BIA Interprets the Stop-Time Rule for Cancellation of Removal

In a precedent decision, the Board of Immigration Appeals determined that the service of a Notice to Appear on a non-citizen does not stop his accumulation of continuous physical presence for the purpose of applying for cancellation of removal for non-lawful permanent residents if the Notice to Appear is never filed with an immigration court.  Marcos Victor Ordaz-Gonzalez was originally served with a Notice to Appear in 1998, but the Notice to Appear was never filed with an immigration court, and thus, removal proceedings never commenced against Mr. Ordaz.  In 2004, the Department of Homeland Security (DHS) served Mr. Ordaz with a second Notice to Appear, and when Mr. Ordaz sought cancellation of removal in court, the Immigration Judge denied his application, finding that service of the 1998 Notice to Appear ended his accumulation of the requisite ten years of continuous physical presence.  

The Board of Immigration Appeals disagreed, noting that "[a]ffording 'stop-time' effect to 'any' notice to appear, regardless of whether proceedings were ever commenced on that basis, would potentially render an alien ineligible for relief on the basis of a charging document that was invalid or otherwise insufficient to support a removal charge as issued.  And if proceedings were never commenced, the alien would not have the opportunity to contest, or require the DHS to prove, the allegations and charges contained in the notice to appear. In fact, if we were to adopt the DHS’s approach, even in situations where an alien was provided such an opportunity, a notice to appear that he or she has successfully defended against would nevertheless have “stop-time” effect in later proceedings.  We are not persuaded that Congress intended such far-reaching consequences."

The full text of Matter of Ordaz can be found here: http://www.justice.gov/eoir/file/639876/download 

Fifth Circuit Affirms that Asylum is not Available to a Person Whose Removal Order has been Reinstated

In a published decision, the Fifth Circuit affirmed the Board of Immigration Appeals' determination that a person whose removal order has been reinstated is eligible to apply only for withholding of removal and protection under the Convention Against Torture.  Even though the petitioner had been paroled back into the United States after her reinstated order was executed, she was still subject to the limitations on relief described in section 241(a)(5) of the INA, and could not apply for asylum.

The full text of Ramirez-Mejia v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-60546-CV0.pdf

Ninth Circuit Issues Interesting Case on the Retroactivity of IIRIRA

In 1996, Congress passed a set of sweeping changes to the immigrations laws, collectively known as IIRIRA.  These changes imposed immigration consequences for many actions (including certain criminal convictions) that did not previously exist.  The Supreme Court has ruled that individuals who lawful permanent residence and subsequently committed a crime before the passage of IIRIRA would not be subject to the retroactive applications of these provisions.  The Ninth Circuit, in an unpublished decision, held that the laws would not apply retroactively even if the criminal conviction pre-dated the acquisition of residency (and thus, may have called into question whether the person was ever entitled to residency in the first place).

The decision has very broad language: "Of course, in the cases just cited, the alien had become an LPR before he committed a crime, whereas Serrano committed the crime in question before he became an LPR. But that is a distinction without a difference. We have held that where an alien had committed a crime but applied for immigration relief before IIRIRA became effective, application of IIRIRA’s provisions to the alien would be impermissibly retroactive.  If the mere filing for a form of immigration relief precludes retroactive application of IIRIRA’s changes, it follows as the night the day that actually obtaining LPR status before IIRIRA’s effective date precludes retroactive application."

The language could be potentially useful for lawyers arguing against the retroactive application of almost any of IIRIRA's provisions, even those that do not involve criminal convictions.

The full text of Serrano v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/07/22/12-70568.pdf

First Circuit Reverses Agency's Adverse Credibility Determination

Henry Mboowa applied for asylum from Uganda based on harm that he and his family experienced due to his involvement in a political youth movement that supported an opposition candidate for president.  The Immigration Judge and the Board of Immigration Appeals rejected Mboowa's application, finding his testimony was not credible.  In particular, the agency focused on several incidents of persecution that Mboowa testified about in court, but did not include in the supplemental statement attached to his asylum application.  However, as the First Circuit noted, these incidents were referenced in the asylum application itself, and thus, were not omitted from the written materials.  

"In concluding that these allegations were absent from Mboowa's initial application, the agency appears to have placed talismanic weight on Mboowa's supplemental statement to the exclusion of the I-589 Form that statement accompanied. But the agency supplied no rationale justifying its focus on the supplemental statement, leaving us with a firm sense that the I-589 Form itself was overlooked."

The First Circuit remanded the case to the Board of Immigration Appeals for further consideration of Mboowa's application for asylum.

The full text of Mboowa v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1367P-01A.pdf

Eighth Circuit Denies Bosnian Asylum Claim

The Eighth Circuit rejected an appeal from a Bosnian national seeking asylum, who had been beaten several times by Croatian police, and whose daughter had been harassed at school.  The court also rejected the petitioner's argument that the Court improperly relied on the testimony of an expert witness whose name was not submitted on a witness list 15 days in advance of a hearing and his assertion that the use of an asylum officer's "assessment to refer" violated his due process rights.

The full text of Nanic v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/07/133246P.pdf

Third Circuit Addresses 212(h) Waivers for Conditional Permanent Residents Convicted of Aggravated Felonies

On appeal from a published Board of Immigration Appeals (BIA) case (Matter of Paek), the Third Circuit addressed the applicability of the aggravated felony bar in section 212(h) of the INA to non-citizens admitted to the United States as conditional permanent residents.  The Third Circuit deferred to the BIA and found that the aggravated felony bar applies with equal force to those admitted as conditional residents as it to those admitted as non-conditional permanent residents.

The full text of Paek v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/143982p.pdf

The BIA's decision in Matter of Paek can be found here: http://www.justice.gov/sites/default/files/eoir/legacy/2014/09/17/3813.pdf

Seventh Circuit Affirms Denial of Continuance and I-751

Parashu Giri married a U.S. citizen and obtained conditional permanent residence through his marriage.  Though he and his wife filed a joint petition to remove the conditions on his residence, they failed to appear for their interview.  His U.S.-citizen wife, Tammy, eventually sent a letter to U.S. Citizenship and Immigration Services (USCIS) withdrawing her support for the joint petition.  Nevertheless, four years later, the couple filed another joint petition to remove the conditions.  USCIS denied the petition, finding that Parashu maintained a relationship with his first wife after their divorce and had a child with her during his marriage to Tammy.  Thus, USCIS concluded that Parashu had entered into the marriage with Tammy solely for the purpose of evading the immigration laws.  Parashu was referred to Immigration Court for removal proceedings.

On the date of his merits hearing, his attorney requested a continuance because Parashu had not been fingerprinted and because she 800 pages of documents demonstrating the bona fides of Parashu's marriage to Tammy that she had been unable to timely file because she had only received them the day before.  The Immigration Judge (IJ) denied the motion for a continuance, finding that Parashu had had 2 years to prepare his application, and ordered him removed.  The Board of Immigration Appeals (BIA) affirmed the IJ's determination on appeal.

On appeal to the Seventh Circuit, the court found that the denial of Parashu's request for a continuance was permissible.  "The IJ denied the continuance because Parashu had over a year and a half to prepare for the merits hearing, which Parashu requested accelerated; he had been warned of the deadlines for filing his application and completing fingerprinting and failed to comply; he did not give a reason for his lack of compliance; and he did not request a continuance in advance of the merits hearing. This explanation is rational and neither inexplicably departs from established policies nor rests on an impermissible basis."  Though Parashu tried to argue to the Seventh Circuit that his continuance request was justified because his abusive wife was denying him access to needed documents, he did not make this argument before the IJ.

The Seventh Circuit also found that the IJ's determination of removability was proper because Parashu admitted the factual allegations necessary to sustain the charge of removabiilty.  

The full text of Giri v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-17/C:13-3767:J:Williams:aut:T:fnOp:N:1589570:S:0 

First Circuit Retains Jurisdiction and Orders BIA to Supplement its Findings

Joel Magnuriu applied for adjustment of status during immigration proceedings based on an approved I-360 petition classifying him as the abused spouse of a US citizen.  The Immigration Judge denied his application on discretionary grounds.  While on appeal, USCIS issued a notice of intent to revoke Manguriu's I-360, and because he did not respond to the notice, USCIS revoked the I-360.  When the case reached the First Circuit, the Government argued that the case was moot, since even with a remand, Manguriu had not relief available to him after the I-360 petition was revoked.  Manguriu argued the revocation was invalid because USCIS sent the notice of intent to revoke to the wrong address.  The notice was not in the administrative record, and the First Circuit determined that the Board of Immigration Appeals needed to supplement its findings on the issue of the revocation of the I-360 before it could decide whether a remand was warranted or would be fruitless.  

The full text of Manguriu v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1279P-01A.pdf

Seventh Circuit Addresses a Persistent Litigant

The decision in Joseph v. Lynch does not contain any particularly enlightening legal principles (except to confirm that the 7th Circuit will not exercise jurisdiction to review motions to reopen filed on purely discretionary grounds), but if you'd like to read the saga a man who has filed 8 motions to reopen, I recommend the case.  Mr. Joseph did not receive the relief he was seeking, but he shown an unusual level of persistence, and perhaps will try again.

The text of the decision can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D07-14/C:14-2935:J:Hamilton:aut:T:fnOp:N:1587192:S:0

BIA Addresses Visa Petitions for Adopted Children

Typically, a child adopted by a U.S. citizen seeking to be classified as the immediate relative of that citizen for the purpose of procuring an immigrant visa must be legally adopted before the age of 16.  In a decision issued last week, the Board of Immigration Appeals determined that it would give effect to adoption decrees entered after a child's 16th birthday, but retroactively dated to a time prior the child's birthday, so long as state law permitted such a retroactive decree and the initial adoption petition was filed in the appropriate state court before the child's 16th birthday.

The full text of  Matter of Huang can be found here: http://www.justice.gov/eoir/file/627476/download

Second Circuit Invalidates Old Derivative Citizenship Law on Constitutional Grounds

The Immigration and Nationality Act of 1952 provided different rules for when a U.S.-citizen father could transmit citizenship to his child born out of wedlock than for when a U.S.-citizen mother could transmit citizenship to her child born out of wedlock.  The rules for paternal transmission were far more stringent.  In the context of an equal protection claim being evaluated under intermediate scrutiny, the Government proffered two interests (ensuring a sufficient connection between citizen children and the United States and avoiding statelessness), but the Second Circuit found that the statute was not substantially related to these or any other actual and important government interests.  The court then severed the more onerous provision applied to fathers and deemed that the less stringent requirement for mothers would apply to both parents.

The Second Circuit's decision now creates a split with the Ninth Circuit, who affirmed the constitutionality of statute's differential treatment of parental transmission of citizenship.

The full text of Morales-Santana v. Lynch can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/485dec25-f79a-4061-94c0-6aaecad5562c/1/doc/11-1252_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/485dec25-f79a-4061-94c0-6aaecad5562c/1/hilite/

Tenth Circuit Issues a Decision Addressing Proper Venue for a Petition for Review

Lee was detained by Immigration and Customs Enforcement in Louisiana (part of the Tenth Circuit), but his case was heard via televideo equipment by an Immigration Judge in Dallas, Texas (part of the Fifth Circuit).  Lee was physically transported to Dallas for his final hearing.  When his case was denied by both Immigration Judge and the Board of Immigration Appeals, Lee filed a Petition for Review with the Fifth Circuit.  The Fifth Circuit summarily transferred the Petition for Review to the Tenth Circuit, who in today's decision, transferred it back, finding that the proper venue in a detention case is the jurisdiction in which the Immigration Judge sits, rather than the jurisdiction in which the detention center resides.

The full text of Lee v. Holder can be found here: http://www.ca10.uscourts.gov/opinions/14/14-9573.pdf

Supreme Court Invalidates the ACCA Residual Clause; Disavows the "Ordinary Case" Test

The Supreme Court invalidated the residual clause of the Armed Career Criminal Act, finding it unconstitutional vague.  The Court also disavowed the "ordinary case" test employed by the circuit courts to determine if a conviction qualified as a "violent felony" under the residual clause.  This decision has important implications for immigration decisions finding convictions to be crimes of violence under 18 USC 16(b).  The text of 16(b) and the text of the residual clause are very similar, and circuit courts have often relied on a violent felony determination under the residual clause to determine that a conviction is also a crime of violence under 16(b).  Arguably, those cases must be revisited now.  

In addition, in a published case (Matter of Francisco Alonzo) issued earlier this year, the Board of Immigration Appeals stated that the ordinary case test should be employed to determine if a conviction qualifies as a crime of violence under 16(b).  Given the Supreme Court's skeptical assessment of that test in today's decision, the ordinary case test is probably no longer good law.

The full text of Johnson v. United States can be found here: http://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf

My blog post about Matter of Francisco Alonzo can be found here: http://www.sabrinadamast.com/journal/2015/6/4/board-addresses-proper-standard-for-evaluating-whether-a-conviction-qualifies-as-a-crime-of-violence

BIA Upholds Suspension of Attorney who had his Legal Assistant Impersonate him During Telephonic Hearings

In a published decision, the Board of Immigration Appeals upheld the suspension of an attorney who repeatedly had his legal assistant impersonate him during telephonic hearings.  The Board agreed that the attorney had assisted in the unauthorized practice of law, and upheld a 16 month suspension from practice before the immigration agencies and a 7 year ban on telephonic appearances.

The full text of Matter of P. Singh, Attorney can be found here: http://www.justice.gov/eoir/file/623226/download

Tenth Circuit Unpublished Decision Addresses Oklahoma Conviction for Maintaining a Dwelling where a Controlled Dangerous Substance is Kept

The conviction at issue in this case was unique enough that I thought the unpublished decision warranted a blog post.  Torres-Ledesma was convicted under Oklahoma law of "maintaining a dwelling where a controlled dangerous substance is kept."  The agency determined that his conviction qualified as an aggravated felony and a controlled substance violation.  The Tenth Circuit noted that the statute was divisible because it could be punished as a felony conviction or with a civil fine.  Only a felony conviction would have immigration consequences, and thus, the Tenth Circuit remanded to allow the Board of Immigration Appeals to conduct a modified categorical analysis.

How often do you find a criminal statute that explicitly permits punishment as a civil violation only? Probably more often than you realize, especially with so many states decriminalizing possession of marijuana, so keep it in mind when evaluating the immigration consequences of the "conviction."

The full text of Torres-Ledesma v. Lynch can be found here: http://www.ca10.uscourts.gov/opinions/14/14-9562.pdf

First Circuit Dismisses Appeal of a Denied Motion to Reopen

The First Circuit's decision in Mazariegos v. Lynch is not particularly noteworthy for its fact or the law that it applies.  It is, however, a reminder of how much more difficult it can be to attack a removal order collaterally (i.e. through a motion to reopen) than on direct appeal.  Mazariegos was granted adjustment of status and a waiver under 212(h) of the INA, but the Government appealed, and the Board of Immigration Appeals reversed the Immigration Judge, finding that Mazariegos did not merit an exercise of discretion.  Instead of appealing to a circuit court, he filed a motion to reopen with the Board, which was denied, and appealed to the First Circuit.  The First Circuit stated that "Mazariegos may have fared better had he sought review at this point [after the denial of his waiver by the Board] rather than following a motion to reopen denial, and we are not unsympathetic to the difficult place he finds himself in."

It's a curious statement, given that the court later recognizes that it would not have jurisdiction to review a discretionary denial of a 212(h) waiver.  "The law [the Government] cites indeed provides that courts cannot review the discretionary component of the Attorney General's section 212(h) waiver decision."

And yet, the procedural posture of a collateral attack is so much more difficult for a non-citizen to litigate, given the presumption of finality of orders of removal, that perhaps a circuit court appeal (to the extent that a judicially cognizable question of law or constitutional claim could be raised) would have served Mazariegos better.

The full text of Mazariegos v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1431P-01A.pdf  

Ninth Circuit Issues Unpublished Decision Finding that a Utah Conviction for Sexual Abuse of a Minor is not an Aggravated Felony

An unpublished crimmigration/illegal reentry decision - my favorite type of unpublished decision!  In evaluating whether a Utah conviction for sexual abuse of a minor qualified as a sexual abuse of a minor aggravated felony, the Ninth Circuit noted that the statute criminalizes non-sexual conduct—such as kicking a boy’s genitals—and thus, the statute is broader than generic federal definition of sexual abuse of a minor. 

Switching gears, the court also addressed whether the intent requirement of the statute, the court stated that "the Utah Court of Appeals appears to treat the two prongs of the intent element as alternative means of satisfying a single intent element.  Thus, a jury does not need to agree on whether a defendant had an intent to harm or an intent to arouse his sexual desire to render a guilty verdict.  This conclusion is bolstered by the charging information in this case, which listed both prongs of the intent element."  Because the statute is not divisible with respect to the intent element, the modified categorical approach is not appropriate.

The lesson: Utah Code § 76-5-404.1(2) is not a sexual abuse of a minor aggravated felony.

The full text of US v. Morales-Landa can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/06/22/14-50460.pdf

Seventh Circuit Remands a Denied I-751

Hernandez requested a waiver of the joint petition to remove the conditions on his residence, on the ground that he entered into a bona fide marriage that had ended in divorce.  Because of the many years that had passed since his divorce, Hernandez had very little supporting documentation to prove that he had entered into a bona fide marriage.  He did, however, testify unequivocally that married his ex-wife because he loved her.

On appeal, the Seventh Circuit disagreed with the Board of Immigration Appeals' finding that Hernandez had not submitted sufficient evidence to demonstrate by a preponderance of the evidence that his marriage was bona fide.  "Hernandez testified unequivocally that he did not marry Winger to obtain residency but because he 'loved her.'  If, as the Board assumed, Hernandez testified truthfully, then this testimony alone is enough to prove that his marriage to Winger was more likely than not bona fide.  Because the Board elected to credit all of Hernandez’s testimony—including his assurance that love, not residency, motivated him to accept Winger’s proposal—the only conclusion it could then logically reach was that Hernandez’s marriage was bona fide. The Board’s failure to reach that conclusion is a legal error. "

In response the Government's contention that Hernandez was required to provide corroborating documentation under the REAL ID Act, the court stated that "this provision of the REAL ID Act is irrelevant here because neither the IJ’s nor the Board’s ruling rests on a determination that Hernandez had failed to provide available corroborating evidence. "

The decision in Hernandez Lara v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-18/C:14-3305:J:Williams:aut:T:fnOp:N:1571971:S:0 

Ninth Circuit Determines that a California Conviction for Unlawful Laser Activity is not Categorically a CIMT

The Ninth Circuit addressed a conviction under section 217.26 of the California Peal Code for unlawful laser activity.  The court determined that the statute at issue criminalized the use of a laser pointer.  In rejecting the Board of Immigration Appeals' finding that the conviction qualified as a crime involving moral turpitude, the court stated that "such handheld laser demonstration devices are certainly not associated with 'deadly weapons.'”  

"Not only do other Cal. Penal Code provisions show that using a laser pointer is not equivalent to terrorizing someone with a laser targeting device, but § 417.26 does not include any 'appears-to-be-a-deadly-weapon' element.  If California wanted § 417.26 to include such an element, it could have done so, as it did in § 417.4, which prohibits drawing an 'imitation firearm . . . in such a way as to cause a reasonable person apprehension or fear of bodily harm.'”  As such, the court concluded that " § 417.26 has more in common with non-turpitudinous simple assault than with the morally turpitudinous 'threats with intent to terrorize' of § 422," and it is not a categorical match to the definition of a CIMT.  As the Government did not ask the Court to apply the modified categorical approach, the Court did not consider whether the statute was divisible and subject to a modified categorical inquiry.

The full text of Coquico v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/09-73867.pdf

Ninth Circuit Invalidates the Departure Bar (Again!)

Two regulations that predate the passage of IIRIRA (collectively referred to as "the departure bar") provide that a noncitizen who is the subject of immigration proceedings may not make a motion to reopen or reconsider “subsequent to his or her departure from the United States.” In Matter of Armendarez-Mendez, the Board of Immigration Appeals (BIA) held that the departure bar survived the passage of IIRIRA.  Previously, the Ninth Circuit had held that the departure bar does not apply to noncitizens who departed the United States either before removal proceedings have commenced, or after removal proceedings were completed.  The court has also held that the departure bar is invalid as applied to a noncitizen who is involuntarily removed from the United States. 

In Toor v. Lynch, the court addressed whether the departure bar may be applied to a noncitizen who voluntarily departs the United States during removal proceedings.  Consistent with the other circuits who have addressed the question, the Ninth Circuit held that the departure bar is inapplicable regardless of how the non-citizen left the United States.  Rejecting the decision in Armendarez-Mendez, the court stated that "Congress has directly spoken to the precise question at issue; the text of IIRIRA makes clear that the statutory right to file a motion to reopen and a motion to  reconsider is not limited by whether the individual has departed the United States."  "IIRIRA limits the right to file a motion to reopen and a motion to reconsider by number, time, and content, but not in any respect by whether the individual has departed the United States."

Notably, the Court stated that because Toor's motion to reopen was filed in a timely manner, it need not decide if the departure bar could be applied to untimely motions to reopen.  

The full text of Toor v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/10-73212.pdf