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.

For years, practitioners in North and South Carolina have been the victims of a forced marriage with the Atlanta Immigration Court and the 11th Circuit Court of Appeals.  In late 2008, we finally got our own Immigration Court in Charlotte, NC.  Yesterday, the BIA issued its first precedent decision originating from the Charlotte Immigration Court.  And it was a big one…

Luis Felipe Garcia-Arreola is a long-time permanent resident with a drug conviction.  This conviction makes Mr. Garcia-Arreola deportable but eligible for 212(c) relief.  After getting arrested on a domestic assault (which was dismissed by the State of NC) and transferred to ICE custody, ICE sought mandatory detention pursuant to INA § 236(c) and Matter of Saysana.  

In a brave decision, Immigration Judge Teresa Holmes-Simmons distinguished Saysana with the facts of Mr. Garcia Arreola’s case and recognized that Saysana had been universally rejected by Federal District Courts.  DHS appealed and AILA Amicus Committee stepped in to provide amicus support.  During this time, the Saysana case itself was rejected by the First Circuit Court of Appeals.  DHS then changed its position and retreated.  Yesterday, the BIA overruled Saysana!

The good news:  the holding specifically states that mandatory detention applies where there has been a (a) release (b) from non-DHS custody (c) after October 8, 1998, (d) that is “directly tied” to the basis for detention under INA §§ 236(c)(1)(A)–(D). 

The bad news:  Primarily because it was unaddressed by the parties, the Board left standing another horrible mandatory detention decision – Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), a deeply-divided Board decision which concluded mandatory detention applies even if ICE fails to assume custody of an alien “when released.”  Our work is not done.  The AILA Amicus Committee believes returning to the plain language of the statute means not only overruling Matter of Saysana, but also Rojas.  Like Saysana, Rojas has led to a mountain of litigation and the inconsistent application of our mandatory detention statute nationwide. 

The Board’s “resort to contortions” in Rojas and Saysana has only resulted in creating more chaos in our immigration detention system and wasted hours and resources on needless litigation, all in an effort to prevent an Immigration Judge from exercising discretion in bond redetermination decisions.  See Rojas, 23 I&N Dec. at 130 (dissent).   Our committee celebrates the Board’s decision yesterday in Garcia-Arreola, but also looks forward to fully restoring the exercise of discretion in Immigration Court.

 –by guest writer Trina Realmuto at the National Immigration Project

Tired of filing a bond motion and preparing for a bond hearing only to find out that your client has been transferred before the hearing date and the IJ refuses to conduct the hearing due to the transfer?  Well, if you practice in the Carolinas, Kentucky, or another of the many jurisdictions where this routinely happens, you’re likely to be fed up. 

The practice of moving a detainee after a bond hearing is requested and scheduled but before it can take place impedes your ability as an attorney to represent your client.  It forces you to file subsequent bond motions in other immigration courts and travel to the location of the new hearing (or wait on the phone for hours for a telephonic bond hearing), and has a draconian impact on detainees, many of whom cannot afford to pay for additional filings and removal representation, post bond, and put food on the table.  And, significantly, detainees, including those who ultimately are granted bond, have spent additional days, weeks, and months simply waiting for a rescheduled bond hearing to take place.  Why?

Well, it all boils down to the interpretation of 8 C.F.R. § 1003.19(c), the regulation saying that a detainee’s bond hearing request shall be filed where the person is detained.  Advocates say that, as long as the request is filed with the immigration court having administrative control of the place of detention at the time the request is filed, the detainee has complied with this procedural regulation and the bond hearing should go forward even if the detainee has been transferred (provided, of course, that the detainee consents to waive his/her appearance at the hearing).  Interpreting the regulation in this way, advocates argue, would comport with the regulation’s language and purpose, facilitate prompt bond hearings, and improve access to counsel, including communication between attorneys and detainees.

On the other hand, DHS claims that the regulation is jurisdictional and that a bond hearing can never go forward without the person present in the assigned area of responsibility.  DHS does not argue that the detainee must be present at the bond hearing.  DHS, nor does DHS agree that a detainee can waive his or her own presence to allow the bond hearing to take place sooner.  Rather, DHS stoically asserts that a detainee must be physically located within the court’s assigned geographical area for any immigration court to exercise jurisdiction.

The Board of Immigration Appeals has an opportunity to set forth its interpretation of the regulation as, earlier this year, a North Carolina immigration judge asked the BIA to hear the issue on certification.  Briefing in the case was completed on May 27, 2010.  The National Immigration Project of the National Lawyers Guild, along with the Maxwell Street Legal Clinic and the Southern Coalition for Social Justice, filed an amici curiae brief in support of the respondent, who is represented by Jeremy McKinney. 

We hope that the BIA will rule favorably on this important issue.  In the meantime, readers with a case presenting this issue are encouraged to contact Trina Realmuto at the National Immigration Project (trina@nationalimmigrationproject.org) as the Project has a practice advisory, model brief, and sample bond hearing requests available on its website and is monitoring this issue.

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

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

–

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

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

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

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

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

–

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

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

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INA 208(a)(2) Exceptions. -

(A) Safe third country….

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

(C) Previous asylum applications…..

(D) Changed conditions….

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

–

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Challenges to Adequacy of the Record

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

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

by Kathy Moccio

Last summer a Minnesota Public Defender commented that the commonly held notion that immigration matters are collateral to the criminal cases of non-citizens “makes no sense at all. It’s part of their circumstances, just as much as if my client has chemical dependency issues. I have to be aware of that, and I need to give advice based upon what their circumstances are.”

On March 31, 2009 the Supreme Court agreed. In Padilla v. Kentucky, 559 U.S. ____(2010) the Court held that the Sixth Amendment right to counsel requires that non-citizen defendants receive competent immigration advice regarding the deportation risks of a plea. The Court’s recognition that deportation is inherently part of the punishment meted out to non-citizen defendants reflects the reality that immigration penalties are overly punitive. The decision paves the way for necessary changes to ensure the rights of the indigent, and others, are protected.

First, public defenders have notorious caseloads. In Minnesota budget cuts have resulted in attorneys handling double the ABA recommended caseload. Padilla clarifies the role of public defenders requiring them to focus on the immigration consequences that drive their clients’ decisions. While at initial blush this may seem a terrible burden to place on overworked attorneys, it actually frees public defenders to obtain immigration counsel to assist in the negotiation of more favorable plea agreements. This will likely alleviate the frustration and lingering doubt many attorneys struggle with when they negotiate a plea uncertain of its immigration consequences. Furthermore, working with competent immigration counsel enables public defenders to confidently argue for sentences that avoid devastating immigration consequences. The result is more effective and efficient representation which in turn benefits the criminal justice system.

Second, legislative fixes have to date inadequately protected defendants’ rights. State laws that require criminal law judges to warn defendants that a plea may carry immigration consequences amount to a warning to obtain competent immigration advice before entering a plea. Not all defendants are able to hire private immigration counsel. Padilla protects indigent immigrants who would otherwise be forced to plea without a full understanding of the immigration consequences. Furthermore, it protects immigrants who are located in jurisdictions that lack a vibrant immigration bar. This protection is particularly important for detained immigrants who are unable to travel to or call private immigration counsel.

The constitutional right to competent immigration counsel for non-citizen defendants provides needed protections against the deprivation of property, life, or all that makes life worth living. It’s not a radical idea. It’s not using the constitution to create a perfect world. It’s simply an important step towards justice.