Supreme Court Addresses the Denial of a Visa by a Consulate

Din is a U.S. citizen, married to an Afghani national.  Din filed an immigrant petition on her husband's behalf, which was approved.  However, when Berashk (Din's husband) went to the U.S. consulate, his request for an immigrant visa was denied on account of the State Department's determination that Berashk had engaged in terrorist activities.  The consular officer did not provide any further details as to how that determination had been reached.  Din sued in federal court, alleging that the consular official's decision (and failure to adequately explain that decision) impinged on her constitutional right to live with her husband in the United States.  The Supreme Court determined, unfortunately for Din, that there is no such constitutional right.

The Court first addressed whether the denial of Berashk’s visa application deprived Din of any life, liberty, or property interests.  "Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her—or for that matter even Berashk—of life or property; and under the [] historical understanding [of the Fifth Amendment right to due process], a claim that it deprived her of liberty is equally absurd. The Government has not 'taken or imprisoned Din, nor has it 'confine[d]' her, either by 'keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street.' Id.  Indeed, not even Berashk has suffered a deprivation of liberty so understood."  

Din had specifically alleged that her liberty interest in her marriage, her right of association with her spouse, her liberty interest in being reunited with certain blood relatives, and her liberty interest as a U. S. citizen under the Due Process Clause to be free from arbitrary restrictions on her right to live with her spouse had been violated by the consular official's determination.  Turning to the question of whether any of Din's fundamental rights had been violated, the Court acknowledged that "Din does not explicitly argue that the Government has violated this absolute prohibition of the substantive component of the Due Process Clause, likely because it is obvious that a law barring aliens engaged in terrorist activities from entering this country is narrowly tailored to serve a compelling state interest.  She nevertheless insists that, because enforcement of the law affects her enjoyment of an implied fundamental liberty, the Government must first provide her a full battery of procedural due-process protections."

The Court determined that nothing in its jurisprudent "establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship."  Moreover, "a long practice of regulating spousal immigration precludes Din’s claim that the denial of Berashk’s visa application has deprived her of a fundamental liberty interest."

Finally, the Court concluded Because Fauzia Din was not deprived of “life, liberty, or property” when the Government denied Kanishka Berashk admission to the United States, there is no process due to her under the Constitution. To the extent that she received any explanation for the Government’s decision, this was more than the Due Process Clause required. 

Justice Kennedy, concurring with plurality opinion, would not address whether Din has a fundamental right that is implicated in the immigration process of her husband, but would instead decide that any due process rights she has were satisfied by the process provided by the consular official (i.e. the denial notice stating that he had participated in terrorist activities).

The full text of Kerry v. Din can be found here: http://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

Supreme Court Addresses Federal Court Jurisdiction over Untimely Motions to Reopen

Mata, the petitioner, filed an untimely motion to reopen his removal proceedings.  He argued that his motion was not time barred because his prior attorney had provided him with ineffective assistance of counsel, which should excuse the tardy filing of the motion to reopen.  The Board of Immigration Appeals (Board) denied the motion, finding that it was untimely and that the filing deadline need not be equitably tolled because Mata had not demonstrated any prejudice from his prior counsel's alleged ineffective assistance.  On appeal to the Fifth Circuit, the court construed any request for equitable tolling as a request for the Board's to exercise its sua sponte authority to reopen proceedings.  As the circuit court had no jurisdiction to review the Board's decision not to exercise its sua sponte authority, the Fifth Circuit dismissed the appeal.  The Fifth Circuit is the only circuit that has ruled that it lacks jurisdiction to review equitable tolling requests, and the Supreme Court accepted review of Mata's case in order to resolve the circuit split on the issue.

The Supreme Court reaffirmed that the corcuit courts have jurisdiction when a non-citizen appeals from the Board’s denial of a motion to reopen a removal proceeding.  "Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling.   Under the INA, as under our century-old practice, the reason for the [Board]’s denial makes no difference to the jurisdictional issue. Whether the [Board] rejects the alien’s motion to reopen because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision." 

The Supreme Court noted that even if the Board additionally noted that it would not exercise its sua sponte authority to reopen a case, that did not deprive a federal court of its authority to review any other statutory ground invoked by a non-citizen when requesting reopening of his proceedings.  The Supreme Court left open the question of whether a federal court could properly decline review on jurisdictional ground the Board's refusal to exercise its sua sponte authority to reopen proceedings.

The full text of Mata v. Lynch can be found here: http://www.supremecourt.gov/opinions/14pdf/14-185_i4dk.pdf

Sixth Circuit Addresses Motion to Reopen Based on Lack of Notice

In a precedential decision addressing a motion to reopen based on lack of notice, the applicant claimed that the immigration officer inappropriately listed an address on the Notice to Appear that the applicant indicated belonged to an acquaintance, but which the applicant did not indicate was his address.  Though personally served with the Notice to Appear, the applicant did not attempt to correct the address by filing a change of address form with the Immigration Court.  As a result, the notice of hearing was mailed to the address on the Notice to Appear, the applicant did not receive the notice and did not attend his court hearing, and the Immigration Judge ordered the applicant removed in his absence.

Recognizing that the Ninth Circuit had reopened a case under similar circumstances, the Sixth Circuit respectfully disagreed with the Ninth Circuit, and determined that the "fact that the immigration official made the alleged error does not absolve Thompson.  Thompson had both the opportunity to provide his current, correct address at the time he received the Notice to Appear and the obligation to ensure that the INS had an address at which he could be reached throughout the proceedings.  This obligation necessarily included a duty to correct the address listed on the Notice to Appear, particularly since the Notice to Appear informed him that all future mailings would be sent to the address listed on the form."

The full text of Thompson v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0122p-06.pdf 

Fourth Circuit Addresses Maryland Conviction for Causing Abuse to a Child

The Fourth Circuit determined that a Maryland conviction for causing abuse to a child is not categorically a sexual abuse of a minor aggravated felony.  The court noted that Board of Immigration Appeals (Board) has yet to issue a published decision providing a generic definition of sexual abuse of a minor; the Board's previous precedential decision merely hinted at what the definition of sexual abuse of a minor might encompass, without providing a concrete generic definition for the federal courts to employ.

The court noted that the least culpable conduct criminalized under the statute includes the failure to act to prevent sexual abuse of a child when one has a duty to do so.  In light of the lack of a clear generic definition articulated by the Board, the court remained unconvinced that a mere failure to prevent harm comes within the ambit of sexual abuse of a minor.

Though this a promising decision, it is subject to being reviewed when the Board issues a precedential decision that the Fourth Circuit believes provides a concrete definition of sexual abuse of a minor.

The full text of Amos v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132005.P.pdf

Fifth Circuit Addresses Good Moral Character Requirements for Cancellation of Removal

In a reissued decision, the Fifth Circuit addressed whether confinement in a penal institution for more than 180 days for a conviction that does not qualify as a crime involving moral turpitude would still pose a statutory bar to establishing the requisite good moral character for cancellation of removal.  The court also addressed whether the 10 years of good moral character required for cancellation of removal dates back from the adjudication of the application for cancellation or from the date of service of the Notice to Appear.

The court concluded that an applicant is precluded from establishing the requisite good moral character if they are incarcerated for more than 180 days, even if the incarceration is not related to a crime involving moral turpitude.  The court further concluded that good moral character must be established in the 10 years preceding adjudication of the cancellation application.

The full text of Rodriguez-Avalos v. Lynch can be found here: http://www.ca5.uscourts.gov/opinions/pub/13/13-60736-CV1.pdf

My blog post about the original decision in Rodriguez-Avalos can be found here: http://www.sabrinadamast.com/journal/2015/3/8/no-good-moral-character-for-immigrant-who-serves-7-months-for-a-federal-conviction-for-falsely-claiming-to-be-a-us-citizen

Sixth Circuit Rules that Courts Need not Provide Asylum Applicants with Advance Notice of Evidence Required

The Sixth Circuit determined that the Immigration and Nationality Act does not require an Immigration Judge to advise an asylum applicant of the corroborating evidence he needs to submit to support his claim.  In so doing, the Sixth Circuit agreed with a similar ruling issued by the Seventh Circuit, but disagreed with the Ninth Circuit's stance on the issue.

The full text of Gaye v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0115p-06.pdf

Seventh Circuit Overturns Immigration Judge's Adverse Credibility Determination

In a very succinct and logical opinion, the Seventh Circuit undermined an Immigration Judge's adverse credibility determination, one alleged inconsistency at a time.  For each perceived inconsistency, the court explained why the cited statements did not cast doubt on the applicant's credibility.  In addition, the court tore apart the Immigration Judge's list of corroborating documentation, finding each of the proposed items to be unreasonable.

The decision is a fantastic template for how to draft a straightforward and persuasive appeal of an adverse credibility determination.

The full text of Liu v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D06-11/C:14-2354:J:Flaum:aut:T:fnOp:N:1568189:S:0

BIA Addresses Evaluation of Asylum Claims for Applicants with Cognitive Disabilities

In a published decision, the Board of Immigration Appeals (BIA) expressed concern with an IJ's evaluation of a cognitively disabled individual's credibility.  First, the BIA noted that the presence of clear indicia of mental incompetence, and found that the Immigration Judge should have held a competency hearing, even though the applicant was represented by counsel.  Second, the BIA determined that "where a mental health concern may be affecting the reliability of the applicant’s testimony, the Immigration Judge should, as a safeguard, generally accept that the applicant believes what he has presented, even though his account may not be believable to others or otherwise sufficient to support the claim.  The Immigration Judge should then focus on whether the applicant can meet his burden of proof based on the objective evidence of record and other relevant issues.  This safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication."

The full text of Matter of J-R-R-A- can be found here: http://www.justice.gov/eoir/file/477361/download 

Ninth Circuit Applies Circumstance Specific Approach

The Ninth Circuit evaluated a federal conviction for money laundering conspiracy this week, and determined that the conviction could be an aggravated felony involving fraud with loss to the victim in excess of $10,000.  To determine the amount of loss to the victim, it was appropriate to employ the circumstance specific approach and consult the pre-sentencing report.  It was not, however, appropriate, to consider the allegations of overt acts in the indictment to calculate the loss to the victim, as overt acts are not required to prove a conspiracy, and thus, the petitioner's conviction did not rest upon those acts.  

The full text of Arce-Fuentes v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/10/11-73131.pdf

Ninth Circuit Finds Asylum Applicant has no Procedural Due Process Rights

In an amended decision, the Ninth Circuit eviscerated the rights of certain non-citizens seeking asylum who have not been formally admitted into the United States.  In a 2-1 decision, the court determined that such individuals have no procedural due process rights, and thus, the Fifth Amendment is not implicated when an Immigration Judge relies solely on an overseas investigatory report generated by a Department of State official who is not available for cross-examination to find an asylum applicant's testimony not credible.  In addition, the court also found that the government met its statutory burden to make reasonable efforts to make the preparer of the investigatory report available for cross-examination when it relied on a blanket Department of State policy barring employees from testifying about such matters.  The court's alarming decision seems to leave asylum applicants with few options for challenging the reliability of hearsay reports generated by government employees.  Notably, by permitting the Immigration Judge to rely solely on the overseas investigatory report to support his adverse credibility determination, the Ninth Circuit has now created a split with five other circuits on the use of such reports.  The court did not seemed phased by this at all, focusing instead on the rampant fraud that it perceives to plague the asylum process and the immigration agencies at-large.  "The reason for this deplorable state of affairs is not difficult to figure out. The schizophrenic way we administer our immigration laws creates an environment where lying and forgery are difficult to disprove, richly rewarded if successful and rarely punished if unsuccessful. This toxic combination creates a moral hazard to which many asylum applicants fall prey."

The full text of Angov v. Holder can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/07-74963.pdf

Ninth Circuit Rules that Applicants for Special Rule Cancellation of Removal for Battered Spouses Cannot Seek a 212(h) waiver in Conjunction with Cancellation

An applicant for special rule cancellation of removal must prove that he is not inadmissible for certain criminal offenses.  In a decision earlier this week, the Ninth Circuit grappled with the situation of an applicant for special rule cancellation who had been convicted of crimes involving moral turpitude.  The applicant argued that he could qualify for special rule cancellation in conjunction with a 212(h) waiver, which is used to wave the immigration consequences of certain types of convictions, including convictions for crimes involving moral turpitude.  Deferring to the Board of Immigration Appeals' decision in Matter of Y-N-P-, the court determined that an applicant could for special rule cancellation could not rely on a 212(h) waiver to establish his statutory eligibility for cancellation.

The full text of Garcia-Mendez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/12-73430.pdf

Board of Immigration Appeals Reaffirms that a Grant of Family Unity Benefits does not Qualify as an Admission in any Status for the Purpose of Cancellation of Removal for Lawful Permanent Residents

This week, the Board of Immigration Appeals again determined that a grant of family unity benefits does not qualify as admission in any status for the purpose of cancellation of removal for lawful permanent residents.  Coincidentally, the Ninth Circuit issued a decision on the same day reaching the same holding.  Both decision rely on the rationale of the Board of Immigration Appeals earlier decision in Matter of Reza-Murillo. 

My blog post on the related Ninth Circuit case can be found here: http://www.sabrinadamast.com/journal/2015/6/10/ninth-circuit-finds-that-family-unity-benefits-do-not-qualify-as-an-admission-for-the-purpose-cancellation-of-removal-for-lawful-permanent-residents

The full text of Matter of Fajardo Espinoza can be found here: https://edit.justice.gov/sites/default/files/pages/attachments/2015/06/08/3840.pdf

Ninth Circuit Finds that Family Unity Benefits do not Qualify as an Admission for the Purpose Cancellation of Removal for Lawful Permanent Residents

In a decision earlier this week, the Ninth Circuit resolved tension between its case law and the Board of Immigration Appeals' case law on whether a grant of family unity benefits qualified as admission for the purpose of cancellation of removal for lawful permanent residents.  In 2005, the Ninth Circuit had determined that a grant of family unity benefits would qualify as an admission in any status, as required in the cancellation statute, in its decision in Garcia-Quintero v. Gonzales.  In 2010, the Board of Immigration Appeals published its decision in Matter of Reza-Murillo, in which it came to the opposite conclusion.  In its decision this week, the Ninth Circuit deferred to Matter of Reza-Murillo, finding that the Board of Immigration Appeals' interpretation of the word "admitted" to require a "lawful entry after inspection and admission" (a procedural regularity not required to be granted family unity benefits) to be reasonable.

The full text of Medina-Nunez v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/08/14-70657.pdf

Board Addresses Proper Standard for Evaluating Whether a Conviction Qualifies as a Crime of Violence

In a decision that only be described as "two steps backwards" for criminal immigration practitioners (like myself), the Board of Immigration Appeals (Board) issued a precedential decision finding that the proper inquiry for determining whether a conviction is for an aggravated felony crime of violence under 18 U.S.C. § 16(b)  is whether the conduct encompassed by the elements of the offense presents a substantial risk that physical force may be used in the course of committing the offense in the “ordinary case.”  In so finding, the Board discarded the standard outlined by the Supreme in Moncrieffe v. Holder which instructed courts to determine what the "least culpable conduct" criminalized by a statute is, and then determine if there is a categorical match between that conduct and the generic federal definition of a crime (in this case, the definition of a crime of violence outlined in 18 U.S.C. § 16(b)).  

The problem is that the Board failed to sufficiently explain how to evaluate what the "ordinary case" of conviction is under a particular statute.  It noted that the respondent in the case had not presented any cases in which Florida has prosecuted someone for felony battery where violent force was not used, but it did not discuss whether the presentation of such a case would mean that the ordinary prosecution still involved such force.  How many cases would the respondent have to find? 5? 10? Must they be published cases? At what point does the ordinary conduct criminalized by a statute include less culpable conduct than one might imagine? 

The full test of Matter of Francisco-Alonzo can be found here: http://www.justice.gov/sites/default/files/pages/attachments/2015/06/02/3839.pdf

First Circuit Finds that Agency Applied Incorrect Standard of Review to Motion to Reopen

Alan Soares Renaut sought to reopen an in absentia removal order on the basis that he received legally insufficient notice of his hearing.  The hearing notice was sent to the address provided by Renaut (which both he and a friend residing there confirmed was his mailing address) but was returned to the court as undeliverable.  

The Immigration Judge (IJ) denied his motion, finding that Renaut was made aware of his obligation to immediately notify the Immigration Court when he changed his address and he failed to do so. The IJ then found that although the hearing notice was returned to the Court as undeliverable, it had been sent to the Respondent at his last known address. Renaut appealed to the Board of Immigration Appeals (BIA), arguing that the IJ conflated the regulatory standards that govern the entering of an in absentia removal order and the requirements to reopen one. The BIA affirmed the IJ's decision, finding that Renaut evaded delivery of a properly sent hearing notice by relocating without providing the required change of address.

On appeal to the First Circuit, the court recognized that the statute governing notice still contemplates that an individual make not receive a hearing notice, even if it is properly mailed to that person's last known address.  Thus, an individual could successfully seek reopening if he could show that he complied with the address reporting requirements but still did not receive the notice.  Even though Renaut had physically left the address he had provided the court, he and his friend living there confirmed that he continued to receive mail there (in other words, that the address provided was still his mailing address).  Thus, the agency's conclusion that he was trying to evade delivery of the notice or shirk on his responsibility to notify the court of his new mailing address was unwarranted.  

The full text of Renaut v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1766P-01A.pdf

Sixth Circuit Upholds Denial of CAT Claim and Limits Its Jurisdiction over Criminal Aliens

Jose Ventura-Reyes applied for protection under the Convention Against Torture (CAT).  He feared torture in the Dominican Republic because: (1) a politically influential Dominican family believed that he was responsible for the murder of their patriarch in the Dominican Republic; and (2) he was an informant for the U.S. Drug Enforcement Administration, allegedly resulting in the arrests of members of the drug-trafficking Gonzalez Molina family, which would seek revenge against him.  At the time of the death of the patriarch's death in the Dominican Republic, the Dominican authorities responded to the scene of the event (which involved multiple members of two families involved in a violent altercation) and intervened to end the confrontation.  Over the years following the events in the Dominican Republic, Ventura-Reyes returned to the Dominican Republic several times without ever being harmed.  His wife traveled several more times to the Dominican Republic and was never harmed.  The Immigration Judge denied his application for CAT protection, and the Board of Immigration Appeals affirmed.

On appeal, the Sixth Circuit first addressed its jurisdiction over Ventura-Reyes' case, and determined that because he was removable as a criminal alien, they had limited jurisdiction over his appeal, even though he was not charged with deportability for his criminal offenses.  Thus, the court would only have jurisdiction over constitutional claims and questions of law.  The court then affirmed the Immigration Judge's credibility determination with reference to Ventura-Reyes' witness, determined that Ventura-Reyes' challenge to an evidentiary ruling did not implicate a constitutional claim (and thus, was outside its jurisdiction to consider), and dismissed his challenge to the Immigration Judge's interpretation of the requirement of government acquiescence.  

The full text of Ventura-Reyes v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0111p-06.pdf

Eighth Circuit Dismisses Appeal of Denied Asylum Application

Jorge Roberto Barillas-Mendez applied for asylum based on the physical and economic abuse he suffered at the hands of his aunt (with whom he lived).  She beat him every other day, and kept the money that Barillas-Mendez's father sent to support him.  He was unable to tell his parents about the abuse because his aunt listened to their phone conversations.  None of the neighbors were ever alerted to the abuse and the police were never informed.  Barillas-Mendez was also beaten by a second cousin who was a member of the MS-13 gang, and who believed that Barillas-Mendez was the member of a rival gang.

The Immigration Judge (IJ) denied Barillas-Mendez’s asylum application, concluded that Barillas-Mendez’s allegations of abuse suffered in Guatemala did not establish persecution or a well-founded fear of future persecution.  In addition, the actions by private individuals (i.e. Barillas-Mendez's aunt and cousin) would not amount to persecution, and Barillas-Mendez failed to show that the government was unwilling or unable to control his aunt and cousin.  Finally, the IJ determined that Barillas-Mendez failed to show that the alleged persecution was on account of a protected ground (political opinion or membership in a particular social group).

The Board of Immigration Appeals (Board) affirmed the IJ’s determination that Barillas-Mendez had not established past persecution in Guatemala because the physical abuse he suffered did not rise to the level of harm required to constitute persecution. The Board also agreed with the IJ that Barillas-Mendez had not established a well-founded fear of future persecution based on a protected ground, but the Board did not address the IJ’s conclusion that abuse by the aunt and cousin as private individuals did not constitute persecution.

On appeal, the Eighth Circuit agreed that the Board was not compelled to find that the abuse Barillas-Mendez experienced (which resulted resulted in bruises, red marks, and a bloody mouth) rose to the level of persecution.  The fact that Barillas-Mendez was a minor when he experienced the harm did not compel the conclusion that it qualified as persecution.  

The full text of Barillas-Mendez v. Lynch can be found here: http://media.ca8.uscourts.gov/opndir/15/06/141444P.pdf

Unpublished Ninth Circuit Decision on Exceptions to the One-Year Filing Deadline for Asylum

In a brief but interesting decision, the Ninth Circuit reminded the agency of the proper standard for evaluating whether changed country conditions can justify the untimely submission of an asylum application.  Specifically, the Ninth Circuit stated that the applicant's subjective state of mind is not the only relevant factor in the analysis.  "Whether Enkhbold’s elevation from Mayor of Ulaan Bataar to Prime Minister of Mongolia was the real reason petitioners decided to file their asylum applications or just an 'after thought,' as the IJ concluded, has no role in the changed circumstances analysis.  The correct legal standard is whether changed country conditions materially affect the applicant’s eligibility for asylum.  This standard does not preclude an individual who has always feared persecution from seeking asylum because the risk of that persecution increases. . . . An applicant is not required to file for asylum when his claim appears to him to be weak; rather he may wait until circumstances change and the new facts make it substantially more likely that his claim will entitle him to relief. In such cases, we may recognize changed circumstances."  An excellent summary of what is sometimes a difficult issue to argue before the Immigration Judge - clients do not have to file for asylum the instant they have a fear of returning, but rather, can wait until events in their home country change and their asylum claims strengthen.

The full text of Tomsuren and Burentugs v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2015/05/28/11-71777.pdf

Seventh Circuit Finds that a Lawyer Provided Ineffective Assistance

Ashraf Habib was accused of gaining his lawful permanent residency through fraud.  Specifically, the Government alleged that Habib gained his residency through marriage to a US citizen, but that at the time, he was still married to a woman in Pakistan.  Habib failed to disclose his Pakistani wife or three children  on his application for residency or for his application for citizenship.  At trial, Habib's attorney denied the Government's allegation that Habib’s marriage to his deceased U.S. citizens spouse was not legally valid because not divorced from his wife in Pakistan.  His attorney, however, seemingly contradicted himself by admitting the materially identical allegation that Habib was not validly married to a United States citizen when he gained his residency.  His attorney also admitted that Habib had three children in Pakistan, but denied that Habib was removable for having committed fraud.

At the beginning of Habib's merits hearing, his attorney submitted a divorce decree which purported to show that Habib had divorced his Pakistani wife 2 years before marrying his American wife.  The attorney stated that he “believed” he previously had submitted a copy of this divorce decree to the government.  But when the government’s attorney disputed this assertion, the attorney said that he “just got it recently.”  The Immigration Judge (IJ) stated that Habib could be questioned about the divorce decree during his testimony but reserved ruling on the admissibility of the document.

Habib then testified about his marriage to his deceased U.S. citizen spouse and the reason he omitted his Pakistani wife and children from his immigration applications.  When asked about his divorce, Habib testified that he was divorced from his first wife in 1999, but the Government asserted that this was contradicted by his attorney's admission to the factual allegation about his invalid second marriage.  "In response, Habib’s lawyer mumbled something about a 'mistake' but did not move to retract the admission of [the] allegation."  

The IJ determined that Habib’s failure to disclose his children and his first marriage was material because the misrepresentation “cut off [a] line of inquiry and prevented the Government from conducting a full analysis of all factors relevant to the validity of” Habib’s second marriage.  The IJ noted that the divorce decree was an untimely submission and emphasized that Habib's attorney initially admitted that his second marriage was invalid and never sought to retract that admission.

Habib retained new counsel, appealed his case to the Board of Immigration Appeals (BIA), and moved to reopen his proceedings on account of ineffective assistance of counsel.  He claimed that he had timely provided the divorce decree to his prior attorney.  His prior attorney did not respond to these allegations, but instead, another attorney at his firm claimed that the document was not timely received by the office.  Habib denied the accuracy of this statement.  The BIA affirmed the IJ's decision and denied Habib's motion to reopen, stating that it could not conclude that Habib's prior attorney's failure to timely submit the divorce decree resulted from “deficient performance” because neither Habib nor his former lawyer specified precisely when Habib gave the divorce decree to his prior attorney.  The BIA also determined that Habib had not shown he was prejudiced by his prior attorney's admission that his second marriage was invalid because the Government submitted substantial evidence challenging the validity of that marriage and Habib had admitted during testimony that he “‘lied on purpose’ when he failed to mention his first wife and his children” in his applications.

The Seventh Circuit disagreed, finding that Habib's prior attorney's admission effectively waived Habib’s defense to removal, and an attorney’s waiver of a complete defense to removal prejudices the client.  In addition, the fact that the Government had put forward evidence that Habib had failed to disclose his first wife and children was no dispositive.  If Habib could prove that his second marriage was valid, he could demonstrate that he was still eligible for residency, despite the omissions in his application.  For this reason, his prior attorney's failure to timely submit the divorce decree was also substandard performance that prejudiced Habib's case.

The full text of Habib v. Lynch can be found here: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D05-29/C:14-3370:J:Williams:aut:T:fnOp:N:1560163:S:0

Ninth Circuit Addresses Third-Degree Child Molestation in Washington

In the context of a federal criminal case, the Ninth Circuit determined that a conviction for third-degree child molestation in Washington did not qualify as a sexual abuse of a minor aggravated felony.  To constitute sexual abuse of a minor, a conviction must contain the following four elements:  (1) a mens rea level of knowingly; (2) a sexual act; (3) with a minor between the ages of 12 and 16; and (4) an age difference of at least four years between the defendant and the minor.  Alternatively, the conviction must contain the following three elements: (1) the conduct proscribed is sexual; (2) the statute protects a minor; and (3) the statute requires abuse. 

The court concluded that the Washington statute at issue was indivisible, and was missing required elements from the second definition of sexual abuse of a minor (which was the definition at issue in the current case).  Specifically, the Washington statute criminalizes touching over clothing as opposed to the generic offense’s requirement of skin-to-skin contact.  Thus, it is missing the element of abuse required by the second definition of sexual abuse of a minor.

The full text of US v. Martinez can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/28/12-30185.pdf