First Circuit Issues Tough Decision on Alien Smuggling

Dimova was a lawful permanent resident.  She worked at a hospital with a man named Mihaylov at a hospital in North Carolina.  Mihaylov eventually moved to Canada.  Later, he asked Dimova to help him by driving his family from Canada to the United States; he cited a back problem as the reason he couldn't make the long drive himself.  As the group approached the border, Mihaylov and his wife tried to leave the car and implored Dimova to use certain documents to get their child across the border where she could pick them up.  Dimova refused, and left all three Mihaylovs in Canada, before driving the car across the border.  After re-entering the United States, she became concerned for the well-being of Mihaylov's small child, and proceeded to the rendezvous point on the United States side of the border.  Subsequently, they were all apprehended by Border Patrol officers, and Dimova was charged with removability for alien smuggling.  Though recognizing the untenable position that MIhaylov placed Dimova in with respect to the safety of the small child, and recognizing that Dimova did not intend to engage in alien smuggling while in Canada, the Immigration Judge found that Dimova's act of picking the Mihaylovs up at the rendezvous point constituted encouragement, inducement, or assistance in alien smuggling.  The Board of Immigration Appeals affirmed, concluding that by returning for and picking up the Mihaylovs, all the while knowing they had entered the United States illegally, Dimova affirmatively assisted the Mihaylovs' illegal entry.

On appeal, the First Circuit agreed that Dimova did nothing in Canada to encourage, induce, assist, aid, or abet the Mihaylovs' crossing.  Nevertheless, the Court found that the Mihaylovs had not completed their entry into the United States at the time Dimova picked them up.  "Although there is no evidence showing the Mihaylovs were under surveillance from the time they crossed the border to the moment of their arrest mere hours later, the record demonstrates the Mihaylovs did not exercise their free will in any meaningful way after their physical crossing. The only thing the Mihaylovs did in the United States was wait overnight, in a remote wooded area, for Dimova to pick them up. All told, they were in the United States for a matter of hours, just a walk from the border, before Dimova rendered the assistance necessary for them to move forward with their effort to enter the country without apprehension.  Moreover, the group's apprehension occurred in Vermont, long before they arrived at their planned end-destination in North Carolina. Accordingly, we can not say on these facts that the Mihaylovs' entry was complete at the time Dimova came back for them."

The court declined to establish any bright-line rules for when an entry is complete, instead confining its ruling to the facts before it.  

The full text of Dimova v. Holder can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-1550P-01A.pdf

Second Circuit Dismisses Petition for Review of Denied CAT Claim; Finds that Petitioner did not Raise Colorable Constitutional Claim or Question of Law

Ortiz-Franco requested protection under the Convention Against Torture (CAT) on the ground that members of La Mara Salvatrucha street gang (“MS‐13”) would torture and kill him because of information he provided to federal prosecutors.  The Immigration Judge denied his application, and the Board of Immigration Appeals (Board) affirmed.  On appeal to the Second Circuit, Ortiz-Franco argued that the Board erred in concluding that he did not show the requisite likelihood of torture or that any torture by gang members would occur with the acquiescence of Salvadoran government.  

Unfortunately, because Ortiz-Franco had been found removable based on criminal grounds, the Second Circuit's jurisdiction was limited to review of constitutional claims and questions of law.  The court noted that its past case law on this jurisdictional issue was unclear, but firmly concluded (for the first time) that its jurisdiction was circumscribed to constitutional issues and questions of law because of Ortiz-Franco's crime-based removability.  The court then concluded that Ortiz-Franco's appeal was merely a challenge to the Immigration Judge's fact-finding, and did not raise a constitutional claim or a question of law.

The full text of Ortiz-Franco v. Holder can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/8520df4d-9fbc-42ec-8620-41b090e80b0a/2/doc/13-3610_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8520df4d-9fbc-42ec-8620-41b090e80b0a/2/hilite/ 

Seventh Circuit Reverses Denial of a Motion to Reopen based on Ineffective Assistance of Counsel

Petitioner Chen applied for asylum on the basis of the harm he had suffered for violating China's One Child Policy.  At issue (among other things) was whether Chen, in fact, had two children.  At the request of his first attorney, Ming, he requested  birth certificates from china for both children.  A forensic document analysis determined that his son's birth certificate was fraudulent.  According to Chen, Ming did not inform him of his, but instead told him that certificate was useless and he needed another one.  Though he knew that a genuine certificate was not available in China for his son because his illegal birth was never registered, Chen asked his father in China to send another birth certificate for his son.  A forensic analysis determined that this certificate, too, was fraudulent.  At that point, Chen hired a new attorney (Zhang).  The Immigration Judge denied Chen's application.  The Board of Immigration Appeals (Board) affirmed that decision.

Chen then retained new counsel and moved the Board to reopen based on Ming and Zhang’s ineffective assistance.  In a detailed brief, Chen methodically argued that each inconsistency or deficiency identified by the IJ could be attributed to his counsel’s incompetence, including a translation error in his application that Ming acknowledged making.  Chen also argued that Ming’s negligence misled him into submitting the fraudulent birth certificates because she never explained to him that the government was questioning the authenticity of his son’s birth certificate.  The Board denied the motion.  Although it agreed that the attorneys had behaved in a substandard manner and that Chen had complied with all of the procedural requirements to support a motion to reopen based on ineffective assistance of counsel, it determined that he could not establish the requisite prejudice.  It focused exclusively on the submission of the two fraudulent birth certificates, essentially concluding that Chen had doomed himself by submitting them.  

On appeal to the Seventh Circuit, Chen prevailed.  The court recognized that the Board's decision could be interpreted in two ways, both of which required remand.  

One possibility was that the Board "ruled that because [Chen] knew that his son’s birth certificates were fraudulent, his claim necessarily fails regardless of his attorneys’ representation.  If that is the correct reading of the Board’s decision, then its reasoning is erroneous.  A finding that an applicant knowingly offered fraudulent evidence allows an IJ to find an applicant not credible, but it does not require an adverse credibility ruling or compel the IJ to deny the claim solely based on the fraudulent submission."  Notably, the IJ had not actually rendered an adverse credibility determination in Chen's case!

The second possibility is that the "Board ruled that because Chen knowingly submitted false birth certificates, he did not corroborate the heart of his claim, and therefore, lacking this essential corroboration, Chen would have lost even with competent counsel.  But if the Board ruled that Chen must lose because he lacks corroboration, its ruling is procedurally flawed because it ignores Chen’s main argument in his motion to reopen: the IJ required corroboration only because his attorneys ineptly caused the IJ to find Chen’s testimony inconsistent.  If his attorneys had properly presented his testimony, Chen explains, any inconsistencies might have vanished, and the IJ might have found his testimony, standing alone, sufficient to carry his burden without the need for corroboration."  The Seventh Circuit deemed this a potentially meritorious argument, and found that the Board failed to adequately consider it.

The full text of Chen v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D04-01/C:14-2411:J:PerCuriam:aut:T:fnOp:N:1527153:S:0

Third Circuit Reverses BIA's CAT Denial for Indian Woman who Engaged in an Inter-caste Marriage

The Third Circuit was on a roll this week with interesting unpublished cases.  Rita Bhatt, a citizen of Indian, sought protection under the Convention Against Torture (CAT) based on the torture she feared at the hands of her family because she had married a man from another caste.  The Immigration Judge granted her application, but the BIA reversed, finding insufficient evidence that the Indian government would acquiescence in any torture.  The BIA noted that Bhatt had never reported her family's abuse to the police (she testified that to do so would be fruitless because she could afford to bribe the police and the police would not get involved in what they considered to be a family dispute).  The BIA cited country conditions reports noting the Indian government's attempts to mitigate the stigma of the caste system, but ignored the Immigration Judge's determination that India had a long history of failing to protect women and that the Indian government remains “apathetic to the point of maintaining a de facto policy of discrimination and violence against women.” 

The Third Circuit reversed, criticizing the BIA for applying the wrong legal standard.  "The BIA here appears simply to have ignored the evidence that was before the IJ.  In reviewing the country conditions, the BIA focused on the government’s official policies—as set forth in India’s Constitution, and the 'instructions' of the Supreme Court—while largely ignoring the IJ’s findings regarding the evidence of actual country conditions . . . And in reviewing Bhatt’s testimony, the BIA concluded that Bhatt’s failure to give the police the opportunity to respond to her past torture materially undermined her case but did not address Bhatt’s testimony explaining her reasons for declining to report her abuse, which the IJ found credible.  The BIA’s conclusions are in conflict with what we and other courts have said are appropriate considerations in determining whether a government will likely acquiesce in a petitioner’s torture . . . While evidence that a petitioner did notify police, and they did nothing, can support the claim, specific knowledge by the government need not be shown.  Rather, willful blindness may be proven by other evidence, which may include testimony like petitioner offered here as to her reasons for declining to report. The BIA did not take issue with the IJ’s credibility finding concerning this or other aspects of the petitioner’s testimony, yet it failed to acknowledge, much less discuss, that evidence before concluding the IJ clearly erred.  Perhaps the more fundamental flaw in the BIA’s analysis was its focus on government efforts rather than actual conduct, i.e., the results of those efforts . . . A government’s policies to root out torturous activity are also not dispositive of the issue of whether such torturous activity occurs with acquiescence.  We conclude that the BIA misapplied the clear evidence standard of review and misconstrued what determines “acquiescence”—i.e., actual conditions and conduct that would be present and occur rather than dogma or court “instructions” that amount to no more than the government’s position or efforts—and, thus, erred in applying the law to the facts."

This insightful analysis may be useful to practitioners facing seemingly positive government steps to protect citizens that are starkly different than the actual country conditions reported by a client.

The full text of Bhatt v. Att'y General can be found here: http://www2.ca3.uscourts.gov/opinarch/141485np.pdf

Third Circuit Criticizes BIA's"Cherry-Picking" Analysis of Country Conditions Evidence

Occasionally, I run across an unpublished case that I think is worth blogging about.  This week, the Third Circuit dismissed an appeal stemming from a decision by the Board of Immigration Appeals (BIA) to deny Jin Long Zhang's motion to reopen his removal proceedings based on changed country conditions in China that related to the likelihood that he be persecuted as a practicing Catholic.  Although the Third Circuit ultimately determined that the BIA did not abuse its discretion, it expressed significant reservations about the BIA's analysis.

First, the court noted that the BIA’s analysis of the Religious Freedom Report was troublesome, as portions of the report that supported Zhang's option appeared to have been ignored.  "For instance, the BIA failed to address a portion of the Religious Freedom Report that indicates that religious adherents have been 'harassed, detained, arrested, or sentenced to prison . . . for activities . . . related to their religious beliefs and practice.' This statement, among others, appears to directly relate to and support Zhang’s claim of changed country conditions in China."

Second, the BIA attempted to rely on the adverse credibility determination rendered in Zhang's removal proceedings to discredit the evidence submitted in support of his motion.  The court was troubled by this, as Zhang's original asylum claim was based on a different ground (resistance to a coercive population control policy) than the one supporting his motion to reopen (religion).

Third, the court criticized the BIA's treatment of news articles supporting Zhang's motion to reopen, noting that "the BIA did not appear to consider these news articles at all, and, if they were considered, there was no explanation provided for why they were rejected."  The court stated that in other circumstances, this could be ground for a remand.

For those attorneys frustrated by an adjudicator's apparent disregard of supporting evidence for no reason, this decision may provide some excellent arguments on appeal.

The full text of Zhang v. Att'y General can be found here: http://www2.ca3.uscourts.gov/opinarch/134504np.pdf

Fifth Circuit Addresses CA Drug Conviction

In the context of a federal criminal sentencing case, the Fifth Circuit addressed section 11351 of the California Health and Safety Code (possession or purchase for sale of a controlled substance).  The court determined that California's controlled substance offenses criminalized substances not found in the federal Controlled Substances Act (CSA).  In this regard, the Fifth Circuit's analysis mirrors the Ninth Circuit's analysis of the statute.  Like the NInth Circuit, the Fifth Circuit determined that the statute was divisible.  The court then proceeded to consult the complaint under the modified categorical approach, determined that the substance at issue was heroin (a substance listed in the federal CSA), and concluded that the petitioner had been convicted of a drug trafficking offense.

The full text of US v. Gomez-Alvarez can be found here: http://www.ca5.uscourts.gov/opinions/pub/14/14-40059-CR0.pdf 

Ninth Circuit Concludes that Cal. Penal Code 273.5 is a Crime of Domestic Violence

Bad news today for Ninth Circuit crimmigration gurus (like myself).  The Ninth Circuit has laid to rest any question as to whether Cal. Penal Code 273.5 (a common domestic violence statute that criminalizes assaults on cohabitants - individuals not typically conceived of as part of a domestic violence scheme) categorically matches the definition of a crime of domestic violence (it does).  Though I disagree with the court's determination that cohabitants are the substantial equivalent of a spouse (California state law clearly permits a person to have multiple cohabitants at once), the precedential case makes Cal. Penal Code 273.5 a very dangerous conviction for any non-citizen.  We will have to eagerly await to see if the court grants a petition for rehearing. 

The full text of Marquez Carrillo v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/31/12-70779.pdf

Third Circuit Affirms Denial of LGBT-Based Honduran Withholding Claim

After the DHS decided to reinstate Gonzalez-Posadas' pre-existing expedited order of removal, he was provided a reasonable fear interview, where he expressed fear of being harmed by his family and the gangs due his perceived homosexuality.  The interviewing officer determined that he had a reasonable fear of persecution, and he was placed in withholding of removal/Convention Against Torture proceedings.  During these proceedings, Gonzalez-Posadas testified that he is gay and that his cousin, a member of MS-13, had raped him twice in Honduras.  He also described mistreatment by other family members and sexually-charged threats by other gang members.  The Immigration Judge (IJ) denied Gonzalez-Posadas' requests for withholding of removal and protection under the Convention Against Torture.  The IJ determined that Gonzalez-Posadas' credibility was suspect because his story had "evolved" over time, seemingly demonstrating harsher and harsher treatment by the police and others as it progressed.  The IJ also determined that the unreported rapes and homophobic slurs did not amount to past persecution on account of Gonzalez-Posadas' membership in the particular social group composed of homosexual men, and found that his alternative social group (young Honduran men who share experiences of repeated resistance to gang recruitment) was not cognizable because it did not exist independent of the alleged persecution.  The BIA affirmed the IJ's decision.

On appeal, Gonzalez-Posadas challenged only the IJ's decisions regarding past persecution on account of his homosexuality and a clear probability of future harm on account of his homosexuality.  The Third Circuit acknowledged that the IJ had conflated the question of whether the harm Gonzalez-Posadas suffered rose to the level of persecution with the question of whether that persecution was directed at him on account of a protected ground.  The court then assumed that the harm he experienced did, in fact, rise to the level of persecution, but found that Gonzalez-Posadas' testimony did not establish that the gangs targeted him because of his homosexuality instead of his refusal to join them or provide them with financial support or because of his decision to report them to the Honduran police.  As for the rapes he endured at the hands of his cousin, the court agreed with the IJ that they were “isolated criminal acts” that were not motivated by Gonzalez-Posadas’s homosexuality.

With regard to the issue of future harm, the court noted that the Honduran government has established a special unit in the attorney general’s office to investigate crimes against LGBT persons and other vulnerable groups.  It concluded that while the documentary evidence demonstrated that LGBT persons may face violence at the hands of their fellow Honduran citizens and suffer indignities and discrimination, the record did not compel the conclusion that there is a “systematic, pervasive, or organized” pattern or practice of persecution of LGBT persons in Honduras. 

The full decision in Gonzalez-Posadas v. Att'y General can be found here: http://www2.ca3.uscourts.gov/opinarch/141732p.pdf

Ninth Circuit Clarifies Standards Governing Internal Relocation and Protection under the Convention Against Torture

Sitting en banc, the Ninth Circuit reviewed its previous case law on who bears the burden of demonstrating that internal relocation is not possible when an application requests deferral of removal under the Convention Against Torture.  The court recognized that its previous decisions in Hasan v. Ashcroft, Lemus-Galvan v. Mukasey, and Singh v. Gonzales suggested that an applicant must demonstrate that internal relocation is impossible before being granted deferral of removal.  It also recognized that its decision in Perez-Ramirez v. Holder, which applied the same burden shifting scheme that applies in asylum cases, suggested that once an application demonstrates past torture, the Government bears the burden of proving that internal relocation is reasonable.  Recognizing that the regulations governing deferral of removal direct an adjudicator to consider all relevant evidence, including evidence of the possibility of internal relocation, the court rejected both of these lines of cases, stating that the regulations do "not place a burden on an applicant to demonstrate that relocation within the proposed country of removal is impossible because the IJ must consider all relevant evidence; no one factor is determinative.  Nor do the regulations shift the burden to the government because they state that the applicant carries the overall burden of proof. To the extent that Hasan, Lemus-Galvan, Singh, and Perez-Ramirez conflict with the plain text of the regulations, they are hereby overruled."

The court also addressed whether the applicant's removal from the United States could moot the petition for review, but found sufficient evidence that the applicant was still present in the United States (namely, that he had renewed his driver's license) to determine that the case was not moot, as the applicant still had an interest in being granted deferral of removal.

The full text of Maldonado v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/27/09-71491.pdf

Seventh Circuit Chastises Attorney for Repeatedly Making the Same Procedural Error

Shaohua He  filed applications for asylum, withholding of removal, and protection under the Convention Against Torture.  When his applications were denied, he appealed the denial to the Board of Immigration Appeals, who affirmed the Immigration Judge's decision.  He then hired a new attorney, who, instead of filing a petition for review with the Seventh  Circuit, filed a motion to reconsider with the Board of Immigration Appeals.  By the time the Board of Immigration Appeals denied the motion, the 30 day window to file a petition for review of the underlying denial of He's applications had expired.  Thus, all He could do was to file a petition for review of the denied motion to reconsider.  Unfortunately, his attorney focused exclusively on the denial of his applications for relief, and did not address why the denial of the motion to reconsider (the issue before the Seventh Circuit) was inappropriate.  The Seventh Circuit signaled out He's attorney by name, noting that he had repeatedly made this procedural error.  The court ordered its clerk's office to send the decision to the Illinois State Bar for any disciplinary action the Bar deemed necessary against the attorney.  The court also noted that if the attorney continued this behavior, it could initiate disciplinary action against him for filing frivolous appeals.

This is the second published decision from the Seventh Circuit this month that identifies an immigration attorney by name and chastises him for inadequate representation.  Seventh Circuit attorneys (and all attorneys for that matter) beware!  You need to understand the rules of appellate court jurisdiction so that you do not forfeit your client's right to an appeal! 

The full text of He v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-27/C:14-3104:J:Hamilton:aut:T:fnOp:N:1523999:S:0

BIA Construes Bond Regulations

In a short disposition, the Board of Immigration Appeals clarified that when a detainee is scheduled for a bond hearing in one jurisdiction, but is transferred to another jurisdiction by the Department of Homeland Security, the transfer does not deprive an Immigration Judge in the original jurisdiction of the authority to conduct a custody redetermination hearing.  However, the Board deferred to the Office of the Chief Immigration Judge to determine when and where a bond hearing should be scheduled.

The full text of Matter of Cerda Reyes can be found here:

 http://www.justice.gov/eoir/vll/intdec/vol26/3829.pdf

10th Circuit Addresses Mandatory Detention Provisions

The immigration law classifies certain individuals as "mandatory detainees," meaning that once they are placed into immigration custody, an Immigration Judge does not have the authority to grant them bond.  The mandatory detention provision, which primarily applies to individuals with criminal histories, states that the Government must take custody of a non-citizen when the non-citizen is released.  The question that courts have been grappling with is what happens when a non-citizen is released from criminal custody, and isn't arrested by immigration officials until a later date (whether that be hours, days, or years after the non-citizen's release).  Is that individual still subject to the mandatory detention provision?

The Board of Immigration Appeals (Board) has previously answered this question in the affirmative in Matter of Rojas, finding that the mandatory detention provision applies to non-citizens convicted of certain criminal offenses even when there is a gap between criminal custody and immigration custody.  But Mr. Olmos challenged this interpretation, arguing that the Government must place him into immigration immediately upon his release from criminal custody in order to rely on the mandatory detention provision as the source of authority for his continuing detention without a bond hearing.

The Tenth Circuit deferred to the Board, finding the mandatory detention provision to be ambiguous and the Board's interpretation to be reasonable.  The court also noted that the Government is under an affirmative duty to detain individuals described in the mandatory detention provision, and that even if they are required by the statute to do so immediately upon their release from criminal custody (as argued by Mr. Olmos), the Government's failure to do so would not negate its continuing obligation to detain that person.  The Tenth Circuit refused to permit the scenario where an Immigration Judge might grant bond to an individual that the Government had an obligation to detain, thus preventing the Department of Homeland Security (charged with detaining non-citizens for immigration violations) from fulfilling its continuing statutory obligation to detain.  

The full text of Olmos v. Holder can be found here: http://www.ca10.uscourts.gov/opinions/14/14-1085.pdf

Ninth Circuit Determines that Arizona Aggravated Assault is not Necessarily a Crime of Violence under the Sentencing Guidelines

The Ninth Circuit, in the context of a sentencing hearing for illegal re-entry, addressed where Arizona's aggravated assault could qualify as an aggravated felony.  While the standards for a crime of violence under the federal sentencing guidelines differ somewhat from the standard for a crime of violence in immigration law, the court made several observations about the statute of conviction at issue that could carry over into an immigration context.  

For example, the court noted that a conviction for aggravated assault in Arizona can be based on a mens rea of ordinary recklessness.  Under Ninth Circuit case law, that would be insufficient to deem a conviction a crime of violence, which requires intentional or knowing conduct.  

The court also observed that a statement by counsel during a plea colloquy regarding the mens rea involved in a particular conviction is not cognizable under the modified categorical approach if the factual admission is not related to an element of the conviction.  Because a conviction for aggravated assault in Arizona can be supported by recklessness, there would be no need for defendant to admit to a higher level of intent when pleading.  Absent a narrowing language in the plea agreement or charging document that could verify such a higher level of intent, such a statement about intent during a plea colloquy is insufficient to demonstrate that a conviction rested upon the higher level of intent.

The court recognized that its decision is in tension with Third Circuit case law, which allowed for a defendant's factual admissions during a plea colloquy to resolve the issue of what level of intent his conviction rested upon.  

This case has strong language that attorneys can use to advocate against a court's consideration of factual admissions during a plea colloquy, if such admissions do not correspond to the specific allegations in a charging document or plea agreement.  It may help protect our clients against their unwitting statements that the factual circumstances of their offenses were more severe that necessarily demonstrated by the record of conviction.

The full text of US v. Marcia-Acosta can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/23/13-10475.pdf

Sixth Circuit Grants Petition for Review of a Denied Motion to Reopen; Finds that Unsworn Emails have Evidentiary Value

In a short but sweet disposition, the Sixth Circuit disagreed with the Board of Immigration Appeals' denial of a motion to reopen based on changed country conditions.  Uwineza, a citizen of Rwanda, submitted several emails from friends in Rwanda that indicated that government officials were looking for her because they believed she supported an opposition political figure.  The Board discredited the emails because they were unsworn and came from interested witnesses who were not subject to cross-examination.  The Sixth Circuit rejected this decision, deeming the Board's decision to be devoid of rational explanation.  "The new evidence appears to satisfy the requirements of not having been previously available and indicating a change in conditions in Rwanda material to Uwineza’s claim. The BIA rejected the evidence on the ground that the letters were unsworn and appeared to have been written in support of her case, which we have found invalid. The BIA also noted that the letters were from interested witnesses, but interested witnesses would normally be expected to have information relevant to a petitioner’s claim, and that the witnesses were not subject to cross-examination, which will also normally be the case in a motion to reopen."

The full text of Uwineza v. Holder can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0053p-06.pdf 

Third Circuit Addresses Marriage Fraud and 237(a)(1)(H) Waivers

I don't usually blog about unpublished cases, but today I'm making an exception.  The Third Circuit issues a non-precedential decision regarding marriage fraud (one of the stickiest areas of immigration practice) and 237(a)(1)(H) waivers which I think is worthy of some attention.  Tima obtained conditional residence through his marriage to a U.S. citizen, but was later convicted in federal court for marriage fraud.  He admitted that his marriage to his first wife was fraudulent.  He later remarried and had three children with his second wife, who eventually became a naturalized U.S. citizen.  Tima was placed in removal proceedings, where he was charged with removability based on marriage fraud, commission of a crime involving moral turpitude, and the fact that his conditional residence was terminated.  Tima argued to the Third Circuit that he could stack a 212(h) waiver (which would waive the immigration consequences of the criminal conviction) with a 237(a)(1)(H) waiver (which would waive the immigration consequences connected with marriage fraud even when there is no criminal conviction).  The Government argued (and the Immigration Judge agreed) that the termination of Tima's conditional residence for failure to file a petition to remove the conditions on his residence (I-751) was a separate ground of removability that could not be cured by the waivers.

The Third Circuit found that the 212(h) argument had not been exhausted before the Board of Immigration Appeals, and thus, it had no jurisdiction to consider it.  However, it disagreed with the Immigration Judge's finding that the termination of Tima's residence was a separate ground of removability that could not be cured by the 237(a)(1)(H) waiver.  The court noted that the form to remove the conditions on his residence would have required Tima to declare, under penalty of perjury, that his marriage to his first wife was not for the purposes of obtaining immigration benefits. Before the form was due, however, he had pled guilty to entering into a sham marriage to his first wife to obtain immigration benefits. Thus, if he had submitted the I-751, he would have committed perjury.  Thus, the Government's argument that Tima should have filed the I-751  was untenable.

The Third Circuit remanded the case to allow for consideration of the 237(a)(1)(H) waiver.  Moreover, even though the 212(h) waiver had not been exhausted before the Board, Tima would have the opportunity on remand to fully raise this issue.  

The full text of Tima v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/133935np.pdf

The Board Addresses Corroborating Evidence for an Asylum Case

In a recent published decision, the Board of Immigration Appeals (Board) addressed the proper procedure for providing corroborating evidence in any asylum case.  The Board determined that an Immigration Judge is not required to identify the specific corroborating evidence at the merits hearing that would be considered persuasive under the facts of the case to meet the applicant’s burden of proof, nor is the judge required to grant an automatic continuance for the applicant to present that corroborating evidence at a future merits hearing.  Instead, if an applicant requests a continuance to secure corroborating evidence, an IJ must determine whether good cause exists to continue the case.  The Board suggested that a continuance for an additional merits hearing might be appropriate where the Immigration Judge determines that that the applicant was not aware of a unique piece of evidence that is essential to meeting the burden of proof.  The Board also recognized that its decision is in tension with Ninth Circuit's decision in Ren v. Holder, which may require an Immigration Judge to give advance notice of the specific evidence necessary to establish the claim and an automatic continuance to obtain such evidence.

On a more lighthearted note, the Board recognized a fact that should be obvious: wikipedia articles have almost no indicia of reliability.

The full text of Matter of L-A-C- can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3828.pdf

Return to Tijuana

Yesterday, I returned to Tijuana for my second visit to Casa Del Migrante, a shelter that helps recent deportees with no place to go when they arrive in Mexico.  Along with 25 other attorneys, I helped screen more than 80 people for immigration relief.  Buried among many sad stories of families torn apart and lives turned upside down, we found two potential derivative U.S. citizens, as well several people who likely qualify for U visas or may be eligible for humanitarian parole. The work is heart wrenching - it's impossible to imagine the true consequences of deportation until you sit down with someone and see the tears well up in their eyes as they talk about the relatives still in the United States, desperately trying to find a way to cope with the financial and emotional loss of a loved one.  But despite the emotional toll it can take, it's good work.  These people need to understand their legal status, even if the only advice an attorney can give is that they have to stay outside the United States for an extended period of time (often 10 years) before they can start the process of legally immigrating.  Some of them don't even have that option.  My hat is off to my good friend and colleague, Nora Phillips, who organizes these trips, and who is working on a starting a nonprofit organization dedicated to providing legal assistance to deportees.  There is still much work to be done, and she's leading the crusade to do it.  

Ninth Circuit Finds that Government Agents Destroyed Evidence in Bad Faith

Normally, I reserve my blog posts for immigration cases or federal sentencing cases which have "crimmigration" implications.  But today I'm deviating from my norm.  The Ninth Circuit issued a really interesting decision in a federal drug smuggling case.  At issue was whether the government had an obligation to preserve videotape footage from the port of entry that may have demonstrated the defendant acted under duress.  Below is an excerpt from the decision, where the court chastises the government for acting in bad faith by destroying the videotape footage.

As the district court found, the destroyed video was potentially useful evidence to support defendant’s claim of duress. The video footage may have shown Zaragoza throwing her passport on the ground, trying to loosen the packages of drugs from her body, Karen and Chino removing her from the pedestrian line, and other behavior that Zaragoza allegedly engaged in to make herself “obvious” to law enforcement. Such evidence, especially Zaragoza trying to attract the attention of the border inspectors, would be particularly helpful to Zaragoza establishing the third element of her duress claim. The video may have also shed light on the extent to which Karen was overseeing and controlling Zaragoza, and whether it would have been feasible for Zaragoza to have alerted border inspectors to the contraband at an earlier time. As such, the district court correctly found that the video footage was “potentially useful evidence.” The district court, however, clearly erred in finding that the exculpatory value of the video footage of the Port of Entry pedestrian line was not readily apparent to Agent Alvarado.  A review of the interview transcript establishes Agent Alvarado’s knowledge of the potentially 12 UNITED STATES V. ZARAGOZA-MOREIRA exculpatory value of the pedestrian line video before it was destroyed. From the beginning to the end of Agent Alvarado’s hourlong interview with Zaragoza, Zaragoza repeatedly alerted Alvarado to her duress claim and the potential usefulness of the pedestrian line video footage. Shortly after questioning began, when asked to tell her side of the story, Zaragoza stated “[y]eah, I made it obvious. I was making — I wanted to be known. I didn’t want to do it.” Thereafter, Zaragoza repeatedly stated throughout the interview that she had tried to attract the attention of the authorities while in the pedestrian line by “making a lot of noises so I could be noticed,” and by making herself “obvious.”

Despite Agent Alvarado’s testimony that she “overlooked” retrieving the video footage because it was “just something I didn’t think about doing,” Alvarado undoubtedly appreciated the significance of Zaragoza’s claims during the interview. While discussing Zaragoza and Karen’s interactions in the pedestrian line, Alvarado asked Zaragoza how long she had waited in line, to which Zaragoza indicated that she had been in the pedestrian line for about 40 minutes. Agent Alvarado also asked Zaragoza why she did not alert border inspectors to the drugs earlier, and Zaragoza explained that she was “scared because Karen was with me.” Alvarado then followed up, asking Zaragoza if Karen was “right next to [her],” if the two had been in the “same lines,” and if Karen was “right there.” Later on, Alvarado confirmed that “Karen was right behind you in the same line?” Agent Alvarado obviously recognized the importance of Zaragoza’s statement that Karen was with her in the pedestrian line. 

The government asserts that failure to preserve the video evidence was a mere “oversight,” and that negligence or recklessness is not sufficient to support a finding of bad faith. In the context of the instant case, we disagree. Contrary to the government’s contentions, Agent Alvarado’s actions were not merely negligent or reckless, nor was the video destroyed in the normal course of the government’s usual procedures. Agent Alvarado testified that she has a professional obligation to collect and preserve both exculpatory and inculpatory evidence. She admitted that she understood that a defendant who is threatened or forced to commit a crime has a possible defense to that crime. Agent Alvarado also testified that she knew the pedestrian line at the Port of Entry was under constant video surveillance and that she had the ability to review and preserve the video recordings. However, despite this knowledge, including her knowledge of the apparent exculpatory value of the evidence, Alvarado made no attempt to view or preserve the Port of Entry video before it was destroyed.  In light of the apparent value of the video evidence, which was known to Agent Alvarado, her actions following Zaragoza’s interview are sufficient to establish that she made “a conscious effort to suppress exculpatory evidence,” thereby acting in bad faith. 

In light of these actions, the court found that the defendant's due process rights had been violated and ordered the indictment dismissed.

So why am I writing about this? In part, because I have heard many individuals tell me that they expressed a fear of returning to their home country to CBP, despite the forms CBP later fills out that omit this information.  This case is recognition that CBP does not always act in good faith and is often negligent in its record keeping.  In addition, it's a reminder to immigration attorneys that video footage from the borders exists, and can be a valuable source of evidence (if we can get them before they're destroyed!)

The full text of USA v. Zaragoza-Moreira can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/18/13-50506.pdf

Missouri 2nd Degree Burglary Matches Generic Definition of Burglary

In a decision perhaps more interesting for its discussion of privacy interests and Fourth Amendment law, the Eighth Circuit reaffirmed, in light of the Supreme Court's decision in Descamps v. US, that second-degree burglary in Missouri (including commercial burglary) matches the generic definition of a burglary offense.  Though this finding was made in the context of a federal criminal sentencing action, it has implications for immigration practitioners.  If second-degree burglary in Missouri matches the federal generic definition of a burglary offense, then a conviction for second-degree burglary in Missouri that is accompanied by a sentence of 1 year or more is very likely an aggravated felony for immigration purposes under section 101(A)(43)(G) of the Immigration and Nationality Act.  

You can read the full text of US v. Bearden (including the more interesting Fourth Amendment/suppression analysis) here: http://media.ca8.uscourts.gov/opndir/15/03/141659P.pdf

Seventh Circuit Denies CAT Protection to a Bosnian Refugee

Emir Lenjinac entered the United States as a refugee, after Serbian forces burned his home to the ground and took several relatives prisoner during the Srebrenica massacre.  Lenjinac later became a lawful permanent resident, but in 2010, pled guilty to dealing in cocaine.  He was placed in removal proceedings, where he was eligible only for protection under the Convention Against Torture (CAT) because of his conviction.  His mother and brother testified in support of his application for protection under the CAT, describing fears that members of the military might kill Lenjinac because they previously killed other male family members during the civil war. Lenjinac testified that given his criminal history in the United States, he would likely be detained upon his return and tortured while in the Bosnian prison system. 

The Immigration Judge initially granted his application for protection under the CAT, but the Board of Immigration Appeals (BIA) overturned that decision, finding that there was insufficient evidence that parties in Bosnia-Herzegovina retained an interest in harming Lenjinac or would torture him upon his return, or evidence that he would be imprisoned for the purpose of causing him pain and suffering,

Lenjinac appealed to the Seventh Circuit, arguing that the BIA misstated the applicable burden of proof by requiring him to prove “that authorities will imprison him in order to cause him pain and suffering.”  The Seventh Circuit rejected this contention, finding that although the BIA may have used this phrase, it had considered all of the evidence in the record to determine if it was more likely than not (the proper standard for a CAT application) that Lenjinac would be tortured in Bosnia-Herzegovina.  

Lenjinac also argued that the fact that he is likely to be imprisoned or detained upon his return combined with evidence that torture is commonplace in Bosnian prisons satisfies his burden of proof.  The Seventh Circuit disagreed.  Although the court acknowledged the reports of life-threatening prison conditions and incidents of torture in Bosnian prisons, it determined that this evidence did not establish that it is more likely than not that Lenjinac would be tortured or abused; the court also noted that there was no evidence that these harsh prison conditions were intended to inflict pain or suffering on prisoners.  Finally, neither Lenjinac’s familial losses during the Bosnian civil war, his heritage, nor his lack of home to return to, established that he would be more vulnerable to mistreatment than the general prison population.  

The full text of Lenjinac v. Holder can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D03-17/C:14-1807:J:Bauer:aut:T:fnOp:N:1518299:S:0