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  

First Circuit Addresses and Eighth Amendment Challenge to a Removal Order

In a novel approach, a petitioner appealed his removal order on the ground that it would violate his Eighth Amendment rights, as a punishment disproportionate to his unlawful acts.  Blackman had been convicted of a drug trafficking aggravated felony, and he sought no relief from removal, but instead submitted evidence of the severe hardship his removal would cause.  Blackman indicated that he had served honorably in the United States Marine Corps for four years -- enlisting only a few months after his arrival in the United States at age twenty. He and his United States-citizen wife now have four children, and Blackman asserted that his presence in the United States is necessary to help care for their son, who was seriously injured in a 1998 car accident. Finally, though he did not apply for asylum or related humanitarian benefits, Blackman expressed fear that he would be harmed or killed by gang members if removed to Panama.

Blackman simply argued that his removal would be unconstitutional.  Specifically, in light of the Supreme Court's decision in Padilla v. Kentucky, which Blackman argued classified removal as a penalty, he argued that the Constitution mandates that an IJ, or a federal court, assess whether the sting of deportation and its accompanying reentry bar is a proportionate sanction for his underlying criminal conviction.  If it is not, he must be permitted, under the Eighth and Fifth Amendments, to remain in the United States, despite his conviction for a deportable offense.

The First Circuit began its analysis with a reminder that historically, the federal courts have considered removal to be a non-punitive, civil consequence, and thus, the Eighth Amendment is inapplicable.  The Supreme Court's decision in Padilla did not alter that.  "[T]here is a critical distinction between recognizing that a particular consequence might follow -- nearly automatically -- from a criminal conviction and classifying that consequence as a sanction intended to punish a noncitizen for that criminal activity."  For the same reason, the Fifth Amendment does not apply to Blackman's case.

The full text of Blackman Hinds v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/13-2129P-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 

USCIS Announces Temporary Protected Status for Nepalese Citizens

On June 24, 2015, The Department of Homeland Security (DHS) announced the designation of Nepal for TPS and that eligible Nepalese nationals (and people without nationality who last habitually resided in Nepal) residing in the United States may apply for TPS.

The requirements for TPS for Nepalese citizens can be found here: http://www.uscis.gov/humanitarian/temporary-protected-status-deferred-enforced-departure/temporary-protected-status-designated-country-nepal

Appointment to the ABA Immigration & Naturalization Committee Steering Group

I'm pleased to announce that I have been named to the steering group of the American Bar Association's (ABA) Immigration and Naturalization Committee for 2015-2016.  This, along with my continued leadership role as the Vice-Chair of the Newsletter Committee for the Young Lawyers Interest Network of the ABA International Law Section, my appointment to the Executive Committee of the Immigration Section of the Los Angeles County Bar Association, and my appointment to the American Immigration Lawyers Association's Pro Bono Committee will certainly keep me busy, and will provide me with terrific opportunities to work my terrific colleagues on pressing immigration issues nationwide.  

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

Fourth Circuit Denies Suppression Motion

In a case of first impression for the circuit, the Fourth Circuit determined that the exclusionary rule should apply in immigration proceedings where the non-citizen can show an egregious violation of the Fourth Amendment by government officials.  The court defined an egregious violation as: (1) a violation of the Fourth Amendment that transgresses notions of fundamental fairness; or (2) a violation of the Fourth Amendment that, regardless of the violation’s unfairness, undermines the probative value of the challenged evidence.  

The court adopted the "totality of the circumstances" test (already employed by the Second, Third, and Eighth Circuits) for evaluating whether a Fourth Amendment violation is egregious.  Factors to be considered under this test include (but are not limited to): (1) whether the Fourth Amendment violation was intentional; (2) whether the violation was unreasonable in addition to being illegal; (3) whether there were threats, coercion, physical abuse, promises, or an unreasonable show of force by the law enforcement officers; (4) whether there was no articulable suspicion for the search or seizure whatsoever; (5) where, when, and how the search, seizure or questioning took place; (6) whether the search, seizure, or questioning was particularly lengthy; (7) whether the law enforcement officers procured an arrest or search warrant; (8) any unique characteristics of the alien involved; and (9) whether the violation was based on racial considerations. 

Those of us who litigate in the Ninth Circuit will surprised to know that we've got it easy: "The Ninth Circuit’s approach requires a suppression hearing any time an alien alleges that the law enforcement officers acted in bad faith.  This sets the evidentiary proffer bar too low." 

In the instant case, the non-citizen alleged three Fourth Amendment violations: (1) the search warrant was invalid because it identified the premises as a single-family home when it was, in fact, a multi-unit dwelling; (2) once the agents entered the [remises, they should have realized that the Premises was a multi-unit dwelling, and, at that point, they should have stopped the search immediately because the warrant was overbroad; (3) the ICE agents were required to list her as an item to be seized in the warrant.  The Fourth Circuit determined that these allegations did "not make out a constitutional violation, let alone an egregious one."  

The non-citizen also alleged that the warrant only allowed the search to be performed between 10 am and 6 pm, but the officers executed the warrant at 5 am.  The court concluded that "the nighttime execution of a daytime warrant violates the Fourth Amendment, absent consent or exigent circumstances."  Despite finding that the officers violated the Fourth Amendment by executing the warrant before 6 am, the court found that the presence of a valid search warrant supported by probable cause negated the severity of the violation.  "If law enforcement officers do not attempt to secure a valid warrant supported by a magistrate judge’s probable cause finding . . . their conduct is more egregious than law enforcement officers who take the time to prepare a valid warrant and present it to a magistrate judge for a probable cause finding.  In the latter case, the law enforcement officers’ conduct is less offensive--they have sought and received authorization for a privacy interest invasion--while in the former case, the law enforcement officers’ conduct borders on abhorrent, which renders the intrusion more severe and, hence, egregious."

Finally, the non-citizen argued "that her statements to the ICE agents were involuntary and, thus, were used against her in violation of her rights under the Due Process Clause of the Fifth Amendment."  The court concluded that she "did not submit evidence of promises, prolonged questioning, interference with her right to counsel, or other indicia of coercion or duress that might suggest that her statements were involuntary, and she was never handcuffed during the entire episode," and thus, she had not established a violation of her right to due process. 

The decision contains a very thorough historical analysis of the caselaw addressing suppression in an immigration context (including case law from several different circuits), and is worth the read for any attorney wanting to refresh their knowledge on the topic.

The very long (92 pages!) decision in Yanez-Marquez v. Lynch can be found here: http://www.ca4.uscourts.gov/Opinions/Published/131605.P.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

Ninth Circuit Applies the Modified Categorical Approach to Find a Respondent was Convicted of an Aggravated Felony

In 2009, California filed an Information charging Ruiz-Vidal with sale and possession for sale of a controlled substance, which the Information identified as methamphetamine. Ruiz-Vidal pleaded no contest to simple possession—a lesser included offense of the sale charge.  Because the original complaint did not contain a charge for simple possession, Ruiz-Vidal argued that the record of conviction did not establish what substance was involved in his conviction, and thus, under the modified categorical approach, he was not removable for the conviction.  

The Ninth Circuit disagreed, finding that because Ruiz-Vidal specifically pled to a lesser included offense of Count 1 (the sale and possession of methamphetamine charge), the Court could consider the substance identified in Count 1 under the modified categorical approach.  "California defines a lesser included offense as: '[w]here an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'  California courts determine whether an offense is necessarily included by reviewing whether the facts actually alleged in the accusatory pleading include all the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser offense."  Moreover, "because possession of each different drug under California Health and Safety Code § 11377(a) constitutes an entirely separate offense, the indictment charged him with the specific offense of sale of methamphetamine, not sale of a controlled substance.  A conviction for possession of any other drug couldn’t be a lesser included offense to sale of methamphetamine."  Finally, the court noted that "[d]uring the colloquy, the judge specifically asked Ruiz-Vidal whether there was a factual basis for a conviction under the possession offense 'lesser included to count 1.'"  This, the court determined, provided the necessary link between the substance listed in count 1 and Ruiz-Vidal's conviction.

Unclear from the decision is how a simple possession conviction can be properly characterized as an aggravated felony.  Crimmigration nerds across the country (or at least one in Los Angeles) are dying to know.

The full text of Ruiz-Vidal v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/17/11-73433.pdf

BIA Protects the Rights of Returning Lawful Permanent Residents

In a short but excellent decision, the Board of Immigration Appeals addressed a scenario that has plagued immigration practitioners for years.  Who bears the burden of proving removability when a person has been granted lawful permanent residence and returns from a trip abroad, but the Department of Homeland Security (DHS) alleges that they were never entitled to residency in the first place? In that case, may the DHS charge the returning resident with inadmissibility, even if he does not fit into the narrow grounds listed in section 101(a)(13)(C) of the INA? No - it cannot.  A returning resident who does not fall into these narrow grounds can only be charged with deportability, not inadmissibility.  This is important, because the DHS bears the burden of proving deportability, while a noncitizen bears the burden of proving admissibility.

The full text of Matter of Pena can be found here: http://www.justice.gov/eoir/file/478111/download

AILA Conference 2015

I've been a bit behind in my journal posts because I've been in Maryland for 5 days attending the annual American Immigration Lawyers Association conference.  I had the chance to see old friends, learn about updates in immigration law and practice, and meet new colleagues from all over the world.  It was a fantastic opportunity to brainstorm cases with colleagues.  I had a fantastic amount of fun, but I now face the task of catching up on at least half a dozen cases that came out while I was gone.

Stay tuned for some updates!

We're Expanding!

I'm pleased to announce that as of May 26, 2015, I have been admitted to practice before the United States Supreme Court.  Our nation's highest court has recently taken a more active interest in immigration law.  As such, I have decided to expand my practice to include writs of certiorari to the Supreme Court.  Drawing on my expertise in immigration law, I hope to give my clients one more opportunity to have their cases heard and to have their rights vindicated.