizens of select countries to enter the United States as a nonimmigrant for a period of 90 days without having to first obtain a visa. The immigration statute provides that VWP holders should waive any right to review or appeal an immigration officer’s about admissibility at the port of entry or to contest, other than on the basis of an application for asylum, any action for removal. INA 217. Vera remained in the United States longer than the authorized period of stay under the VWP and years later, was arrested, detained and ordered removed by ICE without an administrative or judicial hearing. The government was unable to produce the form (I-94W Nonimmigrant Visa Waiver Arrival/Deportation) containing Vera’s signed waiver of rights. Vera filed a petition for review, arguing that her removal order was invalid because she was a minor when she entered the U.S. and because the government failed to produce a signed I-94W.

The Vera court held that the government is entitled to a “rebuttable presumption” (which had not been rebutted) that Vera executed a waiver, even though Vera was 12 when she entered the United States and even though the government failed to produce a form saying she signed a waiver. The Vera court found that even if Vera did not sign the waiver or if she signed a waiver that was invalid because of age, there was still no claim because she suffered no prejudice, concluding, “she would be in precisely the position she is in now- facing summary removal.” The opinion did not include facts about whether Vera was entitled to formal relief from removal or an exercise of prosecutorial discretion based on various positive equities. The Vera court cited liberally to another Third Circuit case called Bradley v. Attorney General. In that case, the Petitioner Bradley, challenged that his removal order was invalid because he was intoxicated when he entered into the United States under the VWP and therefore the waiver of his rights was not “knowing and voluntary.” Leaving aside whether his waiver was “knowing and voluntary,” the Bradley court rejected his challenge, holding that even if knew about the contents of the waiver and refused to sign, he would be in the same position as he is now-subject to summary removal without a hearing, and therefore suffered no prejudice. AILA Amicus Committee Member Stephen Manning has blogged previously about Bradley and the stance among several federal circuits on the legal challenges around the INA’s requirement that VWP entrants waive their rights to a formal removal hearing or to even to contest their removal.

The Vera court makes some additional comments that are somewhat harsh and potentially damaging to future claims involving noncitizens who enter the United States as minors under the VWP. For example, the court offers in a footnote “Although Vera was a minor when she entered the United States she was not such tender years that she could not possibly have executed the waiver.” Really? I re-read this passage many times, stunned by the expectation behind these words in contrast to the limits of my own sixth grade worries. Though the court did not have to determine if Vera’s waiver was “knowing and voluntary” because of her age, it included strong language against any theory that minors cannot sign a waiver knowingly: “…[T]he consequence of a decision that a minor cannot execute a valid waiver or the summary removal provisions of the VWP cannot be enforced against a minor could force the government to adopt a policy not to allow minors to enter this country pursuant to the VWP. After all, it seems obvious that the borders of this country should not be opened to minor aliens literally to walk in on the basis that they are temporary visitors but who then can refuse to leave and demand procedures to determine if they can be removed.” I hope this portion of the Vera decision is treated as nothing more than dicta and eventually retracted.

If you have a case that involves litigating a visa waiver issue at the circuit courts, please contact AILA Amicus at amicus@aila.org.

On January 31, the Board of Immigration Appeals (Board) published an important decision on “administrative closure” decisions.

The American Immigration Lawyers Association (AILA) has long supported the principles echoed in Matter of Avetisyan and notably, advanced many of these themes in a related amicus brief last June.

Matter of Avetisyan involved a native and citizen of Armenia who entered the United States as a J-1 visa holder and thereafter was placed in removal proceedings based on her failure to maintain the conditions of her visa status. At one of her hearings before the Immigration Judge, the respondent informed him that she was recently married to someone who was in the process of naturalizing and that the couple had recently had a child together. Several hearings later and at the final hearing, the respondent asked that her removal proceedings be “administratively closed” so that her marriage-based visa petition could be adjudicated by the United States and Citizenship and Immigration Services (USCIS). The Immigration Judge administratively closed proceedings over the DHS counsel’s objection. The Board agreed that the Immigration Judge had the authority to administrative close proceedings and also found that the Immigration Judge’s decision to close proceedings was properly exercised.

Notably, the Board offered the following new legal standard for determining whether administrative closure is appropriate in a removal case: “[A]n Immigration Judge or the Board should weigh all relevant factors, including but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.” The Board also reclaimed the province of the EOIR by concluding that the Immigration Court and the Board may administratively close cases even when a party opposes, overruling its own decision from more than 15 years ago. Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996).

Three important lessons from Matter of Avetisyan are described below.

Matter of Avetisyan upholds the principle decisional independence. In 1952, Congress enacted the Immigration ant Nationality Act and designated the task of hearing to deportation cases to “Immigration Judges” within the Immigration and Naturalization Service (INS). It was not until 1983 when the Attorney General removed Immigration Judges from the INS and placed them into a newly created Executive Office for Immigration Review. The creation of EOIR was significant because it acknowledged the importance of decisional independence to the integrity of removal process. The principle of independence has been since articulated in the regulations and was highlighted by the Board in Matter of Avetisyan throughout its opinion and also when it remarked “In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Matter of Avetisyan identifies the limitations of prosecutorial discretion. “Prosecutorial discretion” refers to the agency’s decision about whether or not to enforce the full scope of immigration laws against a particular person or group of persons. Prosecutorial discretion is a powerful tool that may be employed by DHS at any stage of the enforcement process. However, once the NTA (immigration charges) have been filed with the EOIR and removal proceedings have commenced, jurisdiction shifts from the DHS to the EOIR and as a practical matter, modifies and in some cases shrinks the number of prosecutorial tools available to the DHS. The Board in Matter of Avetisyan carefully distinguished the DHS’ prosecutorial discretion authority from the Immigration Judge’s authority to regulate removal proceedings and manage the Court’s calendar, concluding that DHS opposition alone is insufficient to bar an Immigration Judge’s decision to administrative close removal proceedings. In the last year, the DHS has showcased the role of prosecutorial discretion in immigration matters and instructed that ICE officers consider administrative closure in “low priority” cases that present strong equities. Matter of Avetisyan serves as an important reminder that while DHS’ decision to join or initiate a motion to administrative close removal proceedings is an exercise of prosecutorial discretion, the ultimate decision about administrative closure lies within EOIR and must be made in accordance with the law.

Matter of Avetisyan offers an articulable legal standard for future administrative closure decisions. Administrative closure has been long used by the immigration agency, but lacks a definition or standard in the statute or the regulations. The Board’s new standard on administrative closure is consistent with its decisions on motions to reopen and requests for continuances.

Note: The AILA Amicus Committee is interested in hearing about cases where Immigration Judges are administratively closing removal proceedings in “low priority” cases with strong claims for relief. We believe that closure in such cases is improper and inconsistent with the standard identified in Matter of Avetisyan. Please email us at: amicus@aila.org

Written by: Shoba Sivaprasad Wadhia

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

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

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

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

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

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

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

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

Please direct comments to amicus@aila.org

Delgado, 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.

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!