Sunday, November 23, 2014

Not with a Bang But with a Whimper: Incomprehensive Immigration Reform is Issued

by Anish Vashistha

In case you did not hear, U.S. President Barack Obama announced last Thursday evening a series of Executive Actions relating to Immigration:
U.S. President Barack Obama, November 20, 2014

Moreover, it appears that Comprehensive Immigration Reform ("CIR") is more about politics and not so much policy as shown by the below discussion on Meet the Press relating to how Republicans and Democrats respond to the same proposal on the issue based on the political party that is in the White House:
NBC's Meet the Press, November 23, 2014

For that reason, and although I am no fortune teller, I do not believe that the reforms that the President instituted will evaporate should a Republican be elected in 2016 to the presidency.  The U.S. may be polarized politically but is still not anti-immigrant, so the political issue, is simply based on who can take credit for CIR.  Also, while I have still not taken a position as to whether the President's Executive Actions are good for the country, something I would do only after seeing how they are actually executed, I do want to point out the flaw in the argument that they amount to selective enforcement and consequently are bad.

The flaw is not simply the response that all laws are selectively enforced, e.g., every time that one commits a traffic violation and is not cited for it s/he is a beneficiary of selective enforcement, but is rather the misperception that specifically the Immigration Laws were not selectively enforced previously.  Targeting  foreign nationals that are the easiest to apprehend for removal, namely, those with families, steady employment, and other ties to the community, i.e., people who are loyal to something other than to themselves, rather than the most dangerous or egregious immigration-law violators such as violent criminals is a form of selective enforcement as well and has largely been the approach to enforcement of the Immigration Laws for most of the last several years.  A reapportionment of available enforcement resources, as the President has proposed, does not imply that the preexisting status quo also was not a conscious apportionment of those same resources.  The wisdom of apportionment decisions should be reviewed frequently with necessary changes instituted intermittently.

Of course, this argument will likely be lost on many, and the debate will continue to focus on the President's power rather than on how such finite resources should properly be apportioned.  As I stated last week, I believe neither of these concerns deal with the actual issue underlying CIR, but I do not believe anyone other than me is interested in having that discussion.  Instead, most of my readers are probably interested in learning how one can benefit from the newly announced Executive Actions.  The links in the previous sentence should provide the most up-to-date information regarding eligibility.

One of the other interesting elements, and quite possibly yet another controversial decision, within the President's Executive Actions is the ending of the Secure Communities program.  The program has already recently led to several counties' ending their agreements with Immigration and Customs Enforcement ("ICE"), a sub-agency of the U.S. Department of Homeland Security ("DHS"), because of the potential financial liability cooperating counties face for holding criminal inmates beyond their respective criminal sentences.  The ending of the program may also be a way of protecting from financial liability ICE's own employees, a federal lawsuit against two of whom the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, found last month in Mendia v. Garcia is permitted to move forward.

That was not the only decision that was issued in October 2014 by the Ninth Circuit and that sided with a foreign national.  In Aragon-Salazar v. Holder, the Ninth Circuit held that the seven-year period or required good moral character regarding an application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act ("NACARA") ends on the date the application was filed and therefore does not permit inclusion within the relevant analysis of any facts that arise after such filing but before adjudication of a relevant application.

Also, returning to Medina-Lara v. Holder, a case about which I have written previously, the Ninth Circuit withdrew its September 2014 decision and issued a new opinion that has the same result as the prior decision, thereby reaffirming that a drug-related conviction that does not list the name of the drug involved cannot be used to support removability.

The October 2014 immigration-related Ninth-Circuit decisions were not all positive for foreign nationals.  For instance, in Hernandez de Martinez v. Holder, the Ninth Circuit unsurprisingly found that a conviction for criminal impersonation by assuming a false identity with intent to defraud is categorically a Crime Involving Moral Turpitude, thereby rendering the Mexican woman in that case ineligible for an application for cancellation of removal.  The case follows the pattern, which was interrupted only recently within the last couple of years, of foreign nationals' suffering from the language of the statute under which they were convicted rather than from the actual activity in which they engaged.  Similarly, in Espino-Castillo v. Holder, the Ninth Circuit clarified that a conviction that includes fraud as a necessary element of the underlying crime is categorically a Crime Involving Moral Turpitude.

Finally, the Ninth Circuit in Padilla-Martinez v. Holder gave the BIA and DHS wide latitude to provide ICE an opportunity to prove a controlled-substance-trafficking Aggravated-Felony allegation against a Mexican man.  Such latitude afforded the BIA and DHS in Padilla-Martinez and the lack of latitude afforded them in Medina-Lara seem to form the bookends of this issue.

On the contrary, the bookends in the CIR debate are not as clear, but until the debate actually happens, we simply will not know what they are.

Monday, November 17, 2014

Immigration Debate Heats Up as President Moves Toward Announcing Comprehensive Immigration Reform

by Anish Vashistha

Comprehensive Immigration Reform ("CIR") for the longest time appeared simply to be a dream, but U.S. President Barack Obama is extremely close to announcing some form of it soon.  The fact that the crossings by unaccompanied minors have declined, something that I previously predicted, should give the President some momentum and may vindicate him for not announcing his plans sooner.  Nevertheless, the President's prospective announcement of executive action regarding CIR seems to be exactly the pretext the Republicans in the U.S. Congress need to substantiate their opposition to CIR, as NBC's Chris Matthews discusses below:
NBC's Meet the Press, November 16, 2014

I believe the real debate underlying CIR concerns the shifting demographics of the U.S. and the unwillingness, whether justified or unjustified, of the racially dominant group(s) in the U.S. to relinquish their political power.  It is a debate I believe is worth having, but one that I feel will not occur, so the superficial nature of the conversation, e.g., border security, enforcement, etc., bores me.

What does not bore me however are the published decisions in the month of September 2014 by the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States.

First, in Roman-Suaste v. Holder, the Ninth Circuit unsurprisingly concluded that a California conviction for possession of a controlled substance for sale is categorically an Aggravated Felony under U.S. Immigration Law, thereby barring the Mexican man in that case from all forms of discretionary relief. 

Nonetheless, in Medina-Lara v. Holder, the Ninth Circuit not only saved from deportation a different Mexican man who had also been convicted of possession for sale but also refused to give another opportunity to the U.S. Department of Homeland Security ("DHS") to meet its burden of proof.  The difference between Medina-Lara and Roman-Suaste was the inability of DHS to prove what actual drug the foreign national was possessing to sell in Medina-Lara.  That inability makes all the difference in whether a foreign national is removable without eligibility for any form of discretionary relief or a foreign national is not removable at all.

Returning to USA v. Aguilera-Rios, a case about which I have previously written, the Ninth Circuit issued a superseding amended opinion clarifying that a Mexican man had not waived his right to raise an argument only after his illegal-reentry criminal conviction was already issued against him and that such argument correctly showed that the man's underlying removal order was defective, thereby rendering his conviction for illegal reentry after removal defective.

Not to be so easily typecast as taking certain determinations out of the hands of the BIA and immigration judges, the Ninth Circuit in Torres-Valdivias v. Holder maintained that it does not have the authority to review the discretionary determination of whether a certain conviction, even if in and of itself does not trigger a statutory bar to a discretionary form of relief, nevertheless requires a foreign national to meet a higher standard to be granted such discretionary relief.

Moving on, the Ninth Circuit in Sandoval-Gomez v. Holder found that a Mexican man who had been convicted of attempted arson in California was correctly determined to have been convicted under the modified categorical approach of an Aggravated Felony under U.S. Immigration Law.

In a different type of case relating to whether or not a Guatemalan woman had been properly apprised of her removal proceedings when a U.S. Immigration Officer had typed an incorrect address on the Notice to Appear issued to her personally, the Ninth Circuit held in Velasquez-Escovar v. Holder that DHS had failed to give proper notice to the woman.  The case is notable for the below conclusion by the Ninth Circuit:

Although we hold that Velasquez was entitled to notice, we understand why the [Immigration Judge], the BIA, and [DHS] pressed the opposite result.  What makes that result so attractive is that it would have been so easy for Velasquez to notice the error on the NTA and so easy for her to correct it.  A little diligence and common sense on her part could have avoided this appeal.  But neither diligence nor common sense are notice.  Notice is notice.  And, under the circumstances here, Velasquez was entitled to notice.

What the Ninth Circuit avoids discussing is the likelihood of the woman's purposely avoiding correcting her address with the intent of evading notice, but that discussion is buried under pretextual arguments with the Ninth Circuit only referencing common sense as dicta.  This seems as good of a time as any for some common sense to be exercised in Washington, DC regarding CIR, but as with Velasquez-Escovar, the real debate is being buried under pretext.

Monday, November 10, 2014

No Hope But Lots of Change: Moving Forward on Immigration Reform with Republican Majorities in Both Chambers of Congress

by Anish Vashistha

The election was less than a week ago, and already many are trying to use the results to argue that Comprehensive Immigration Reform ("CIR") now has a real chance of being passed because Republicans will be able to take credit for it. Despite such optimism, the contrary argument made by Raphael Sonenshein in the final two-and-a-half minutes of the below video is more likely the reality:
NBC's News Conference, November 9, 2014 (start watching from the 8:17 mark)

Indeed, while President Barack Obama is still taking the position that he will implement CIR via executive order, the Republicans in the U.S. Congress continue to state that such unilateral action by the President will have severe political consequences.  The President's taking executive action before the end of this year may not appear as a rush because CIR has been debated for years, but the move will nonetheless appear hasty in light of an incoming Republican majority early next year.

Also rushed will be the below rundown of some of the latest published decisions by the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States.

First, in Nguyen v. Holder, the Ninth Circuit in August of this year found that a Vietnamese man did commit what is termed a Crime Involving Moral Turpitude when he misused a passport to facilitate international terrorism but nevertheless ordered the BIA to grant him deferral of removal under the Convention Against Torture because of the likelihood of his being tortured by the Vietnamese government upon his deportation.

Also in August of this year, the Ninth Circuit in Brown v. Holder found that an Indian man has a Constitutional right to U.S. citizenship as a means of avoiding deportation if he could show that the former Immigration and Naturalization Services ("INS") either arbitrarily and intentionally obstructed his naturalization application or that INS was deliberately indifferent to whether his application was processed.

Remaining in August of this year, the Ninth Circuit held in Lai v. Holder that a Chinese man's raising of information, which was not inconsistent to information he previously provided, for the first time only during cross-examination regarding his asylum application could not be subjected to an adverse credibility finding.

Finally, and finishing off the cases for August 2014 and thereby leaving subsequent cases to subsequent posts, the Ninth Circuit held in Singh v. Holder that being persecuted for multiple reasons, some of which may not be for protected grounds while others are for protected grounds, does not render one ineligible for asylum provided that at least one protected ground formed at least one central reason for the persecution.

Please forgive the rush, but as with the President, I am trying to catch up before the end of the year.

Sunday, October 19, 2014

Summer of Discontent: Reversing Course in Immigration Policy and Immigration Law

by Anish Vashistha

It's been three months since my last post because I was hoping to have some big news to present before writing again. However, unfortunately, the only big news is that there is no big news and here's how the President laid out why not:

NBC's Meet the Press, September 7, 2014

The President has not been the only one who has been backpedaling but trying to justify the reversal. Since my last posting, there have been a few similar cases of wavering but instead by the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States.

First, in Juarez Alvarado v. Holder, the Ninth Circuit in July of this year refused to review a Mexican man's unexhausted argument relating to overbreadth of a State controlled-substances statute and found that the man's conviction amounted to an immigration-related controlled-substances violation despite the State statute listing more controlled substances than found on the federal controlled-substances schedules. Instead of dealing with the specific and tough issue of whether the State statute under which the man was convicted should be found to criminalize more behavior than what federal immigration law deems a violation, the Ninth Circuit found a way to avoid it altogether by arguing that the man did not raise the issue first before the BIA, which last month took matters into its own hands by holding in the separate case of Matter of Ferreira that in such situations there must be a realistic probability that one actually could be prosecuted under a State controlled-substances statute for engaging in activity relating to the very controlled substances that are listed in the State statute but not within the federal schedules. This "realistic probably" requirement interpreted by the BIA to be a part of the necessary analysis unfortunately places more of a burden on a foreign national who is contesting removability.

Also in July of this year, the Ninth Circuit held in U.S. v. Valdez Novoa that a Mexican man could not avoid being prosecuted for illegal reentry after deportation based on an alleged due-process violation in his underlying removal proceedings because such allegation was found by Ninth Circuit not to be true. That alleged violation was based on the subsequent reversal of a case decision on which the relevant immigration judge relied in ruling that the man's prior criminal conviction was an Aggravated Felony and consequently that he should be removed from the U.S. The Ninth Circuit found that the relevant immigration judge did not violate the man's right to due process because the immigration judge's reliance on the case law that existed at the time of his ruling was reasonable. It is questionable how someone's removal order could be found valid if the very analysis on which it is based has subsequently been overturned, but the Ninth Circuit probably was trying to avoid establishing a rule that would permit possibly thousands of deported individuals who have illegally reentered the U.S. to avoid prosecution.

Moving to August of this year, the Ninth Circuit ruled in U.S. v. Hernandez-Arias, a case in which there has been a previous ruling and about which I had previously written because of my concern on the possibility for a slippery slope, held that its prior decision, which many would argue is unjustified, still stands but only in the specific context of someone having been granted temporary-resident status.

While there have been several more cases since my last posting, and I will get to them in my coming postings, the ones discussed above show that reversing course relating to immigration is something that can be done by both the executive and the judicial branches of government and just as (in)artfully.

Sunday, July 20, 2014

Tug of War: Using Any Event to Back One's Position on Comprehensive Immigration Reform

by Anish Vashistha

It has been more than a month since my last post, but the debate on Comprehensive Immigration Reform ("CIR") has continued, albeit with a certain twist pertaining to the tens of thousands of unaccompanied minors from Guatemala, El Salvador, and Honduras. Here is what Jeh Johnson, Secretary of the U.S. Department of Homeland Security ("DHS"), had to say about the subject a couple of weeks ago:

NBC's Meet the Press, July 6, 2014

Here's what Republican Congressman Raul Labrador said in response:
NBC's Meet the Press, July 6, 2014 

Here's how various political observers view the CIR debate in relation to the issue of unaccompanied minors:
NBC's Meet the Press, July 6, 2014

Both sides appear to be using the unaccompanied-minors issue to support their respective positions regarding CIR, and the political observers are following suit.

I believe for three reasons that CIR is unrelated to the recent tremendous increase of unaccompanied minors attempting to enter the U.S. First, despite the large supply, there is simply no demand for unaccompanied minors in particular as there is for the type of labor force in general that CIR would assist the U.S. in acquiring. Second, the unaccompanied-minors issue can be handled quickly and effectively once it is proven that one cannot obtain a permanent home in the U.S. simply by making the journey to the U.S. Of course, proving such a reality would require expediting the process for disposing of the unaccompanied minors' cases. While there are options for unaccompanied minors to obtain permanent lawful status in the U.S., such as asylum and special-immigrant-juvenile ("SIJ") status, such options have strict eligibility requirements that many of the recent unaccompanied minors simply will not be able or even be willing to prove. Third, and related to the first two reasons, there simply is no policy that would be supported by allowing otherwise ineligible unaccompanied minors to remain permanently in the U.S. While family unification is a U.S.-immigration-related policy, such a policy does not support the unification within the U.S. of members of a family in which all are undocumented. CIR presumably would help such individuals but only if they could prove that they had entered the U.S. by a certain date that has long since passed. It likely would not help the recent spate of unaccompanied minors.

If compassion is the sole basis for one's claim that the unaccompanied minors should be permitted to remain permanently in the U.S., then such compassion should be expressed in two ways: (1) assisting in changing the environment in the countries from which the unaccompanied minors traveled so that their obstacle-ridden migration is no longer, at least in their and their parents' minds, required and (2) allowing for effective legal representation for such unaccompanied minors so that they may use the system in place, rather than attempting to override it, to accomplish their goal of obtaining a permanent home in the U.S.

However, regarding the second way, as shown by recent immigration-related decisions, even effective legal representation is not enough to obtain a favorable outcome. For instance, and related to the issue of minors, the U.S. Supreme Court in Scialabba v. Cuellar de Osorio sided last month with DHS in holding that immigrant-petition derivative beneficiaries, e.g., the children of foreign nationals who have had filed for them an immigrant petition that would automatically include their children, who are unable to accompany their immigrating parents because they have aged out, i.e., reached twenty-one years of age for immigration purposes prior to being permitted to apply for adjustment of status or an immigrant visa, due to years-long quota-based wait times cannot maintain the same filing date, otherwise known as priority date, as the original petitions filed for their parents after their parents, who have successfully lawfully immigrated, subsequently file petitions for them, resulting in yet another years-long quota-based wait for the aged-out derivative beneficiaries.

Also last month, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, ruled in Jiang v. Holder that an immigration judge's adverse-credibility finding relating to an asylum applicant was justified given the Chinese-national applicant's not raising in her testimony only until prompted by her attorney the physical abuse that she suffered in detention in China and that made up a substantial portion of her claim as outlined in her previously submitted declaration.

Moreover, the Ninth Circuit ruled this month in Bojnoordi v. Holder that the terrorism bar to asylum applies retroactively, thereby including activity that occurred even prior to the official designation of a certain group as a terrorist organization. Also this month, the Ninth Circuit held in Coronado v. Holder that a California methamphetamine-possession conviction could be used to establish a controlled-substances-related ground for removability because California's controlled-substances-possession statutory criminal offense is not overbroad but rather divisible.

However, and in what appears as a contradiction to Coronado, at least one recent case shows that effective legal representation does make a difference. In USA v. Aguilera-Rios, the Ninth Circuit reversed a Mexican man's conviction for illegal reentry because his prior removal was unlawfully based on a California firearms-possession conviction that the Ninth Circuit ruled could not be an immigration-related aggravated felony because California's firearms-possession statutory criminal offense was indeed overbroad for not having an antique-firearms exception as found in the generic federal firearms-possession statutory criminal offense.

The confusion over whether one's state conviction is under an overbroad statute as opposed to a divisible statute is part of the reason why CIR is required because it represents an uncertain legal issue that the courts have simply been unable to clarify. The tens of thousands of unaccompanied minors who have recently sought a permanent refuge in the U.S. is neither a reason to support CIR nor a reason to oppose CIR. It may be an enforcement-related- or resources-related issue, but the law now in existence provides a clear avenue for disposing of such cases. Using the unaccompanied-minors issue as a tool in the overall CIR debate is a distraction in the continuing tug-of-war that is CIR.

Saturday, June 7, 2014

Shift Continues Toward More Liberal Deportation and Detention Policies

by Anish Vashistha

There have not been many immigration-related published decisions recently, but that has not kept the topic of Immigration Law out of the news. The Los Angeles Times reports that the U.S. Department of Homeland Security ("DHS") will continue its policy of providing a removal reprieve and work authorization to immigrant childhood arrivals. The continuation of DHS's Deferred Action for Childhood Arrivals program ("DACA") shows its commitment to protecting those individuals who were brought to the U.S. involuntarily but likely know no other home. However, the program remains controversial because it is not the product of a change in the law, such as the proposed DREAM Act would have been, but instead is the result in a shift in enforcement priorities.

This shift toward more liberal enforcement priorities is not limited to the federal government. The Los Angeles Times is also reporting on how several Southern California counties, including Los Angeles, San Diego, Riverside, and San Bernardino but not Orange and Kern, despite nevertheless being bound by the Trust Act, are no longer complying with DHS's forty-eight-hour post-criminal-custody detainer requests ("ICE Holds"). DHS uses the ICE Holds to enable it to apprehend undocumented foreign nationals easily because they are already being held in custody but local law-enforcement authorities. Although as of yesterday the change in policy does not appear to have yet taken root at least in Los Angeles County, its prospective execution is officially not based on political concerns but rather on liability concerns. With more and more communities' refusing to comply with ICE Holds, DHS will have to find alternative methods for apprehending undocumented foreign nationals.

Monday, May 26, 2014

Not Erring on the Side of Caution: Court Uses Country-Conditions-Report Ambiguity to Shut Down a Popular Basis for Asylum Relief


by Anish Vashistha

In proceedings before any of the various immigration courts nationwide, asylum seekers may establish the requisite “well-founded” fear of return to their respective home countries by showing that they have been persecuted there in the past. Once past persecution has been proven, a presumption exists that the asylum seeker will be persecuted in the future, but such presumption is rebuttable, meaning the U.S. Department of Homeland Security (“DHS”) may persuade the relevant immigration judge that conditions in the asylum seeker’s home country have changed significantly enough that the s/he no longer has a well-founded fear of future persecution.

Oftentimes overcoming the presumption can be difficult for DHS if the asylum seeker reports that the threat(s) s/he fears still exist and the relevant published annual country-conditions reports are contradictory or otherwise unclear as to whether such is the case. This ambiguity frequently causes an immigration judge to err on the side of caution and find that the presumption of fear has not been rebutted by DHS. For example, Indian Sikhs, who comprise a religious minority within that country and who have had a history of being persecuted there on account of an independence movement that was popular in the 1980s and 1990s but not so much currently, continued to receive asylum in the U.S. for decades after the movement’s dying down because of their actual or perceived participation in such movement years earlier.

However, the reliance by immigration judges on ambiguity, at least in annual country-conditions reports relating to India’s Sikhs, to find that the presumption of future persecution has not been rebutted may no longer be acceptable. The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, held last week in Singh v. Holder wherein the Ninth Circuit held that the presence of ambiguity in such reports does not automatically favor the asylum seeker. Instead, the Ninth Circuit clarified that a balancing of the contradictions must be completed in a manner that relates individually to the asylum seeker.

For the specific asylum seeker in the case, the Ninth Circuit found that the relevant immigration judge and thereafter the BIA conducted the necessary balancing in an appropriate way and upheld the denial of the application. The case may mark the end of asylum applications based on the Sikh independence movement in India, requiring a different approach to resolving the immigration matters of those effected.

Sunday, May 18, 2014

The Ninth Circuit Continues Issuing Decisions That Change How Asylum Applications are Adjudicated


The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, issued a tremendously pro-foreign-national decision recently in Chandra v. Holder wherein the Ninth Circuit held that an otherwise untimely motion to reopen one's removal proceedings could nevertheless be considered on its merits based on the changed-country-conditions asylum-related exception even if the alleged change in country conditions is related to a change in the foreign national's personal circumstances.

The case concerned an Indonesian man who after being ordered removed in 2005 converted to Christianity and argued about four years later that his conversion combined with the increase in persecution of Christians in Indonesia rendered timely his 2009 motion to reopen. Such motions to reopen previously were routinely denied by the BIA on the basis that a change in a foreign national's personal circumstances, regardless of whatever changes that may have occurred in that foreign national's home country, may not render that foreign national eligible to apply for asylum if s/he has a final order of removal and did not raise the application within ninety days of such order. In issuing its decision though, the Ninth Circuit pointed out that such a motion to reopen will not be meritorious if it relies solely on a change in a foreign national's personal circumstances without showing any relevant changes within that foreign national's home country. It will be interesting to see whether this change results in more opportunities for legitimate claims to be raised or more chances for foreign nationals to prolong their stay in the U.S. based on orchestrated claims.

All of the Ninth Circuit's other immigration-related published decisions within the last couple of weeks also concerned asylum-related issues. For instance, in Zhi v. Holder, the Ninth Circuit clarified that the BIA may not rely on a reconciled discrepancy to make an adverse credibility determination regarding an asylum application.

Moreover, in Pirir-Boc v. Holder, yet another decision concerning social-group recognition of those who oppose gang recruitment in the Central-American countries of Guatemala, El Salvador, and Honduras, the Ninth Circuit remanded a case because the BIA did not conduct the necessary social-group-recognition analysis when it reversed a Guatemalan man's grant of asylum.

Finally, in Konou v. Holder, the Ninth Circuit held that a sentence enhancement could be taken into account in determining whether an asylum applicant's conviction that is otherwise found not to be for an "Aggravated Felony," which could bar him/her from asylum and withholding of removal, could be found to be for a "Particularly Serious Crime," which also would bar him/her from asylum and withholding of removal. The case, which concerned a homosexual man from the Marshall Islands, is also interesting because it upheld a denial of relief under the Convention Against Torture because although homosexuality is against the law in the Marshall Islands, country-conditions-related evidence showed that such law is not enforced there.

The immigration-related cases published by the Ninth Circuit during the last couple of weeks show once again that asylum-related issues in the U.S. are quite complex, and that skilled legal advice is oftentimes necessary to be successful with such an application.

Monday, May 5, 2014

Other than Denial, Few Options Left for Illegal Reentrants and Aggravated Felons


The shift in appropriation by the U.S. Department of Homeland Security ("DHS") of removal-related resources toward those who have severe criminal histories appears to have become reality. This shift as well as other nuances relating to U.S. Immigration Law was discussed yesterday by former Secretary of Homeland Security Janet Napolitano:

NBC News Conference, May 4, 2014

The federal courts have followed this shift as well, and three recent decisions show such a path. The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from decisions by U.S. District Courts within the Western States as well as petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within those same Western States, held in U.S. v. Ruiz-Lopez that a Mexican man could be federally convicted of the crime of illegal reentry, which requires that the defendant's alienage be proven, based on a previous sworn statement alleged to have been taken by an Immigration officer. While such statements are commonly used in removal proceedings before an immigration judge, it was unclear whether they could be used conclusively to prove alienage in federal criminal proceedings, which have more restrictive evidentiary rules.

Moreover, in U.S. v. Gomez, a case about which I have previously written, the Ninth Circuit threw out its previous decision but nevertheless held once again that a Mexican man's procedurally defective prior removal did not prejudice him, thereby permitting him to be convicted of illegal reentry. The decision shows that egregious errors in the conducting of removal proceedings may continue to take place without any recourse for the affected foreign national.

Finally, in Ragasa v. Holder, the Ninth Circuit rejected the claim of a Filipino man convicted of attempted promoting of a dangerous drug that he was a U.S. citizen by way of his adoption when he was a minor by two U.S. citizens. The claim was creative in that, for the most part, U.S. Immigration Law treats lawfully adopted children the same as biological children provided certain requirements are met and in that biological children of U.S. citizens are commonly legally U.S. citizens as well regardless of the location of birth. Despite denying the man's citizenship claim, the Ninth Circuit nonetheless granted his petition for review and threw out the man's removal order based on the man's conviction's not being for an aggravated felony.

Therefore, and in yet another example of what many perceive as the twisted nature of U.S. Immigration Law, it appears the best strategy for many individuals convicted of serious crimes is simply to argue that the alleged crimes really are not that serious.

Sunday, April 20, 2014

Being Kept Out v. Being Trapped In: Enforcing the Immigration Laws in the Absence of Comprehensive Immigration Reform


This past week saw some activity on the issue of Comprehensive Immigration Reform ("CIR") but not on its passage. Instead, it appears that life without CIR is an idea that is becoming acceptable to those who previously championed it. The lack of a final resolution is the primary problem with the U.S. President and the U.S. Courts attempting to resolve immigration-related issues without participation by the U.S. Congress.

For example, news came out a few days ago that, largely due to a recent surge in the number of arriving aliens seeking protection here, U.S. Citizenship and Immigration Services ("USCIS"), which is a component of the U.S. Department of Homeland Security ("DHS") and which is responsible for conducting credible- and reasonable-fear interviews of those who arrive at a land, air, or sea port of entry to the U.S. and who claim to have a fear of returning to their home countries, will make it more difficult for such asylum seekers to establish the requisite fear that would permit them to pursue such fear-based applications formally. The result, other than more attempted unlawful entries, will be more people being returned to their home countries without the opportunity even to have their applications heard by an immigration judge. One hopes, particularly due to the lack of passage of CIR by the U.S. Congress, that this new level of discretion is exercised by USCIS officers in a uniform and fair manner.

Turning to the federal courts, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, held in He v. Holder that a Chinese man's compliance with the consequences of not abiding by China's one-child policy and, relatedly, his not being persecuted on account of his not abiding by it led to a finding that he did not have a well-founded fear of persecution should he be returned to China. While such a finding appears to be consistent with the shift in the USCIS policy toward making it more difficult for asylum seekers to establish the requisite fear required to be permitted to pursue asylum, the likelihood that the Chinese man in He will actually be deported any time soon is low. Instead, he has a high probability of simply remaining in the U.S. without authorization, trapped due to his unlawful status combined with his unwillingness to leave. The continuing presence in the U.S. of individuals with final removal orders that have already received federal-court review causes the entire immigration-related apparatus to appear impotent. However, without the passage of CIR by the U.S. Congress, this appearance will simply continue to exist.

The lack of resolution caused by the continued unwillingness of the U.S. Congress to pass CIR will only increase the fairness gap. Nevertheless, there are still some who keep fighting for CIR such as the young lady who last week revealed her undocumented status to former Senator Hillary Clinton:

CNN.com, April 17, 2014

Wednesday, April 16, 2014

As Usual, Court Holds Credibility is Key in Asylum Cases


Oftentimes foreign nationals seeking an attorney to assist in preparing and filing an asylum application worry about the perceived lack of evidence to support their claims. What such foreign nationals typically fail to realize is the overarching importance of their own testimony as a form of evidence. A tall stack of documents could potentially be of no value if the asylum applicant's credibility is in question.

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, reaffirmed this idea of the paramountcy of credibility in asylum applications. Issued on April 14, 2014, Jin v. Holder concerned a Chinese man who had applied for asylum in the U.S. based on his fear of being persecuted in his home country on account of his practice of Christianity.

However, after changing venue twice, once from California to Arizona and then from Arizona to Nevada, the man revealed during a hearing before the Las Vegas Immigration Court that the opportunity for a friendlier judge probably played more of a role in his seeking a change of venue than did his alleged changes of address.  While it is true that dramatic fluctuations among immigration courts and among immigration judges do exist regarding asylum-application approval rates, one's seeking a location for his/her immigration-court proceedings based on that location's track record for approving asylum applications is not permissible regardless of whether perceived as a reasonable strategy. Similarly, the man admitted that a certificate he had submitted to the Las Vegas Immigration Court from a church in Las Vegas, Nevada was not legitimate because he had not been attending that church given that he was residing in California.

Unsurprisingly, the immigration judge denied the man's asylum application, citing an adverse credibility determination, and the BIA upheld that determination on appeal. The Ninth Circuit found that substantial evidence supported the BIA's affirmation of the immigration judge's adverse-credibility determination. The Ninth Circuit held the same on April 16, 2014 in Carrion Garcia v. Holder.

Although the case does expose the incentive an asylum applicant has to forum shop based on the publicly available data regarding the aforementioned dramatic fluctuations in asylum-application approval rates among the various immigration courts and immigration judges, there appears to be very little likelihood that anything will be done to correct such a phenomenon because of the wide discretion immigration judges have in asylum-application adjudications and the unwillingness of the BIA to narrow such discretion. Consequently, while forum shopping is impermissible for legitimate reasons, the U.S. Department of Justice will continue to have difficulty in maintaining an appearance of such legitimacy of its immigration-court system.

Monday, April 7, 2014

Shooting Fish in a Barrel: Government and Courts Have Focused Immigration-Enforcement Efforts on the Easiest yet Least Threatening Targets


An article in today's New York Times shows that despite the talk of a more compassionate deportation policy the U.S. government's enforcement of the Immigration Laws has focused more on removing from the U.S. individuals who do not pose a threat. One of the results of such rigid enforcement policies is the tremendous increase in illegal-reentry and in reinstatement cases regarding foreign nationals who return to the U.S. following a removal oftentimes to reunite with U.S.-citizen family members who are already in the U.S. When someone has already been deported, his/her returning to the U.S. without authorization may result in his/her being prosecuted in federal criminal court for the crime of illegal reentry. Prosecuting an illegal-reentry case is relatively not difficult because it is a strict-liability crime, meaning the intent or motive of the foreign national is of no consequence. Moreover, whether or not any illegal-reentry prosecution occurs, the foreign national may be removed again not pursuant to a new removal order but rather pursuant to reinstatement of the original removal order, thereby bypassing the normal procedural safeguards afforded in most removal scenarios. Unsurprisingly, with the increase of illegal-reentry prosecutions and of reinstatements, there have been more court challenges to the validity of these tools used by the U.S. government.

The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears appeals from U.S. District Courts in the Western States as well as petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal and reinstatement proceedings conducted within those same Western States, issued three decisions recently regarding foreign nationals who had already once been deported from the U.S. and who either were facing illegal-reentry prosecution or reinstatement of the previously issued removal order. In USA v. Lopez, the Ninth Circuit found at the beginning of this month that a foreign-national criminal defendant was properly convicted of illegal reentry despite the U.S. government's failure to produce evidence that he was actually previously ordered removed. The Ninth Circuit found that evidence of the removal itself, and not necessarily in combination with actual evidence of a removal order, is all that needs to be produced for one to be found guilty of illegal reentry.

Also regarding an illegal-reentry prosecution, USA v. Hernandez-Arias, issued last month by the Ninth Circuit, surprisingly held that a foreign national's underlying removal order was valid, and therefore could form the basis for his prosecution given that he illegally reentered after its execution, even though it was based on an allegation that he had never been admitted or paroled to the U.S. despite his previously being granted temporary resident status. Although ultimately terminated, the foreign national's grant of temporary resident status still would be nevertheless accepted by many as evidence of an admission. The Ninth Circuit at least attempted, although in faulty analysis, to reconcile the seemingly unlawfully issued removal order with its holding by finding that the termination of the foreign national's temporary resident status amounted to reversing his admission, in much the same manner a revocation, which is separate and distinct from a termination, would have. It will be interesting to see whether the decision will be overturned.

Turning to reinstatement, the Ninth Circuit held at the very end of last month in Ortega v. Holder that simply having available before the effectiveness in 1997 of the U.S. Congress's passage of the current reinstatement provision, but not taking until after such effectiveness any meaningful action toward pursuing, a form of relief from reinstatement does not in any way bar a reinstatement of a previous removal order. It is unclear how the foreign national could have been permitted actually to pursue such relief before being placed in reinstatement proceedings, which may have been necessary for there to be jurisdiction over his application, but the Ninth Circuit did not concern itself with such a practical issue. What these three decisions show is how the U.S. government's actual aggressive policy of enforcing the Immigration Laws against relatively nonthreatening foreign nationals is buttressed by the federal court's unwillingness to find fault with clear flaws in such enforcement.

In contrast, the Ninth Circuit held in Ceron v. Holder at the very end of last month that a foreign national convicted of assault with a deadly weapon other than a firearm may not have been convicted categorically of what's known in the Immigration Laws as a crime involving moral turpitude ("CIMT") that would result in a ground for removal. Consequently, the Ninth Circuit remanded the matter to the BIA to decide on the issue. While protection of dangerous criminals may not have been the intention of the Ninth Circuit, these recent decisions combined with the information found in the New York Times article published today show that such is the result and that foreign nationals with immigration-related issues need to stop hoping for Comprehensive Immigration Reform ("CIR") and need to start dealing with the reality of their cases.

Tuesday, March 18, 2014

Cutting to the Heart of the Matter: Determinations in Removal Proceedings


Many people in the U.S. are tired of the debate on Comprehensive Immigration Reform ("CIR") and simply want to have some finality on whether or not it is going to pass. Unfortunately, such a determination despite the efforts by some including Dan Pfeiffer, Assistant to the President, appears to be far from becoming final, and instead more discretion in how the law is enforced, rather than a change in the law itself, appears to be the proposed interim solution:

NBC's Meet the Press, March 16, 2014

Nevertheless, in spite of the continued refusal of the U.S. Congress, particularly the U.S. House of Representatives, to have a final vote on CIR, the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, issued four decisions that may be best summarized as cutting to the heart of the matter.

Three of the four published decisions pertained to whether a person's conviction rendered him/her removable or otherwise ineligible for relief from removal. For instance, in Coronado v. Holder, the court first determined that a Mexican man's state conviction for possession of methamphetamine was not categorically a controlled-substances offense as defined by the Immigration and Nationality Act ("INA"), meaning there was at least some activity for which one could be convicted under the state criminal law that would nevertheless not affect the convicted person's immigration status. Next, the court determined that because the state law was divisible, i.e., it references different drugs in the alternative rather than in the aggregate to establish its basis, the modified categorical approach could be pursued, meaning that the actual details of the alleged offense could be reviewed. After conducting the modified-categorical analysis, the court concluded the man had been convicted of a controlled-substances offense as defined by the INA.

Similarly, in Turijan v. Holder, the court ruled that a Mexican man's state conviction for false imprisonment, which was specifically charged as a felony effected by violence, menace, fraud, or deceit, was not categorically a crime involving moral turpitude ("CIMT"). However, in a footnote, the court noted that because the record did not contain any further details regarding the conviction, the modified-categoral could not be used to determine whether the conviction amounted to a CIMT.

Moreover, in Perez-Palafox v. Holder, the court ruled that the BIA did not engage in impermissible factfinding that led to the conclusion that a Mexican man's state conviction for transportation of methamphetamine constituted a particularly serious crime that rendered him ineligible to maintain his prior grant of withholding of removal.

The Ninth Circuit also discussed this past week the issue of credibility. In Huang v. Holder, the court sided with the relevant immigration judge's conclusion that a Chinese woman's demeanor while testifying, in part, conveyed that she was not being in honest regarding her asylum application.

All four cases show a concerted effort by the Ninth Circuit to clarify as much as possible what is permissible and what is not permissible during removal proceedings, something that CIR should accomplish if passed, but there still continues to be anything but clarity regarding whether such passage will occur.

Sunday, March 9, 2014

Courts are Plugging Several Holes in the Immigration Dam: Child Abduction, SIJS, CAT, & Reinstatement


In the absence of any action on Comprehensive Immigration Reform ("CIR") by the U.S. Congress, this past week saw a great deal of activity by the courts regarding immigration-related matters in an attempt to clarify often confusing rules. For instance, the U.S. Supreme Court held that there is no exception to the one-year filing deadline for a petition filed under the Hague Convention on the Civil Aspects of International Child Abduction to return a child to the U.S. following the child's removal out of the country by one of his/her parents. In Lozano v. Montoya Alvarez, all of the Justices found that the crucial deadline, by which the filing of a relevant petition would mandate the return of the child to the U.S. but after which such return may not be ordered if the child is now settled in his/her new environment, simply could not be postponed or "equitably tolled" because, to summarize as briefly as possible, such tolling does not apply to treaties.

The California Court of Appeal's Fourth Appellate District also addressed immigration-related matters concerning children, in particular a specific avenue for minors to obtain Lawful Permanent Residence ("a Green Card") known as Special Immigrant Juvenile Status ("SIJS"). In Leslie H. v. Superior Court (People), the court found that a California Superior Court Judge is without authority to deny a minor an order allowing him/her to apply for SIJS despite that judge's making the required factual findings, namely that the child (1) is either a dependent of the court or is legally placed with a state agency, a private agency, or a private person; (2) is not best served by being returned either to his/her home country or country in which s/he last resided; and (3) cannot be reunited with his/her parent(s).

Finally, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review regarding removal proceedings conducted within the Western States, held in Go v. Holder that motions to reopen regarding claims under the Convention Against Torture, another treaty, are subject to the normal time- and number-related limitations that apply to all other motions to reopen.  On the same day, the Ninth Circuit also held in Montoya v. Holder that the U.S. Department of Homeland Security ("DHS") is permitted to reinstate a previously executed removal order against someone who reentered the U.S. after such removal even if that person had an ultimately approved immigrant petition filed for him/her before the change in the law relating to reinstatement because such a petition failed to create any type of right to any immigration-related relief.

Sunday, March 2, 2014

Unnecessary Drama: Providing a Legally Sufficient Affidavit of Support


Many Americans were tuned in today to see what various celebrities were wearing to the Academy Awards and who would take home the Oscars. However, there appears to be more drama in the rest of the world than even Hollywood could conjure. For example, internationally there continues to be worrying news about the deteriorating situation in eastern Ukraine and the territorial ambitions of the Russian Federation, which shocked many with its military incursion into Crimea. Domestically, we are seeing even more evidence that conservative lawmakers are under pressure not to move forward with Comprehensive Immigration Reform ("CIR") as shown by the publicized negative reaction to Republican U.S. Senator Marco Rubio, whose work on the issue many believed was refreshing:

NBC's Meet the Press, March 2, 2014

Last Wednesday alone saw several other out-of-character portrayals: the veto by Republican Arizona Governor Jan Brewer, who is no stranger to the CIR debate, of a bill that would permit businesses to refuse services to gay and lesbian individuals on the basis of religious belief; the release by U.S. Customs and Border Protection ("CBP"), a sub-agency of the U.S. Department of Homeland Security ("DHS"), of a negative report regarding tactics used by its U.S. Border Patrol to engage with potential and actual unlawful border crossings; and the onset of torrential storms in Southern California.

Not to be outdone by the drama exhibited by, among other things, Los Angeles commuters attempting to drive in the rain, the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, provided what some would perceive as an award-winning critique of a decision by the BIA. That critique came in the form of Tadevosyan v. Holder, a case concerning an Armenian-citizen man who following the dismissal by the BIA of his administrative appeal filed a timely motion to reopen based on his marriage to a U.S. citizen who had pending for him an immediate-relative family-based immigrant petition. Although the man attached to his motion evidence that that petition was pending, his Green-Card application to be heard prospectively by the relevant U.S. Immigration Court, and an affidavit of support including income-related documents by a joint sponsor, DHS opposed the motion on the basis that the petition had not yet been approved and on the perceived insufficiency of the affidavit of support. Instead of following what many believe would be a reasonable course of action and granting the man's timely motion to reopen, the BIA opted to side with DHS and to deny the motion on the very same bases cited by DHS, thereby extending the drama of the man's immigration case.

The Ninth Circuit sought to put an end to the man's immigration-related drama by stating in its own form of dramatic fashion, "As we read the BIA's decision here, it is one of those in which the BIA improperly accorded controlling weight to the fact that DHS opposed the motion, without regard to whether the basis of that opposition was correct. The BIA recounted, in one sentence, the substance of the DHS's opposition. It did not analyze at all whether DHS's position ... held water." After subsequently engaging in the appropriate analysis and deciding that the pending nature of the relevant petition and the documents in support of the affidavit of support were adequate to warrant reopening of the man's removal proceedings, the Ninth Circuit concluded by stating, "[T]he failure to provide any reasoned explanation confirms that the [BIA] denied the motion because DHS objected, not because it considered DHS's objection on the merits and agreed with its reasoning."

Aside from the dramatic language used, the opinion's extensive analysis of what is required for a legally sufficient affidavit of support is what makes the decision noteworthy. Using that analysis to one's benefit by ensuring an affidavit of support is legally sufficient may require skilled immigration-related legal advice, which can be used to ensure an unsurprising and consequently undramatic resolution to one's immigration matter.