Removal Defense: Defending Immigrants in Immigration Court [2 ed.]

Table of contents :
Preface & Acknowledgements
Table of Contents
Chapter 1: Introduction to Removal Proceedings
§ 1.1 Introduction
§ 1.2 What’s Inside
§ 1.3 Immigration Proceedings: A Quick Overview
§ 1.4 The Legal Framework for Removal Proceedings
§ 1.5 The Concept of Admission
§ 1.6 Deportation and Exclusion Proceedings before IIRIRA
§ 1.7 The Grounds of Inadmissibility and Grounds of Deportability
§ 1.8 Burdens of Proof
Chapter 2: Meeting Your Client & Assessment of the Case
§ 2.1 Introduction
§ 2.2 Attorney-Client Relationship: Some Basics
§ 2.3 The Client Interview
§ 2.4 A Closer Look at the Initial Meeting and the Intake Sheet
§ 2.5 Subsequent Information-Gathering Meetings
§ 2.6 Working with Vulnerable Clients
§ 2.7 Analyzing Your Client’s Case
§ 2.8 Educate Your Client on His or Her Case
§ 2.9 Ask the Client and His or Her Family to Do Work on the Case
§ 2.10 Case Management
§ 2.11 Freedom of Information Act (FOIA)
§ 2.12 CBP FOIA Requests
§ 2.13 OBIM FOIA Requests
§ 2.14 Expedited FOIA Requests for Clients in Removal
§ 2.15 Challenging the FOIA Response
§ 2.16 Subpoenas
§ 2.17 Criminal Documents
Chapter 3: Non-Criminal Grounds of Inadmissibility
§ 3.1 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse
§ 3.2 Alien Smuggling
§ 3.3 Fraud and Misrepresentation
§ 3.4 False Claim to U.S. Citizenship
§ 3.5 Inadequate Documentation and Document Fraud
§ 3.6 Likely to Become a Public Charge
§ 3.7 Entry, Admission, and Effective Dates
§ 3.8 Unlawfully Present in the United States without Being Admitted or Paroled
§ 3.9 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver
§ 3.10 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed, and Who Enter or Attempt to Enter without Being Admitted
§ 3.11 The Differences between “Unlawful Presence” under INA § 212(a)(9)(B) & (C) and “Unlawful Status”
§ 3.12 Failure to Attend Removal Proceedings
§ 3.13 Past Removal or Deportation/Exclusion
§ 3.14 Other Grounds: Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors
Chapter 4: Non-Criminal Grounds of Deportability
§ 4.1 Removable for Being Inadmissible at Entry or Adjustment
§ 4.2 Present in Violation of Law
§ 4.3 Violated Nonimmigrant Status
§ 4.4 Violation of Condition of Entry
§ 4.5 Marriage Problems
§ 4.6 Failure to Register and Falsification of Documents
§ 4.7 Public Charge Ground of Deportation
§ 4.8 Alien Smuggling
§ 4.9 Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility
Chapter 5: Crimes & the Grounds of Deportability, Inadmissibility, & Bars to Establishing Good Moral Character
§ 5.1 Clients with Criminal Records
§ 5.2 Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings
§ 5.3 What Is a Criminal Conviction?
§ 5.4 Definition of a Sentence
§ 5.5 The Categorical Approach in Three Steps
§ 5.6 Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach
§ 5.7 Exceptions to the Categorical Analysis
§ 5.8 Overview of Immigration Consequences of Crimes
§ 5.9 Aggravated Felonies
§ 5.10 Inadmissibility and Deportability Based on Drug Offenses
§ 5.11 Crimes Involving Moral Turpitude
§ 5.12 Firearms Offenses
§ 5.13 Other Criminal Grounds of Deportability and Inadmissibility
§ 5.14 Clearing Up a Criminal Record
§ 5.15 The Good Moral Character Requirement
Chapter 6: Representing Detained Clients in Bond Hearings
§ 6.1 Introduction to the Immigration Detention System
§ 6.2 Representing Detained Clients: Special Challenges
§ 6.3 Securing Release for Your Client
§ 6.4 Avoiding Initial Custody by ICE: ICE Detainers
§ 6.5 Custody Determination
§ 6.6 Venue and Timing: Where and When to Request a Bond Hearing
§ 6.7 Mandatory Detention
§ 6.8 Challenging Mandatory Detention and Prolonged Detention
§ 6.9 Children and Bond
§ 6.10 Preparing for the Bond Hearing
§ 6.11 Proving the Bond Case
§ 6.12 Posting the Bond
Chapter 7: The Master Calendar Hearing & Contesting Removal
§ 7.1 The NTA and the Initiation of Removal Proceedings
§ 7.2 A Brief Overview of the Master Calendar Hearing
§ 7.3 Preparation before the Master Calendar Hearing
§ 7.4 General Procedures during a Master Calendar Hearing
§ 7.5 Pleading to the Notice to Appear
§ 7.6 When and Whether to Concede Removability
§ 7.7 Special Considerations for Unaccompanied Minors and Children
§ 7.8 Evidentiary Considerations; Motions to Suppress
§ 7.9 After the Master Calendar Hearing
Chapter 8: Trial Practice & Motions: The Individual Hearing & Trial Practice
§ 8.1 Introduction
§ 8.2 Strategy
§ 8.3 Document Submission
§ 8.4 Rules and Procedures
§ 8.5 Preserving the Record
§ 8.6 Testimony
§ 8.7 Opening and Closing Statements
§ 8.8 Judge’s Decision
§ 8.9 Filing Motions
Chapter 9: Filing for Relief
§ 9.1 Introduction
§ 9.2 Jurisdiction
§ 9.3 Special Considerations on Jurisdiction
§ 9.4 Strategies while Awaiting a Decision by USCIS
§ 9.5 Filing Applications and Documents
§ 9.6 Voluntary Departure
§ 9.7 Prosecutorial Discretion
§ 9.8 Deferred Action for Childhood Arrivals
Chapter 10: Introduction to Non-LPR Cancellation of Removal, Former Suspension of Deportation, VAWA Cancellation of Removal, & NACARA Suspension & Cancellation of Removal
§ 10.1 Overview of the Law
§ 10.2 Introduction to Cancellation of Removal under INA § 240A(b)(1) (“Non-LPR Cancellation”)
§ 10.3 Continuous Physical Presence for Non-LPR Cancellation
§ 10.4 Good Moral Character and Criminal Bars in Non-LPR Cancellation
§ 10.5 Exceptional and Extremely Unusual Hardship for Non-LPR Cancellation
§ 10.6 Discretion
§ 10.7 Judicial Review
§ 10.8 Introduction to Suspension of Deportation
§ 10.9 Continuous Physical Presence for Suspension of Deportation
§ 10.10 Good Moral Character for Suspension of Deportation
§ 10.11 Hardship for Suspension of Deportation
§ 10.12 Introduction to VAWA Cancellation and Suspension
§ 10.13 Establishing the Family Relationship for VAWA Cancellation and Suspension
§ 10.14 Battery or Extreme Cruelty for VAWA Cancellation and Suspension
§ 10.15 Three Years of Continuous Physical Presence for VAWA Cancellation and Suspension
§ 10.16 Inadmissibility and Deportability Bars to VAWA Cancellation
§ 10.17 Good Moral Character for VAWA Cancellation
§ 10.18 Extreme Hardship for VAWA Cancellation
§ 10.19 VAWA Cancellation Compared with VAWA Self-Petitioning
§ 10.20 Motions to Reopen in the VAWA Context
§ 10.21 Introduction to NACARA
§ 10.22 Continuous Physical Presence for NACARA
§ 10.23 Hardship for NACARA
§ 10.24 Good Moral Character for NACARA
§ 10.25 NACARA Suspension and Cancellation for Those with Certain Crimes
Chapter 11: Applying for Cancellation of Removal (For Lawful Permanent Residents) under INA § 240A(a) and the § 212(c) Waiver
§ 11.1 Introduction: Cancellation of Removal and the Former § 212(c)Waiver
§ 11.2 Overview of Legal Requirements
§ 11.3 Removal Grounds That Can Be Waived by Cancellation of Removal
§ 11.4 Lawful Permanent Resident Status for at Least Five Years
§ 11.5 Seven Years Continuous Residence after Admission
§ 11.6 Never Convicted of an Aggravated Felony
§ 11.7 Other Bars to Eligibility
§ 11.8 Proving That Your Client Merits a Favorable Exercise of Discretion
§ 11.9 Proving Rehabilitation: The Three Story Approach
§ 11.10 Preparing the Client for the Hearing
§ 11.11 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings
Chapter 12: Asylum and Related Relief: Asylum, Withholding, Convention Against Torture
§ 12.1 Overview of Asylum Law
§ 12.2 Defensive Asylum in Removal Proceedings
§ 12.3 Comparing Asylum and Withholding of Removal
§ 12.4 Relief under the Torture Convention
§ 12.5 The “Asylum Clock” and Qualifying for Work Authorization
§ 12.6 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal
§ 12.7 Bars to Both Asylum and Withholding of Removal
§ 12.8 The Statute: Legal Requirements for Eligibility for Asylum
§ 12.9 Well-Founded Fear of Persecution
§ 12.10 Past Persecution
§ 12.11 What Is Persecution?
§ 12.12 Persecutors: Government and Non-Governmental Forces
§ 12.13 Connecting Persecution to the “Enumerated Grounds”
§ 12.14 The Meaning of the Protected Grounds
§ 12.15 Spotlight on Membership in a Particular Social Group
§ 12.16 The REAL ID Act and Corroboration
§ 12.17 Credibility and Frivolous Applications
Chapter 13: Motions to Reopen
§ 13.1 Introduction to Motions to Reopen
§ 13.2 Comparing Motions to Reopen, Remand, and Reconsider
§ 13.3 General Requirements for Reopening Removal Proceedings
§ 13.4 Exceptions to Time and Numerical Limitations
§ 13.5 Where to File the Motion
§ 13.6 Effect of Departure from the United States
§ 13.7 Proving That the New Evidence Is Material and Was Previously Unavailable
§ 13.8 Exceptions Where Changed Circumstances Give Rise to Eligibility for Asylum
§ 13.9 Motions to Reopen Involving Prior Ineffective Assistance of Counsel
§ 13.10 Overview of MTRs Challenging In Absentia Removal Orders
§ 13.11 Reopening In Absentia Removal Orders Based on Exceptional Circumstances
§ 13.12 Reopening In Absentia Removal Orders Based on Lack of Notice
§ 13.13 Joint and Sua Sponte Motions to Reopen
§ 13.14 Discretionary Factors Relevant to Motions to Reopen
Index of Appendices
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
Appendix G
Appendix H
Appendix I
Appendix J
Appendix K
Appendix L
Appendix M
Appendix N
Appendix O
Appendix P
Appendix Q
Appendix R
Appendix S
Appendix T
Appendix U
Appendix V
Appendix W
Appendix X
Appendix Y
Appendix Z
Other ILRC Services
Attorney of the Day Service
Reprint Permissions
Subscribe to ILRC Listservs
Related Publications

Citation preview

ILRC.RemovDefense.2ndEd2017Cov..qxp_Layout 2 8/22/17 7:53 AM Page 1

Removal Defense: Defending Immigrants in Immigration Court is a quick reference to key issues in removal defense, with a focus on the practical questions that aren’t easily answered by combing the regulations and case law. This resource covers an overview of immigration proceedings, the grounds of inadmissibility and deportability, pleading to the Notice to Appear, trial practice tips, and a look at common forms of relief from removal, including cancellation of removal for both lawful permanent residents and non-residents, as well as asylum. The appendices include many helpful samples which provide a fuller understanding of what court practice looks like. We’ve listened! Now in its second edition, Removal Defense includes a new chapter dedicated to Motions to Reopen with sample materials, and expanded how-to section on attending a master calendar hearing. Of course, we have also provided legal updates throughout, including an up-to-date look at challenges to prolonged detention and the categorical approach used to analyze criminal convictions.

Removal Defense: Defending Immigrants in Immigration Court

One thing that is abundantly clear—immigrants need representation in immigration court. Most immigrants face removal proceedings without an attorney or authorized representative, and the outcomes with and without a representative are grossly disparate. With this publication, we hope to build the capacity of immigration practitioners to assist individuals in immigration court proceedings to provide more immigrants with a meaningful chance at justice.

Removal Defense: Defending Immigrants in Immigration Court

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792

WWW.ILRC.ORG

2nd Edition

1663 MISSION STREET SUITE 602

2nd Edition By Erin Quinn and ILRC Staff Attorneys

Removal Defense:

Defending Immigrants in Immigration Court 2nd Edition By Erin Quinn and ILRC Staff Attorneys

The Immigrant Legal Resource Center

A

Copyright 2017 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 415.255.9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights.  Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. WHAT WE DO Legal Professionals & Advocates 

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.



Publications: ILRC publishes some of the top reference manuals on immigration law.



Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day (AOD) provides legal assistance to attorneys, staff of nonprofit organizations, public defenders, and others assisting immigrants. Immigrants 

Community Advocacy: ILRC assists immigrant groups in understanding immigration law and the democratic process in the United States, so as to enable them to advocate for better policies in immigration law, as well as in health care, community safety, and other issues that affect the immigrant community.



Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.



Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants. Laws, Policies & Practice 

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.



Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.



Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system. How to Contact Us 

General inquiries: [email protected]



Publications: [email protected]



Seminars: [email protected]



Attorney of the Day (AOD): [email protected]

 Website: www.ilrc.org How to Support Our Work Please visit our website www.ilrc.org to make a tax-deductible contribution.

PREFACE AND ACKNOWLEDGEMENTS One thing that is abundantly clear: immigrants need representation in immigration court. Most immigrants face removal proceedings without an attorney or authorized representative, and the outcomes with and without a representative are grossly disparate. With this manual, we hope to build capacity of immigration practitioners to assist immigrants in immigration court proceedings, in order to provide more immigrants with a meaningful chance at justice. Now, more than when we first envisioned this manual, capacity to defend immigrants facing removal is critical to maintaining our core democratic values. Removal Defense: Defending Immigrants in Immigration Court came into being in response to requests from practitioners, wishing for some practical guidance on taking cases into the courtroom. In creating this resource, we intended to create a quick reference to key issues in removal defense, with a focus on the practical questions that aren’t easily answered by combing the regulations and case law. The appendices include many helpful samples which will hopefully provide a fuller understanding of what court practice looks like. The ILRC would like to thank the many people who contributed to the publication of Removal Defense. Many at the ILRC worked on this manual in various capacities. This manual was built on the work of ILRC Staff Attorneys over the years and the entire legal staff, both past and present, deserves credit for the content of this manual. ILRC Attorneys Grisel Ruiz, Alison Kamhi, Kathy Brady, Lena Graber, Rose Kahn, Allison Davenport, and Ariel Brown provided content and updates to various chapters. Immigration Attorney, Aruna Sury, helped write and provided insight on several chapters. Additionally, legal interns, Sarah Lakhani and Karla Cruz contributed. Additionally, Ann Block, Barbara Pinto, and Alexandra Wilson all contributed to the first edition. This manual would not have been possible without samples and feedback from practitioners. We would like to thank the following people, firms and organizations for generously sharing their expertise and knowledge in removal defense, which we hope will grow among legal professionals as a result of this publication: Mary Beth Kaufman, Elliott Ozment, Chelsea HaleyNelson, Sarah Kate Heilbrun, Aruna Sury, Ilyce Shugall, Eleni Wolfe-Roubatis, Law Offices of Van Der Hout, Brigagliano and Nightingale, The Immigrants’ Rights Clinic of Stanford Law School, Centro Legal de la Raza, and the Immigration Law Clinic of UC Davis School of Law. We would also like to thank those who provided editorial support in the production of this manual: ILRC Deputy Director Sally Kinoshita; ILRC Publications & Program Coordinator, Timothy Sheehan, for his copyediting and publishing support; and Marketing Manager, Linda Mogannam, for her assistance with design and planning. Finally, the production of this legal manual was made possible by a generous grant from the California Equal Access Fund, to whom we are very grateful. Our gratitude is extended to all the above-mentioned for their generosity and their invaluable contributions. Erin J. Quinn Staff Attorney Immigrant Legal Resource Center

=

Removal Defense: Defending Immigrants in Immigration Court June 2017

REMOVAL DEFENSE: DEFENDING IMMIGRANTS IN IMMIGRATION COURT 2ND EDITION TABLE OF CONTENTS Chapter 1

Introduction to Removal Proceedings

§ 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8

Introduction ........................................................................................................ 1-1 What’s Inside...................................................................................................... 1-1 Immigration Proceedings: A Quick Overview ................................................... 1-3 The Legal Framework for Removal Proceedings ............................................... 1-6 The Concept of Admission ................................................................................. 1-7 Deportation and Exclusion Proceedings before IIRIRA .................................. 1-12 The Grounds of Inadmissibility and Grounds of Deportability ........................ 1-13 Burdens of Proof .............................................................................................. 1-14

Chapter 2

Meeting Your Client and Assessment of the Case

§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8 § 2.9 § 2.10 § 2.11 § 2.12 § 2.13 § 2.14 § 2.15 § 2.16 § 2.17

Introduction ........................................................................................................ 2-1 Attorney-Client Relationship: Some Basics ....................................................... 2-2 The Client Interview........................................................................................... 2-3 A Closer Look at the Initial Meeting and the Intake Sheet ................................ 2-6 Subsequent Information-Gathering Meetings .................................................... 2-7 Working with Vulnerable Clients....................................................................... 2-8 Analyzing Your Client’s Case .......................................................................... 2-10 Educate Your Client on His or Her Case.......................................................... 2-11 Ask the Client and His or Her Family to Do Work on the Case ...................... 2-12 Case Management ............................................................................................ 2-14 Freedom of Information Act (FOIA) ................................................................ 2-16 CBP FOIA Requests......................................................................................... 2-17 OBIM FOIA Requests ...................................................................................... 2-17 Expedited FOIA Requests for Clients in Removal........................................... 2-17 Challenging the FOIA Response ...................................................................... 2-18 Subpoenas......................................................................................................... 2-19 Criminal Documents ........................................................................................ 2-20

Chapter 3

Non-Criminal Grounds of Inadmissibility

§ 3.1

Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse ......................... 3-2 Alien Smuggling ................................................................................................ 3-7 Fraud and Misrepresentation ............................................................................ 3-11 False Claim to U.S. Citizenship ....................................................................... 3-14 Inadequate Documentation and Document Fraud ............................................ 3-21 Likely to Become a Public Charge ................................................................... 3-24 Entry, Admission, and Effective Dates ............................................................ 3-40

§ 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7

Table of Contents 1

Immigrant Legal Resource Center June 2017

§ 3.8 § 3.9 § 3.10

§ 3.11 § 3.12 § 3.13 § 3.14

Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 3-41 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 3-43 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed, and Who Enter or Attempt to Enter without Being Admitted ..................................................................... 3-53 The Differences between “Unlawful Presence” under INA § 212(a)(9)(B) & (C) and “Unlawful Status” ........................................................................... 3-59 Failure to Attend Removal Proceedings ........................................................... 3-61 Past Removal or Deportation/Exclusion .......................................................... 3-62 Other Grounds: Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors ............................................................................................... 3-65

Chapter 4

Non-Criminal Grounds of Deportability

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9

Removable for Being Inadmissible at Entry or Adjustment............................... 4-1 Present in Violation of Law................................................................................ 4-3 Violated Nonimmigrant Status ........................................................................... 4-3 Violation of Condition of Entry ......................................................................... 4-4 Marriage Problems ............................................................................................. 4-4 Failure to Register and Falsification of Documents ........................................... 4-5 Public Charge Ground of Deportation................................................................ 4-6 Alien Smuggling ................................................................................................ 4-7 Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility................................................................................................ 4-8

Chapter 5

Crimes and the Grounds of Deportability, Inadmissibility, and Bars to Establishing Good Moral Character

§ 5.1 § 5.2

Clients with Criminal Records ........................................................................... 5-1 Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings ....................................................................... 5-3 What Is a Criminal Conviction? ......................................................................... 5-4 Definition of a Sentence ................................................................................... 5-13 The Categorical Approach in Three Steps........................................................ 5-16 Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach ................................................................ 5-24 Exceptions to the Categorical Analysis ............................................................ 5-26 Overview of Immigration Consequences of Crimes ........................................ 5-31 Aggravated Felonies ......................................................................................... 5-34 Inadmissibility and Deportability Based on Drug Offenses ............................. 5-38 Crimes Involving Moral Turpitude .................................................................. 5-58 Firearms Offenses ............................................................................................ 5-67 Other Criminal Grounds of Deportability and Inadmissibility ......................... 5-72

§ 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13

Table of Contents 2

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 5.14 § 5.15

Clearing Up a Criminal Record ........................................................................ 5-82 The Good Moral Character Requirement ......................................................... 5-85

Chapter 6

Representing Detained Clients in Bond Hearings

§ 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Introduction to the Immigration Detention System ............................................ 6-1 Representing Detained Clients: Special Challenges........................................... 6-3 Securing Release for Your Client ....................................................................... 6-6 Avoiding Initial Custody by ICE: ICE Detainers ............................................... 6-7 Custody Determination....................................................................................... 6-8 Venue and Timing: Where and When to Request a Bond Hearing .................. 6-11 Mandatory Detention........................................................................................ 6-11 Challenging Mandatory Detention and Prolonged Detention .......................... 6-15 Children and Bond ........................................................................................... 6-23 Preparing for the Bond Hearing ....................................................................... 6-24 Proving the Bond Case ..................................................................................... 6-25 Posting the Bond .............................................................................................. 6-31

Chapter 7

The Master Calendar Hearing and Contesting Removal

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9

The NTA and the Initiation of Removal Proceedings ........................................ 7-1 A Brief Overview of the Master Calendar Hearing............................................ 7-2 Preparation before the Master Calendar Hearing ............................................... 7-4 General Procedures during a Master Calendar Hearing ..................................... 7-7 Pleading to the Notice to Appear ....................................................................... 7-9 When and Whether to Concede Removability ................................................. 7-14 Special Considerations for Unaccompanied Minors and Children .................. 7-17 Evidentiary Considerations; Motions to Suppress ........................................... 7-19 After the Master Calendar Hearing .................................................................. 7-36

Chapter 8

Trial Practice and Motions: The Individual Hearing and Trial Practice

§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9

Introduction ........................................................................................................ 8-1 Strategy............................................................................................................... 8-2 Document Submission........................................................................................ 8-7 Rules and Procedures ......................................................................................... 8-8 Preserving the Record ........................................................................................ 8-9 Testimony ......................................................................................................... 8-10 Opening and Closing Statements ..................................................................... 8-14 Judge’s Decision .............................................................................................. 8-14 Filing Motions .................................................................................................. 8-15

Table of Contents 3

Immigrant Legal Resource Center June 2017

Chapter 9

Filing for Relief

§ 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8

Introduction ........................................................................................................ 9-1 Jurisdiction ......................................................................................................... 9-1 Special Considerations on Jurisdiction............................................................... 9-4 Strategies while Awaiting a Decision by USCIS ............................................. 9-10 Filing Applications and Documents ................................................................. 9-12 Voluntary Departure ......................................................................................... 9-14 Prosecutorial Discretion ................................................................................... 9-19 Deferred Action for Childhood Arrivals .......................................................... 9-21

Chapter 10

Introduction to Non-LPR Cancellation of Removal, Former Suspension of Deportation, VAWA Cancellation of Removal, and NACARA Suspension and Cancellation of Removal

§ 10.1 § 10.2

Overview of the Law ........................................................................................ 10-2 Introduction to Cancellation of Removal under INA § 240A(b)(1) (“Non-LPR Cancellation”) ............................................................................... 10-3 Continuous Physical Presence for Non-LPR Cancellation............................... 10-4 Good Moral Character and Criminal Bars in Non-LPR Cancellation ............ 10-11 Exceptional and Extremely Unusual Hardship for Non-LPR Cancellation ................................................................................... 10-21 Discretion ....................................................................................................... 10-27 Judicial Review .............................................................................................. 10-28 Introduction to Suspension of Deportation .................................................... 10-29 Continuous Physical Presence for Suspension of Deportation....................... 10-32 Good Moral Character for Suspension of Deportation................................... 10-34 Hardship for Suspension of Deportation ........................................................ 10-34 Introduction to VAWA Cancellation and Suspension.................................... 10-36 Establishing the Family Relationship for VAWA Cancellation and Suspension ............................................................................................... 10-39 Battery or Extreme Cruelty for VAWA Cancellation and Suspension .......... 10-41 Three Years of Continuous Physical Presence for VAWA Cancellation and Suspension .......................................................................... 10-43 Inadmissibility and Deportability Bars to VAWA Cancellation .................... 10-44 Good Moral Character for VAWA Cancellation............................................ 10-45 Extreme Hardship for VAWA Cancellation................................................... 10-46 VAWA Cancellation Compared with VAWA Self-Petitioning ..................... 10-48 Motions to Reopen in the VAWA Context .................................................... 10-49 Introduction to NACARA .............................................................................. 10-50 Continuous Physical Presence for NACARA ................................................ 10-53 Hardship for NACARA .................................................................................. 10-53 Good Moral Character for NACARA ............................................................ 10-54 NACARA Suspension and Cancellation for Those with Certain Crimes................................................................................................ 10-55

§ 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12 § 10.13 § 10.14 § 10.15 § 10.16 § 10.17 § 10.18 § 10.19 § 10.20 § 10.21 § 10.22 § 10.23 § 10.24 § 10.25

Table of Contents 4

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Applying for Cancellation of Removal (For Lawful Permanent Residents) under INA § 240A(a) and the § 212(c) Waiver

§ 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11

Introduction: Cancellation of Removal and the Former § 212(c) Waiver ........ 11-1 Overview of Legal Requirements..................................................................... 11-2 Removal Grounds That Can Be Waived by Cancellation of Removal ............ 11-4 Lawful Permanent Resident Status for at Least Five Years ............................. 11-5 Seven Years Continuous Residence after Admission ...................................... 11-8 Never Convicted of an Aggravated Felony .................................................... 11-20 Other Bars to Eligibility ................................................................................. 11-21 Proving That Your Client Merits a Favorable Exercise of Discretion ........... 11-21 Proving Rehabilitation: The Three Story Approach ....................................... 11-28 Preparing the Client for the Hearing .............................................................. 11-30 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings ..................................................................................... 11-32

Chapter 12

Asylum and Related Relief: Asylum, Withholding, Convention Against Torture

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6 § 12.7 § 12.8 § 12.9 § 12.10 § 12.11 § 12.12 § 12.13 § 12.14 § 12.15 § 12.16 § 12.17

Overview of Asylum Law ................................................................................ 12-1 Defensive Asylum in Removal Proceedings .................................................... 12-2 Comparing Asylum and Withholding of Removal ........................................... 12-3 Relief under the Torture Convention................................................................ 12-7 The “Asylum Clock” and Qualifying for Work Authorization ........................ 12-9 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal ..................................................................................................... 12-10 Bars to Both Asylum and Withholding of Removal ...................................... 12-21 The Statute: Legal Requirements for Eligibility for Asylum ......................... 12-31 Well-Founded Fear of Persecution ................................................................. 12-33 Past Persecution.............................................................................................. 12-34 What Is Persecution? ...................................................................................... 12-40 Persecutors: Government and Non-Governmental Forces ............................. 12-42 Connecting Persecution to the “Enumerated Grounds” ................................. 12-43 The Meaning of the Protected Grounds ......................................................... 12-46 Spotlight on Membership in a Particular Social Group.................................. 12-57 The REAL ID Act and Corroboration ............................................................ 12-72 Credibility and Frivolous Applications .......................................................... 12-74

Chapter 13

Motions to Reopen

§ 13.1 § 13.2 § 13.3 § 13.4 § 13.5

Introduction to Motions to Reopen .................................................................. 13-1 Comparing Motions to Reopen, Remand, and Reconsider .............................. 13-2 General Requirements for Reopening Removal Proceedings .......................... 13-2 Exceptions to Time and Numerical Limitations ............................................... 13-3 Where to File the Motion ................................................................................. 13-5

Table of Contents 5

Immigrant Legal Resource Center June 2017

§ 13.6 § 13.7 § 13.8 § 13.9 § 13.10 § 13.11 § 13.12 § 13.13 § 13.14

Effect of Departure from the United States ...................................................... 13-5 Proving That the New Evidence Is Material and Was Previously Unavailable..................................................................................... 13-6 Exceptions Where Changed Circumstances Give Rise to Eligibility for Asylum ............................................................................................................. 13-7 Motions to Reopen Involving Prior Ineffective Assistance of Counsel ........... 13-8 Overview of MTRs Challenging In Absentia Removal Orders ...................... 13-18 Reopening In Absentia Removal Orders Based on Exceptional Circumstances ............................................................................ 13-19 Reopening In Absentia Removal Orders Based on Lack of Notice ............... 13-21 Joint and Sua Sponte Motions to Reopen ....................................................... 13-26 Discretionary Factors Relevant to Motions to Reopen................................... 13-30

Index of Appendices Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J

Appendix K Appendix L Appendix M

Appendix N Appendix O Appendix P Appendix Q Appendix R Appendix S Appendix T Appendix U Appendix V Appendix W Appendix X Appendix Y Appendix Z

Sample Notice to Appear and Order to Show Cause Sample Record of Deportable Alien, Form I-213 Sample Notice of Custody Determination, Form I-286 Sample Client Interview Tools FOIA Materials Criminal Record Requests Sample Engagement Letter Bond Hearing Worksheet and Checklists Bond Hearing Sample Materials Memorandum, Enforcement of the Immigration Laws to Serve the National Interest, February 20, 2017 (John Kelly, Secretary, U.S. Department of Homeland Security Online Detainee Locator System Brochure in English and Spanish ICE Detainee Transfers Policy, January 4, 2012 Filing Notice of Representation FAQs re: eRegistry Sample E-28 Form E-33, Change of Address Form (Florence Court example) Biometrics Instructions Sheet Motion to Suppress Sample Materials Final IJ Decision Materials Sample Proposed Order Template and Sample Proof of Service Sample Motions Cancellation of Removal Document Gathering Lists Sample Release of Information Consent Form Sample Prosecutorial Discretion Requests Sample Document Submissions in Support of Relief Sample Testimony Questions Inadmissibility Grounds References Sample Motion to Reopen

Table of Contents 6

CHAPTER 1 INTRODUCTION TO REMOVAL PROCEEDINGS

This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8

Introduction ........................................................................................................ 1-1 What’s Inside...................................................................................................... 1-1 Immigration Proceedings: A Quick Overview ................................................... 1-3 The Legal Framework for Removal Proceedings ............................................... 1-6 The Concept of Admission ................................................................................. 1-7 Deportation and Exclusion Proceedings before IIRIRA .................................. 1-12 The Grounds of Inadmissibility and Grounds of Deportability ........................ 1-13 Burdens of Proof .............................................................................................. 1-14

§ 1.1

Introduction

To be an effective immigration advocate, it is essential to have a thorough understanding of the laws affecting your clients and an understanding of the legal system in which they must present their claims. While many immigration processes do not reach the courtroom, an immigrant may find themselves in front of an immigration judge for various reasons. They might be apprehended by law enforcement, and ICE learns that they are here in violation of immigration laws; they might file a case before USCIS and get referred to immigration court; or they might get referred after apprehension at the border or upon expiration of status. Many practitioners feel ill-equipped to help their clients when the case takes this turn. This manual is designed to give practitioners an introduction to removal proceedings so that they may better assist their clients who have been charged with being removable and placed in removal proceedings. This manual is designed as a “how to” manual; it contains clear, concise, and detailed explanations of the various stages of a case before an immigration judge with helpful tips and pointers to guide a practitioner through proceedings. As such, this manual will consider both points in substantive law, such as the grounds of inadmissibility and deportability, as well as guidance on removal procedure. § 1.2

What’s Inside

Our goal in writing this manual has been to provide practitioners with an easy, practical way to find information that is specific and relevant to the situations faced by clients in immigration court proceedings. Chapter 1 provides a framework for immigration court proceedings and fundamentals for how an immigrant should be charged. Each chapter is described below: Chapter 1: Introduction to Removal Proceedings. This chapter contains a general discussion of what removal proceedings are, and how an immigrant is charged with being removable from the United States. This chapter will discuss what is meant by inadmissibility and deportability and the concept of admission. Next, we focus on the burden of proof, how it differs depending on whether your client is charged with being inadmissible or deportable, the particular rules for LPRs, and the

1-1

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

burden of proof when an immigrant is seeking relief from removal. We also pause to distinguish expedited removal and administrative removal processes which provide less due process than removal proceedings. Chapter 2: Case Assessment and Discovery. Chapter 2 discusses important aspects of working with your client, and assessing your client’s case. This chapter will discuss the attorney-client relationship as well as important discovery steps one can take to fully prepare for court, such as FOIA requests and obtaining criminal documents. Chapter 3: Non-Criminal Grounds of Inadmissibility. This chapter covers the non-criminal grounds of inadmissibility, including unlawful presence bars, prior deportation orders, misrepresentation, and alien smuggling. Chapter 4: Non-Criminal Grounds of Deportability. This chapter covers some of the more common non-criminal grounds of deportability, such as deportability for being inadmissible at the time of admission, alien smuggling, and false claim to U.S. citizenship and unlawful voting. Chapter 5: Criminal Grounds of Removal. The subject of Chapter 5 is the criminal grounds of inadmissibility and deportability. These are the most common grounds alleged for removal of LPRs, and can pose barriers to relief from removal for many clients. This chapter provides an in-depth analysis of these grounds, the differences between them, and when they apply. It also includes an analysis of how the terms “conviction” and “sentence” are defined under the Immigration and Nationality Act (INA), the documents that can be produced to prove that a conviction exists, divisible statutes and the record of conviction (documents that can be used to prove a conviction triggers a ground of removal), the effect of post-conviction relief and appeals, federal versus state definitions of crimes, etc. Chapter 6: Representing Detained Clients and Bond Hearings. This chapter includes practice tips for dealing with detained clients and a look at bond hearings. This chapter includes a breakdown of what elements your client must prove to be successful with a bond request in front of the immigration judge. Chapter 6 discusses mandatory detention and special bond hearings that might occur after a prolonged detention. Chapter 7: The Master Calendar Hearing and Contesting Removal. Now that you know what charges your client might be facing, and the burden of proof that might apply, this chapter will discuss the master calendar hearing and contesting removal charges. This chapter includes practical information to assist the practitioner at the master calendar hearing, including a discussion of the notice to appear, taking pleadings, and contesting removal. This chapter provides a detailed discussion on bases for filing motions to suppress. Chapter 8: Trial Preparation and Motions. This chapter covers preparation for the merits hearing, or individual hearing. In addition, we will cover possible motions one might file before the immigration court. Motions to continue, as well as common motions to change venue and for telephonic testimony are discussed. In the next four chapters, we will briefly look at the various relief options available to an immigrant facing removal. These chapters are designed for initial case assessment and analysis. The first of these chapters will discuss procedures and practical tips on filing, as well as a discussion of

1-2

prosecutorial discretion and voluntary departure. Chapters 10, 11, and 12 will highlight forms of relief that arise frequently in complex removal proceedings. Chapter 9: Filing for Relief. Chapter 9 includes practical information to assist the practitioner considering options and filing for relief from removal. We will discuss prosecutorial discretion, and threshold issues, such as who has jurisdiction over the relief you wish to seek. In addition, this chapter will discuss voluntary departure as an option. Chapter 10: Non-LPR Cancellation of Removal and Related Relief. In this chapter, we will discuss non-lawful permanent resident cancellation of removal, a form of relief that one may only apply for in proceedings. In addition, we will briefly discuss related forms of relief, including cancellation and suspension under NACARA, and the former suspension of deportation. Chapter 11: LPR Cancellation and Former 212(c). This chapter covers relief for lawful permanent residents, including cancellation of removal and the former waiver provision, INA § 212(c). Chapter 12: Asylum. This chapter will provide an overview of common issues that arise when representing an asylum applicant in removal proceedings. This chapter discusses the differences between withholding of removal and asylum, and provides an overview of the bars to relief in order to properly screen and prepare your client for questions in court. Chapter 13: Motions to Reopen: This final chapter discusses motions to reopen removal proceedings after the judge has already made a decision. We discuss the various rules and bases pertaining to motions to reopen. This chapter includes a discussion of motions to pursue asylum, motions to reopen in absentia orders, and motions based on ineffective assistance of counsel. Sample motions are provided in Appendix Z. In addition, this manual includes sample materials and useful resources within the appendices. § 1.3 A.

Immigration Proceedings: A Quick Overview

Removal Proceedings under INA § 240

Removal proceedings begin when DHS files a notice to appear with the immigration court. One of many officers within DHS may create a Notice to Appear, which is an official charging document stating the factual basis for the charges against the non-citizen, and stating the charges or reasons under the law which make the person removable from the United States. You can look at a sample NTA at Appendix A. Once a person is served with a notice to appear, and the notice to appear is filed with the immigration court, the person is in removal proceedings. Removal proceedings are administrative in nature. The immigration courts are part of the Executive Office for Immigration Review, which falls under the Department of Justice. Although proceedings are administrative proceedings, they are adversarial in nature (meaning that there are two sides present in court that argue against each other, and the judge makes a final determination.) The immigrant facing removal may be represented by an attorney or accredited representative, but the majority of immigrants proceed without any representative. The opposing party against the alien in removal proceedings is the DHS, which is represented by the Office of Chief Counsel for ICE.

1-3

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

The immigrant charged with removal is considered the respondent in proceedings. The respondent must respond or answer to the charges brought against her by DHS. Because removal proceedings are administrative in nature, respondents do not have the same rights as they might in criminal proceedings. Nonetheless, noncitizens have the following rights in removal proceedings: • • • • • •

Right to representation at no expense to the Government. INA 240(a)(4)(A). However, mentally ill noncitizens may be able to secure an attorney. 1 Right to be provided a list of available legal services. 8 CFR 1003.61 Right to contact her consulate. 8 CFR 1236.1(e). Right to an interpreter. 8 CFR 1240.5 Right to examine and present evidence, call witnesses, etc. INA 240(a)(4)(B). Right to Due Process.

Once in removal proceedings, the chronology of a case is illustrated below. Assuming the noncitizen has a right to present a case before an immigration judge, the client will find themselves before an immigration judge in immigration court. 2 If the client is not detained, the case may take years to adjudicate. If detained, the case will likely take months, depending on the jurisdiction. Hearings before the immigration judge include bond hearings, master calendar hearings, status conferences, and individual or merits hearings (trial). Detained clients might have an opportunity to request a bond be set by an immigration judge. This would take place in a bond hearing. See Chapter 6 for more information on bond and detention. Otherwise, all proceedings begin with a master calendar hearing in which the respondent must appear and answer the charges. See Chapter 7 for more information about the master calendar hearing. In the master calendar hearing, the judge will also ask if the respondent has any relief from removal. Thereafter, an individual or merits hearing will be set to hear testimony and present evidence in support of the respondent’s case. After the judge issues a decision, either party may reserve appeal to the Board of Immigration Appeals (BIA). The BIA is an administrative appellate body. If an appeal is filed with the BIA, the BIA’s decision becomes the agency’s final decision. So long as the appeal is pending with the Board, the immigration judge’s decision is not final. An appeal must be filed within 30 days from the judge’s decision for the appeal to be heard. In some cases, it is possible to appeal the Board’s decision to the relevant Circuit Court of Appeals, though not all cases may be appealed. 3 However, if the respondent appeals a removal decision to a Circuit Court of Appeals, the noncitizen must also file a stay of removal or he may be deported despite a pending appeal (assuming the immigration judge ordered removal). Federal district courts generally do not have jurisdiction to hear immigration cases, though in limited circumstances may do so, such as hearing a habeas corpus petition challenging detention or certain citizenship claims.

1

Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011); see also Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013). Some immigrants do not have the right to removal proceedings before an immigration judge. Those facing expedited removal (see § 1.3.B); those who entered as a visa waiver entrant (see INA § 217(b)); and generally those that have already received an order of deportation or removal from the U.S. (see reinstatement provisions at INA § 241(a)(5)), with certain exceptions. 3 For example, a Circuit Court of Appeals does not have jurisdiction to hear a case appealing only a discretionary decision of the agency. See INA § 242(a)(2)(B). 2

1-4

Detention & Starting Removal Proceedings DHS initiates removal by issuing NTA, may detain client or release pending proceedings.

Immigration Judge (IJ) - Bond Hearing - Master Calendar Hearing(s) - Individual Hearing

Board of Immigration Appeals (BIA) Reviews appeals of IJ decisions filed within 30 days. Issues final order of removal.

Circuit Court of Appeals Reviews certain appeals filed within 30 days of BIA decision.

Supreme Court of the United States Reviews Court of Appeal decisions that it choose to accept.

District Court Hears habeas corpus challenging deportation/detention on constitutional or legal challenges grounds (including citizenship claims).

Most “arriving aliens” generally do not have a chance to present their case in removal proceedings, with important exceptions including lawful permanent residents or asylum seekers who successfully demonstrate a “credible fear.” Removal proceedings as just described are, for the most part, for those already within the U.S. that come to the attention of immigration authorities. Noncitizens presenting themselves at the border may be subject to “expedited removal” if they are not admissible. B.

Expedited Removal

Expedited removal allows DHS to remove arriving aliens without full removal proceedings. 4 This process can only be applied in limited circumstances. Generally, this provision allows DHS officers to remove a person at a port of entry (such as at the border or at an airport) who either does not have proper documentation or has committed fraud or falsely claimed U.S. citizenship. 5 In other words, a person who attempts to enter, who is inadmissible under INA § 212(a)(6) or INA § 212(a)(7). Under the statute, the Attorney General may apply this provision to anyone who has not been admitted or paroled and has been present in the U.S. for less than 2 years. In 2004, DHS used this provision to announce that expedited removal will be applied to those detected by immigration enforcement officers within 100 miles of the border within 14 days of entry. 6 To date, DHS has not designated a larger use of this provision. In the future, they could expand the 4

Expedited removal provisions can be found at INA § 235(b). Cuban citizens who arrive at U.S. ports-of-entry by aircraft are exempted from this first category of aliens subject to expedited removal under § 235(b)(1)(F) of the Act. 6 69 Fed. Reg. 48877, 48880 (2004). 5

1-5

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

geographic area or extend the amount of time after entry to which expedited removal would apply. 7 An officer of DHS has authority to issue an order of expedited removal. Most often officers within U.S. Customs and Border Protection (“CBP”), issue these orders—acting as law enforcement, prosecutor, and judge. Individuals facing expedited removal do not have a right to counsel or to a hearing before an immigration judge. Noncitizens subject to expedited removal who indicate an intention to apply for asylum or who assert a fear of persecution or torture are to be interviewed by an asylum officer and, if found to have a “credible fear,” must be referred to an immigration judge. DHS officers are required to read a script explaining that they have a right to speak to an asylum officer if they express a fear of return. 8 There have been various reports of abuses of this process, and as advocates, it is important that we educate the community about their right to express a fear of return and seek a private interview with the asylum office. 9 Individuals subject to expedited removal who claim lawful permanent resident, refugee, or asylee status or U.S. citizenship also may have their claims reviewed by an immigration judge. Additionally, juveniles are not to be removed through this process. Instead, they should be served an NTA and released into family care where possible. Individuals placed in expedited removal proceedings are detained without bail, and they are not eligible for parole except in very limited circumstances (i.e., as a matter of discretion for a medical emergency or for a law enforcement purpose). See Chapter 12 for more information on the asylum process. See Chapter 6 for more information on challenging prolonged detention. § 1.4

The Legal Framework for Removal Proceedings

Landmark legislation enacted on September 30, 1996 provided a new framework for U.S. immigration law. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) 10 amended the Immigration & Nationality Act (INA) to provide for a whole new structure to address entry, exclusion, deportation, and admission. After IIRIRA, we now have “removal” proceedings as described above. Prior to the passage of IRIIRA, immigration proceedings were divided into exclusion and deportation proceedings. This prior framework will be discussed briefly in § 1.6. A person in removal can either be charged as inadmissible or deportable. How that person is charged depends on whether they are seeking admission or have already been admitted into the United States.

7

Although the Trump administration refers to expedited removal and a possible expansion, to date, no such expansion has been designated. See Section 11(c) of Executive Order 13767; See also, DHS Memorandum, John Kelly, “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” Feb. 20, 2017. 8 See 8 CFR § 235.3(b)(2)(i). 9 See AILA Brief in BIA Artesia Case on Border Statements and CFI Q&A’s, AILA Doc. No. 15061201, Dated June 2, 2015. 10 Pub. L. 104-128, enacted 9/30/96; effective 4/1/97.

1-6

§ 1.5

The Concept of Admission

A key question in understanding what immigration laws will apply in a particular case is whether the person has been admitted into the United States. Persons already within the United States whom the government believes are here illegally may be placed in removal proceedings before an immigration judge. Depending on their current status in the United States, the immigrant will either be charged under the grounds of inadmissibility or the grounds of deportability. In order to know whether a person should be charged under laws of inadmissibility or deportability, we must find out whether they have been admitted to the United States. If one has already been admitted to the United States, the immigrant will be subject to grounds of deportability. If the person is present in the United States without ever having been admitted, they will be subject to the grounds of inadmissibility. Those that are seeking admission must show that they are admissible to the United States and have a basis for relief. For those that have already been admitted, the government must show that they are deportable. NOTE: In this chapter, because the grounds of inadmissibility and deportability come up before various agencies depending on the context, we will refer generally to DHS. In practice, however, you will need to identify the specific sub-agency with whom you are dealing, such as USCIS, ICE, or CBP. Some practitioners may refer to the INS (the Immigration and Naturalization Service), which has now been broken up and its functions are divided among the new agencies under DHS. In removal proceedings, the immigration judge is part of the Department of Justice, Executive Office for Immigration Review. The opposing party is represented by attorneys in the Office of Chief Counsel, under Immigration and Customs Enforcement (ICE), which is an agency of DHS. A.

Definition of Admission

Generally speaking, the terms “admission” and “admitted” are defined in INA § 101(a)(13). INA § 101(a)(13)(A) defines admission as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.” Those who have been admitted are subject to the grounds of deportability. In contrast, those who have not been admitted are considered “applicants for admission” and are subject to the grounds of inadmissibility. The grounds of inadmissibility are found at INA § 212(a), and the grounds of deportability are found at INA § 237(a). Though they are similar, they are not identical. The differences between them can have a serious impact on your client’s eligibility for relief from removal. Often we will use the word “people” instead of “noncitizens” or “aliens” in this manual. It is important to understand, however, that U.S. citizens are never subject to removal proceedings. On the other hand, all noncitizens—including lawful permanent residents—are potentially subject to grounds of inadmissibility or deportability, and therefore can legally be refused admission to or removed from the United States.

1-7

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

The Following People Are Subject to the Grounds of Inadmissibility: • • • • • •

People that are undocumented (those who entered without inspection); Applicants for admission at the border, such as nonimmigrant visa holders, those eligible for a visa waiver, and immigrant visa holders arriving for the first time; 11 Applicants for adjustment of status; Parolees—see INA § 101(a)(13)(B); Alien crewmen—see INA § 101(a)(13)(B); Certain lawful permanent residents, including conditional residents, who fall within INA § 101(a)(13)(C) at time of entry. See below.

A Note on Parole: The DHS has the power to “parole in” persons who are outside the United States or at the border and are charged with being inadmissible. A person who is paroled in can physically enter the United States, but legally her situation is the same as if she were waiting at the border, applying for admission. The DHS can grant humanitarian parole to bring in persons for humanitarian reasons, for example to permit them to obtain medical care in the United States. See INA § 212(d)(5). A person in the United States who is in the middle of applying for adjustment of status or for some other application can seek “advance parole,” which is advance permission to go outside of the United States and be paroled back in. See 8 CFR § 212.5(e). Additionally, some inadmissible persons who are detained at the border can be released from detention and come into the United States if the DHS grants parole. See 8 CFR § 212.5. The DHS position is that once in the United States all of these persons are still deemed to be seeking admission, and if placed in removal proceedings will be subject to the grounds of inadmissibility. The Following People Are Subject to the Grounds of Deportability: • • • • • B.

Nonimmigrant visa holders within the United States following a lawful admission; People admitted as visa waiver entrants; Visa holder and visa waiver overstays in the United States; Refugees 12 Lawful permanent residents, including conditional residents, except those who fall within INA § 101(a)(13)(C). Lawful Permanent Residents Who Travel

Generally, a lawful permanent resident travels freely, and is not making a new admission upon reentry into the United States. Usually, LPRs are not considered to be making a new application for admission each time they return from a trip abroad. Most of the time, therefore, they are subject to the grounds of deportability rather than the grounds of inadmissibility.

11

A person with an immigrant visa from a U.S. Consulate abroad does not become a lawful permanent resident until and unless he or she is admitted at a U.S. border while the immigrant visa is valid, and within six months of the date the visa was granted. See 22 CFR §§ 42.72-42.64(b). 12 See Matter of D-K-, 25 I&N Dec. 761 (BIA 2012), holding that refugees are subject to the grounds of deportability because they have been admitted to the U.S.

1-8

However, there are circumstances in which an LPR will be considered an applicant for admission upon return from a trip abroad. These circumstances are described in INA § 101(a)(13)(C) and listed below: 1. The special rules governing admission of returning lawful permanent residents under INA § 101(a)(13)(C) When lawful permanent residents travel abroad and then come home to the United States, they generally will not be considered to be “seeking admission” at the border, and will not be subject to the grounds of inadmissibility. There are six exceptions to this rule. Under INA § 101(a)(13)(C), a permanent resident returning from a trip outside the United States is seeking admission if he or she: 1. 2. 3. 4. 5.

has abandoned or relinquished permanent resident status; has been absent from the United States for a continuous period of more than 180 days; has engaged in illegal activity after departing the United States; has left the United States while under removal or extradition proceedings; has committed an offense identified in INA § 212(a)(2) (grounds of inadmissibility relating to crimes), unless the person was granted § 212(h) relief or § 240A(a) cancellation of removal to forgive the offense; OR 6. is attempting to enter or has entered without inspection. Lawful permanent residents who come within any of these six exceptions will be in the same position as other noncitizens seeking admission and will be considered “arriving aliens.” In order to be admitted, they must prove that they do not come within a ground of inadmissibility. Example: Marc is a permanent resident. In 2012 he travels to France for two weeks to attend a conference and then returns to the United States. He has tuberculosis, which is a health ground of inadmissibility. As a returning permanent resident, Marc is deemed not to be “seeking admission” at the U.S. border. Therefore, although the DHS knows that he is inadmissible for tuberculosis, it cannot charge him with being inadmissible and place him in removal proceedings as a person “seeking admission” because his tuberculosis is not one of those things listed in INA § 101(a)(13) that would make him an “applicant for admission.” Marc should lawfully re-enter the United States without triggering removal proceedings. Legally, Marc has not made a new admission. His tuberculosis is not one of the circumstances that would cause the government to treat him as an arriving alien. Example: What if LPR Marc takes another trip and this time stays outside the United States for 190 days? In that case, when he returns he will be “seeking admission,” for having been absent for more than 180 days under INA § 101(a)(13)(C)(ii). The DHS can place him in removal proceedings with a Notice to Appear and charge him with being inadmissible for his TB in addition to charging him with abandonment of his residence. Marc might or might not meet the requirements for a discretionary medical waiver or cancellation of removal.

1-9

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

2. The continuing validity of entry, re-entry, and the Fleuti exception There is a limited exception for lawful permanent residents who were convicted of an offense described in INA § 101(a)(13)(C)(v) before April 1, 1997. 13 The law before April 1, 1997 under deportation proceedings allowed lawful permanent residents to make “brief, casual and innocent” departures without seeking a new admission to the United States. In a recent Supreme Court case, the Court held that those that pled guilty to an offense prior to the change in law should be able to rely on the law as it was. Thus, those that would have a conviction described in INA § 101(a)(13) before April 1, 1997 will not be considered to be seeking an admission if they can show their departure was brief, casual and innocent. Before IIRIRA came into effect on April 1, 1997, there were different rules governing when a lawful permanent resident returning from a trip abroad made an entry (just as IIRIRA created special rules for when a returning lawful permanent resident is seeking admission). Entry is a term of art with a long history of judicial interpretation. Before 1997, the definition of “entry” included a presumption that all lawful permanent residents are seeking re-entry to the United States upon return from a trip abroad. In Rosenberg v. Fleuti, 14 the Supreme Court created an important exception. It stated that permanent residents can rebut the presumption that they are making an entry upon return from a trip abroad if they establish that the trip was brief, casual, and innocent and not a meaningful departure interrupting their residency. (In contrast, the statutory definition of admission in INA § 101(a)(13), effective April 1, 1997, presumes that returning lawful permanent residents are not seeking admission unless they come within one of the six exceptions. 15 These exceptions do not look exclusively at the character of the absence, but also look to bad behavior on the part of the resident.) The 1997 statutory definition of admission replaced the statutory language defining entry in the Act. 16 The old Fleuti definition applies to a lawful permanent resident who is charged with making a new “admission” upon return to the U.S. now, based on a conviction by plea from before April 1, 1997. Those who pled guilty before that date, traveled, and then sought to re-enter the United States after that date should still benefit from the Fleuti doctrine and not be considered as applicants for admission. Example: Mr. Camins is a lawful permanent resident who was convicted of a moral turpitude offense in January 1996. This was before the new definition of admission took effect on April 1, 1997. In December 2000 he went abroad for three weeks to visit a sick relative. Upon his return, the government asserted that he was making a new admission to the United States under INA § 101(a)(13), because he was permanent resident who traveled while inadmissible for crimes. The court disagreed and held that the new statutory definition did not apply, because this would attach new legal consequences to 13

See Vartelas v. Holder, 132 S.Ct. 1479 (March 28, 2012), in which the U.S. Supreme Court held that INA § 101(a)(13)(C)(v) did not apply to LPRs with convictions that pre-dated April 1, 1997, the effective date of IIRIRA. These LPRs are covered under pre-IIRIRA law, in which they are not considered to be making a new admission upon return to the U.S. as long as the departure was “brief, casual, and innocent.” 14 Rosenberg v. Fleuti, 374 U.S. 449 (1963). 15 See INA § 101(a)(13(C). 16 IIRIRA § 301(a), amending INA § 101(a)(13), 8 USC § 1101(a)(13).

1-10

the LPRs’ prior guilty pleas (an inability to travel abroad without becoming inadmissible) and thus be impermissibly retroactive if applied to such residents. The court rejected the government’s argument that IIRIRA was not impermissibly retroactive because it was enacted before Mr. Camins decided to travel abroad; it held that Mr. Camins relied on the old law at the time he pleaded guilty, in 1996. Example: Susie was admitted as a permanent resident in 1989. In 2002, Susie committed one crime involving moral turpitude that would make her inadmissible. (A theft offense with a 7-month sentence.) Luckily, while she is here in the U.S., as a permanent resident Susie is subject to the grounds of deportability. She is not deportable for this one offense and is not subject to removal. Inadmissibility does not impact Susie as a permanent resident in the U.S. But Susie decides to take a two-week trip in 2013 to visit her mother in Peru. Under INA § 101(a)(13), Susie has a crime that would make her inadmissible, and thus by travelling, she is now considered to be seeking an admission, and is inadmissible. She can be placed in removal proceedings as an arriving alien, and subject to grounds of inadmissibility. Example: If instead, Susie had committed the crime and pled guilty in 1995, then took a two week trip in 2013 to visit her mother, under Vartelas, she would argue that her trip was brief, casual and innocent—it was just a short trip to visit her mother—and that she is not subject to INA § 101(a)(13) because her conviction was before April 1, 1997. This exception does not apply to LPRs who are found to be seeking admission for other reasons, such as a trip over 180 days, or subject to non-crime grounds of inadmissibility. See INA § 101(a)(13)(C)(ii). This Fleuti exception only applies where the returning resident has been convicted of an offense triggering inadmissibility prior to April 1, 1997. C.

False Admission as a U.S. Citizen Compared to Admission on a Fraudulent Visa

A noncitizen who gains admission to the United States by pretending to be a U.S. citizen has not yet been “admitted,” because the person was not admitted and inspected as an alien. In most jurisdictions a noncitizen who has used a fraudulent visa (e.g., a fake or borrowed border-crossing card or foreign passport) has been admitted, even though the admission was not lawful. After the new definition of admission was enacted with the passage of IIRIRA, there was concern that INA § 101(a)(13)(A) would result in a finding that such an entry would not be an admission. Indeed, in Orozco v. Mukasey, the Ninth Circuit found that someone who had entered the United States using someone else’s permanent resident card had not been admitted as defined in INA § 101(a)(13)(A). 17 The Ninth Circuit later granted the parties’ joint motion to dismiss the case, thus vacating its published decision following the BIA’s grant to reopen the case. 18 Subsequently, in Matter of Quilantan, 19 the BIA held that, at least for purposes of an adjustment under INA § 245(a), an “admission” only requires “procedural regularity.” Thus, under Matter of Quilantan, someone who enters fraudulently using another’s permanent resident card or other false document 17

521 F.3d 1068 (9th Cir. 2008). Orozco v. Mukasey, 546 F.3d 1147 (9th Cir. 2008); www.legalactioncenter.org/litigation/adjustmentstatus-when-admission-involved-fraud-or-misrepresentation#cases. 19 Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010). 18

1-11

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

is considered admitted for purposes of adjusting status to lawful permanent resident under INA § 245(a). It is unclear in what other contexts procedural regularity might be sufficient. § 1.6

Deportation and Exclusion Proceedings before IIRIRA

Court cases started before April 1, 1997 remain under the prior structure which had two types of proceedings—deportation and exclusion proceedings—instead of removal proceedings. Understanding the system that was in place before IIRIRA went into effect is helpful in understanding pre-IIRIRA case law. In many instances, this case law is still the guide for establishing who is deportable and admissible. Also, because cases that were begun before April 1, 1997 will continue under the old system, in deportation or exclusion proceedings, it is useful to understand the prior framework. Removal proceedings under IIRIRA began on April 1, 1997, which combined the prior deportation or exclusion proceedings into one single proceeding, though within that proceeding the noncitizen is either charged with being “inadmissible” or being “deportable.” The crucial difference between the old and the current system is the difference between entry and admission. Before IIRIRA, whether the person faced the grounds of deportation or exclusion depended on whether the person made an entry into the United States—not whether the person was admitted. An entry is different from an admission. Entry includes a person coming into the United States legally or illegally, with or without inspection. It does not include a person who is formally stopped by (DHS) inspectors at the border or port of entry and refused admission. (Under preIIRIRA law, such people frequently were paroled in to the United States, but that was still not considered an entry, because they had been stopped). An admission is an entry after DHS inspection. Under the old law, a person who made an entry faced the grounds of deportation. Only people who were refused admission by INS faced grounds of exclusion. In practical terms, IIRIRA changed what happens to people who entered without inspection. Before IIRIRA, those people had an advantage: because they had made an entry, the INS had to prove that they were deportable. Under current removal proceedings, people who enter without inspection have a disadvantage: since they have not been inspected, they are considered to still be seeking admission—even if they have lived in the United States for years. Under the current framework, this means that they have to prove that they don’t come within a ground of inadmissibility. Example: Mel and Sam entered the United States without inspection in 1990. The INS arrested Mel in April 1996. Because he had made an entry, he was placed in deportation proceedings and the INS had to prove that he came within a ground of deportation. The INS arrested Sam in 2000, when removal proceedings were in effect. … In 2000, in determining whether Sam would be subject to the grounds of inadmissibility or the grounds of deportability, the test is whether Sam was admitted, not whether he made an entry. Because he had not been admitted, Sam was placed in removal proceedings in which he had the burden of proving that he did not come within a ground of inadmissibility.

1-12

Under pre-IIRIRA law, the grounds of inadmissibility were referred to as “grounds of exclusion.” There is no real difference between the terms “grounds of inadmissibility” and “grounds of exclusion.” If you read court opinions about cases that started before 1997, they will refer to whether the person came within the grounds of exclusion or deportation, instead of grounds of inadmissibility or deportability. Within this framework, there were two types of hearings: deportation hearings, in which the Immigration and Naturalization Service (INS) had to prove the person was deportable, and exclusion hearings, in which the person had to prove that he or she was admissible. Generally, the INS had the burden of proving someone was deportable while the non-citizen had to prove they were not excludable in exclusion proceedings. A person in deportation proceedings will have received an Order to Show Cause (OSC) instead of a notice to appear. A sample OSC is included at Appendix A. In exclusion proceedings, the person received Form I-122, “Notice to Applicant for Admission Detained for Hearing.” If an old case is reopened, or a prior deportation case is remanded after an appeal, that person is still in deportation proceedings. For this reason, you might still come across deportation cases and OSCs in current practice. § 1.7

The Grounds of Inadmissibility and Grounds of Deportability

The grounds of deportability are contained in § 237(a) of the Immigration and Nationality Act (INA). [Until April 1, 1997, they were contained in former § 241(a) of the INA]. The grounds of deportability are a list of reasons that an alien, who has been admitted, can be removed from the United States. A person who comes within a ground of deportability is deportable. Grounds of deportability include certain crimes, including aggravated felonies, terrorism, and violating immigration laws, such as overstaying a visa. The grounds of deportability will apply to those who have been admitted and are within the United States. The grounds of inadmissibility (formerly called grounds of exclusion) are contained in INA § 212(a). These grounds are a list of the reasons an alien can be refused admission to and/or removed from the United States. A person who comes within a ground of inadmissibility is inadmissible. These grounds include health-related concerns, criminal grounds, lying to government officials to gain a benefit, risk you will become dependent on government welfare programs, unlawful presence in the United States, terrorism and certain crimes. The grounds of inadmissibility apply both at the border and in removal proceedings for persons seeking admission. They are also relevant requirements to establish eligibility for many immigration applications, including adjustment of status, registry, the old amnesty programs, Temporary Protected States (TPS), and non-immigrant visas. Chapters 2, 3, and 4 discuss grounds of inadmissibility and deportability in detail. ADVOCACY TIP: Read the INA (the “Act”) as Well as This Manual. Practitioners should reference the statute regularly to determine whether a particular ground applies. You can become familiar with the grounds of inadmissibility at INA § 212(a). The grounds of deportability are at INA § 237(a). Although they are not something one would memorize, it is important to become familiar with where to find things in the statute and to consult the wording of various provisions regularly.

1-13

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

It is important to form your own understanding about what the statute says. You might find arguments by thinking about the wording of the actual statute. Interpretation of the statute is also informed by case law and agency regulations. § 1.8

Burdens of Proof

Burden of proof is a complex and confusing subject, largely because the burden of proof shifts depending on the status of the person involved, and the situation in which she finds herself. The following is a brief synopsis of the differing burdens of proof, which are dealt with in more detail in subsequent chapters in the context of specific grounds of removability and specific forms of relief from removal. A.

The Burden of Proof of Alienage Falls on the Government

For noncitizens found within the United States without being admitted or paroled, the government bears the burden of proving alienage. 8 CFR § 1240.8(c); see also Murphy v. INS. 20 The evidence required to prove alienage is not specified by regulation. Even if the person has submitted an application for relief from removal, the information in that application cannot be held to be an admission of alienage, 8 CFR § 1240.11(e). 21 Once alienage has been established, the noncitizen must prove by clear and convincing evidence that he or she is lawfully in the U.S. pursuant to a prior admission, or is clearly and beyond a doubt entitled to be admitted to the U.S. and is not inadmissible as charged. 8 CFR § 1240.8(c). 22 For noncitizens in removal proceedings, once alienage has been established, the burden of proof shifts to the noncitizen to show the time, place, and manner of entry. INA § 291; see also Matter of Benitez. 23 B.

The Burden of Proof under the Inadmissibility Grounds in INA § 212(a) 1. General rules for noncitizens

Under INA § 240(c)(2), noncitizens who are subject to the grounds of inadmissibility, which includes those who are applying for adjustment of status under § 245, bear the burden of proving either: 1. that they are “clearly and beyond doubt entitled to be admitted and not inadmissible under section 212” or, 2. by clear and convincing evidence, that they are lawfully present in the U.S. pursuant to a prior admission.

20

54 F.3d 605 (9th Cir. 1995) (Holding that the burden of proving alienage always remains on the government because it is a jurisdictional matter). 21 Except for asylum and withholding applications filed before USCIS (affirmative applications) on or after January 4, 1995. Defensive applications (first filed before EOIR) cannot be used to establish alienage. 22 Murphy v. INS, above; see also Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001). 23 19 I&N Dec. 173 (BIA 1984).

1-14

2. Lawful permanent residents and the burden of proof under the inadmissibility grounds Despite the general rule governing the burden of proof for those deemed “applicants for admission” under IIRIRA, permanent residents who are subject to the grounds of inadmissibility as arriving aliens have more rights than other noncitizens. For example, under INA § 235(b)(2), a returning resident charged as an “arriving alien” has the right to a removal hearing under INA § 240. And the government bears the burden of proof in removal proceedings where a lawful permanent resident is charged with a ground of inadmissibility as an arriving alien. Matter of Rivens. 24 Furthermore, in Kwong Hai Chew v. Colding, 25 and Landon v. Plasencia, 26 the U.S. Supreme Court held that LPRs returning from a trip abroad are entitled to due process protections, meaning that they have the right to a full and fair hearing and the right to confront the evidence against them. In Kwong, the Supreme Court additionally held that if a returning lawful permanent resident is to be deprived of his status, the government may only do so in a proceeding in which the government is both the moving party and bears the burden of proof. 27 No statutory scheme invented by Congress can override these constitutional protections. C.

The Burden of Proof under the Deportability Grounds in INA § 237

For noncitizens who are subject to the grounds of deportability, the government bears the burden of proving, by clear and convincing evidence, that the noncitizen is deportable. INA § 240(c)(3)(A); 8 CFR § 1240.8(a). “No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” 28 In addition, INA § 240(c)(3)(B) contains specific rules governing the type of evidence required to prove the existence of criminal convictions. The government bears the burden of proving both (1) the existence of a criminal conviction; and (2) that the conviction triggers a ground of deportability or inadmissibility. These rules, and case law governing the establishment of deportability based on a criminal conviction, are covered extensively in Chapter 5 and Chapter 7. Under the Supreme Court case, Woodby v. INS, 385 U.S. 276 (1966), the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence. It’s not clear whether there is a difference between “clear and convincing” and “clear, unequivocal and convincing,” but since the Woodby decision is constitutionally based and is law of the Supreme Court, it should be the required standard of proof. In any event, there are some interesting examples of how the standard of proof for deportability has been applied in practice. For example, in Matter of Pichardo, 29 the BIA held that the government failed to meet its burden of proof when the criminal court document offered to prove

24

25 I&N Dec. 623 (BIA 2011). See also Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 26 Landon v. Plasencia, 459 U.S. 21 (1982). 27 Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). 28 Kwong Hai Chew, supra; INA § 240(c)(3)(A). 29 21 I&N Dec. 330 (BIA 1996). 25

1-15

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

a firearms conviction did not specify that the weapon was a firearm, even where the respondent testified that he used a gun. In Matter of Vivas, 30 however, the BIA held that where the government has made a prima facie case for deportability, the noncitizen may be required to submit evidence that rebuts the government’s case if the evidence in question is within the noncitizen’s knowledge and control. In Matter of Vivas, the respondent was a permanent resident who supposedly obtained his residence through a U.S. citizen spouse. However, the government produced a witness claiming that the birth certificate allegedly belonging to the respondent’s spouse was actually that of the witness, and that she had never met the respondent. Under these circumstances, the BIA affirmed the immigration court’s decision finding the respondent deportable. Similarly, in Matter of Guevara, 31 the BIA affirmed that once the government submits prima facie evidence of deportability, the burden of proof shifts to the respondent to rebut that evidence. Matter of Guevara also held, however, that the government cannot meet its burden of proof solely based on the respondent’s assertion of his 5th Amendment right to remain silent. In other words, where a noncitizen is subject to the deportability grounds, the government has to have submitted clear and convincing, credible proof of deportability, which the noncitizen then has the burden of rebutting, before the noncitizen’s silence can be used against him. 32 Circuit Court Cases. There is a conflict in the Circuits over how the clear and convincing, or clear, unequivocal, and convincing standard for establishing deportability should be interpreted. In the Eleventh Circuit, the court affirmed the use of a document that contained several ambiguities to establish deportability for a firearms offense by clear and convincing evidence, reasoning that under the “substantial evidence” test the court had to affirm the BIA’s decision unless there is no reasonable basis for that decision. Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004). Contrast this decision with the BIA’s decision in Matter of Pichardo, above. The Second Circuit, in Francis v. Gonzales 33 expressly disagreed with the Eleventh Circuit’s decision in Adefemi v. Ashcroft. According to the Second Circuit, the courts must reverse a finding of deportability where “any rational trier of fact would conclude that the proof did not rise to the level of clear and convincing evidence.” 34 Practitioners should argue that in view of the statutory scheme as well as BIA precedent, courts of appeal should follow the reasoning in Francis v. Gonzales rather than Adefemi v. Ashcroft when interpreting the clear and convincing or clear, unequivocal and convincing standard for establishing deportability. D.

The Burden of Proof in Applications for Discretionary Relief

Burden of proof also comes up in the context of applications for relief from removal. If the government successfully establishes deportability or inadmissibility for a permanent resident, the next step in the removal hearing process is to determine if your client may be eligible for some form of relief from removal, and if so to apply for that relief.

30

16 I&N Dec. 68 (BIA 1977). 20 I&N Dec. 238 (BIA 1991). 32 Matter of Guevara; see also Matter of Carrillo, 17 I&N Dec. 30 (BIA 1979). 33 Francis v. Gonzales, 442 F.3d 131, 138-39 (2nd Cir. 2006). 34 Id. 31

1-16

The burden of proof for determining eligibility for relief from removal is quite different from the burdens of proof for establishing deportability or inadmissibility, and should not be confused with them. Under INA § 240(c)(4)(A): An alien applying for relief or protection from removal has the burden of proof to establish that the alien--(i) satisfies the applicable eligibility requirements; and (ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion. In addition, the applicant must submit information or documentation to support the application, as required by law, regulation, or the instructions in the application form. § 240(c)(4)(B). Where the immigration judge determines that the applicant should provide evidence that corroborates otherwise credible testimony, that evidence must be provided unless the applicant shows he or she does not have it and cannot reasonably obtain it. § 240(c)(4)(B). Furthermore, 8 CFR § 1240.8(d) states that a noncitizen: … shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. What this means in the context of applications for relief from removal has been the subject of some controversy, and case law is still developing on this issue, particularly in the Ninth Circuit. To summarize, in 2012, the Ninth Circuit decided that respondents bear the burden of proving that a conviction does not trigger deportability or inadmissibility which would disqualify the noncitizen from eligibility for relief from removal. 35 The Ninth Circuit held that this burden included a requirement that the respondent produce all “reviewable” conviction records, and that if the reviewable record is inconclusive, the respondent has not met her burden. 36 However, the U.S. Supreme Court has subsequently rendered decisions in two cases that are incompatible with Young: Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, (2013) and Descamps v. Holder, 186 L.Ed.2d 438, 133 S.Ct. 2276 (2013). The Supreme Court stated that whether a conviction has immigration consequences is clearly a legal question, and therefore no “burden of proof” exists for this issue. 37 If the government fails to establish that a conviction results in deportability or inadmissibility, for example for an aggravated felony or a crime involving moral turpitude, then that conviction cannot subsequently be used as a basis for one of the bars to relief from removal on the same grounds.

35

Young v. Holder, 697 F.3d 976 (9th Cir. 2012); see also Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). 36 Young v. Holder, 697 F.3d 976, 989-990 (9th Cir. 2012). 37 Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, (2013).

1-17

Chapter 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 1

Immigrant Legal Resource Center June 2017

Example: Jessie first obtained legal status in the U.S., as an LPR, in 2005. In 2010, Jessie was convicted of “unlawful possession of a weapon” and in 2013, Jessie was convicted of “possession of methamphetamine.” Jessie is placed in removal proceedings and he is charged with being deportable for a drug offense. When Jessie applies for LPR cancellation of removal, the government cites Young v. Holder, and claims that Jessie must not only produce all the records of his convictions, but also has the burden of proving that the 2010 weapons conviction is not a “firearms” conviction and does not therefore trigger the “stop-time” bar for LPR cancellation as a deportable offense. If Jessie is not able to prove the weapons conviction did not involve a firearm, through the “reviewable” records of his conviction, and the record is inconclusive, then under Young, Jessie loses and does not qualify for LPR cancellation. However, after Moncreiffe was decided, Jessie now has a great argument that Young was implicitly overruled, and that (1) Jessie does not have the burden of producing conviction records and (2) whether Jessie’s weapons conviction is a deportable offense is solely a legal question. Under the categorical approach and the “minimum conduct necessary to convict” standard outlined by the Supreme Court in these two recent decisions, Jessie’s conviction should not render him deportable or ineligible for relief from removal—since the minimum conduct necessary to convict Jessie of this offense includes weapons that are not firearms. It does not matter whether Jessie actually used a firearm or not—what matters is that the statute broadly covered both firearms and other types of weapons, in one element, “weapons,” and as a result, a conviction under that statute is categorically not a deportable “firearms” conviction. The BIA in Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), 38 withdrew from its earlier Matter of Lanferman decision in part, as inconsistent with Descamps and Moncreiffe. The BIA held in Chairez that the government has the burden of proving a conviction exists and whether or not it is “divisible” as to deportability, but did not address the issue in Young, with regard to the burden of proof to establish eligibility for relief where the record of conviction is inconclusive. This means, that the BIA will at minimum require the government to prove whether a conviction exists, and whether it is a categorical match or not for a ground of deportability or inadmissibility, and also whether or not the statute is divisible. Issues around burdens of proof, both in proving removability and establishing eligibility for relief will arise in various chapters of this manual. See Chapter 7 for contesting removability and Chapter 9 for a discussion of relief. The categorical approach and issues of establishing deportability due to a conviction is discussed in Chapter 5.

38

On October 30, 2015, the Attorney General ordered the Board to refer this matter to her for review in Matter of Chairez and Sama, 26 I&N Dec. 686 (A.G. 2015). This 2014 decision is now referred to as “Chairez I” and the subsequent decision, Matter of Chairez (“Chairez II”), 26 I&N Dec. 478 (BIA 2015). On September 28, 2016, the BIA issued a new decision, Matter of Chairez, 26 I&N Dec. 819 (BIA 2016), in light of Mathis v. United States, 136 S. Ct. 2243(2016). Chairez I and Chairez II are superseded to the extent that they are inconsistent with Descamps and Mathis. See Chapter 5 for more information on the categorical approach.

1-18

CHAPTER 2 MEETING YOUR CLIENT AND ASSESSMENT OF THE CASE

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: Introduction ........................................................................................................ 2-1 Attorney-Client Relationship: Some Basics ....................................................... 2-2 The Client Interview........................................................................................... 2-3 A Closer Look at the Initial Meeting and the Intake Sheet ................................ 2-6 Subsequent Information-Gathering Meetings .................................................... 2-7 Working with Vulnerable Clients....................................................................... 2-8 Analyzing Your Client’s Case .......................................................................... 2-10 Educate Your Client on His or Her Case.......................................................... 2-11 Ask the Client and His or Her Family to Do Work on the Case ...................... 2-12 Case Management ............................................................................................ 2-14 Freedom of Information Act (FOIA) ................................................................ 2-16 CBP FOIA Requests......................................................................................... 2-17 OBIM FOIA Requests ...................................................................................... 2-17 Expedited FOIA Requests for Clients in Removal........................................... 2-17 Challenging the FOIA Response ...................................................................... 2-18 Subpoenas......................................................................................................... 2-19 Criminal Documents ........................................................................................ 2-20

§ 2.1

Introduction

Approaching your case in an organized and strategic way is critical. The following chapter provides background and practice tips regarding how to best ready your case. This chapter suggests strategies from the client interview to general case management to ensure that you are thorough in your approach to assessing a case and preparing case strategy. This chapter includes important reminders about involving your client in the process as well as other important steps to case assessment and preparation, including discovery tips. A good working relationship with your client is critical in developing a strategy for a client in removal proceedings. It is impossible to meet your client’s needs if you don’t know their goals. Example: Sandra overstayed her visitor visa and is now facing removal. After reviewing the NTA in her case, you reach the conclusion that the government has not charged Sandra correctly. They did not realize she initially entered with a visa and charged her under INA 212(a), the grounds of inadmissibility. As a lawyer, your first thought is to contest the charges, and force the government to charge her correctly. However, after speaking with Sandra, her goal is to get back to her home country as soon as possible to visit her sick mother. She would like to later consular process through her new fiancé. For Sandra, spending time contesting charges, when she has a plan to return to her home

2-1

Chapter 2

§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8 § 2.9 § 2.10 § 2.11 § 2.12 § 2.13 § 2.14 § 2.15 § 2.16 § 2.17

country is not in her best interest. In fact, after reviewing her time in the country, you realize that if she takes voluntary departure soon, she will not be barred from returning for unlawful presence. See Chapter 3, for more information on the unlawful presence bars. Sandra’s preferred strategy is to take voluntary departure at her first master calendar hearing. After speaking with Sandra, you contact the assistant chief counsel assigned to her case and provide information about Sandra’s visa in advance. You explain that she wants voluntary departure at the first hearing.

Chapter 2

PART ONE: FROM THE BEGINNING: CLIENT INTERVIEW AND CLIENT RELATIONSHIP § 2.2

Attorney-Client Relationship: Some Basics

The purpose of the attorney client relationship is to work mutually to come to the best possible legal outcome in the client’s case. Whereas the client has expertise in many of the factual aspects of the case, the attorney maintains the legal and procedural knowledge. In entering into the attorney-client relationship, keep the following principles in mind: •

Client Trust: Be clear that everything that is said to you in private communication will remain private by law. Building client trust is essential in effectively representing your client so prioritize this throughout your representation.

•

Your Role: This should be laid out and discussed when signing the retainer or engagement letter. 1 Among other things, cover your duty to communicate with your client, maintain confidentiality, and zealously represent them.

•

Your Client’s Role: This should also be laid out and discussed with the engagement letter. Among other things, discuss your client’s obligation to keep you updated on current contact information, to be honest throughout, to timely attend meetings and any financial obligations on your client’s part. 2

•

Build Realistic Expectations: Thoroughly explain various scenarios regarding the outcome of the case and do not promise anything you cannot deliver. For example, do not promise that you can deliver a certain bond or that you will win a certain type of case. It is better for your client to understand and appreciate the potential for the worst outcome (usually an order of removal) and to plan accordingly if the worst happens. If your client is detained, explain to your client that they may have to fight their case detained, potentially for the duration of their case.

1

A contract detailing the terms and expectations related to representation. Even if you are representing your client pro bono, you should have a signed engagement letter. 2 Even for pro bono client, you may want your client to be responsible for certain financial obligations such as court filing fees.

2-2

Tab Position 1

Immigrant Legal Resource Center June 2017

Did You Know? Only attorneys and accredited representatives that have been accredited by the Department of Justice may represent clients before the immigration court. 3 (Law students under the supervision of an attorney may also appear.) Note, if you are not an attorney and are offering advice to immigrants, it is important to refer them to authorized representatives for advice and representation for proceedings. § 2.3

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The Client Interview

The following are general considerations before a client meeting:

2. Language Barriers and the Use of Interpreters. You and your client must be able to speak freely. If you do not speak the same language as your client, consider whether or not an interpreter might be helpful. Some clients may have difficulty opening-up to interpreters who are strangers to them; and people from the client’s culture can make the client feel more or less comfortable, depending on the nature of the case. If you and the client decide to use an interpreter, find someone who is fluent in both languages. This could be someone the client already knows and trusts, such as a family member. However, be sensitive to the fact that having family members at the interview may prevent some clients from speaking about delicate subjects, such as family history, domestic violence in the home or previous arrests. Your agency might have staff members who can translate. You should compile a list of interpreters who work in your area. Example: Mary has come to every meeting with her daughter, Eva. She has told you in front of Eva that she is more comfortable with Eva there. Mary is not fluent in English and her daughter often translates for her at her attorney meetings. According to Eva, Mary has no convictions. Based on this, you decide that Mary is eligible to file her application for adjustment. Just before the interview on her case, Mary comes in by herself very agitated. With the help of an interpreter, you learn Mary has a prior conviction for theft that she did not disclose because her daughter was present at every meeting.

3

On January 18, 2017, new regulations governing the requirement and procedures for the accreditation program took effect. “BIA accredited representatives” are now referred to as “DOJ accredited representatives”; www.justice.gov/eoir/recognition-and-accreditation-program, updated July 25, 2017 (last viewed July 2017).

2-3

Chapter 2

1. Using a Meeting Agenda. When your meetings with a client have a clear purpose, it will help you and your client stay on time and on task. Review the agenda with your client. This will let him or her know what to expect and will clarify for her the purpose of your meeting, which may engage her more in her role as your partner in her case. If there are delicate subject matters to be discussed during the meeting, warn the client in advance to let her prepare; and if there is such a subject matter you will not be covering, let her know to put her at ease. You should also ask for his or her input so she can ask questions or express concern.

Chapter 2

While Mary told you she was more comfortable with her daughter translating, it is important to have a couple meetings with Mary without her daughter present. Sometimes clients really prefer to have another person present to make them more comfortable; nonetheless, it is critical to screen the client at some point privately with the help of a trusted translator. Additionally, this impacts the confidentiality of the meeting, and this must be explained to the client. There is now a third party that can share information regarding the case. Any official translator must understand the confidential nature of the meeting and sign a contract that they will not share information outside the meeting. Example: Saw Htoo Myint is from Burma and comes to your office for immigration help. He does not speak English and you call an interpreter on the phone and put him on speakerphone. As a result of that meeting, you don’t believe Saw Htoo Myint has a claim for asylum, although he said he was afraid to return. He mentions no activities against the government and no direct contact with authorities in Burma. Saw Htoo Myint comes back a week later with a friend of his from church. In this meeting, you learn that he was in fact questioned by authorities several times in Burma and openly protests against the military regime. He travelled to the U.S. on a false passport because the government would not issue a real one to him. You ask him why none of this came up in your first meeting, and he explains that he did not know who the person was on the phone. He was afraid that the person on the phone would share his information with the Myanmar government and he would be harmed. Sometimes, professional translation services are your most reliable source of translation, but you rely on them to translate over the phone. Be aware that this causes problems of trust for many new clients, and you might need to lay some groundwork to make the client comfortable. Additionally, relying solely on a “friend” when you cannot speak the language raises concerns about whether the person is translating accurately or explaining a story the way she thinks you want to hear it. Having both a telephonic interpreter and a friend present for the first couple meetings might be a way to establish trust with your client and give you confidence you are getting an accurate translation. It is important to explain exactly why the person is on the phone, the role he plays, any agreements about confidentiality, etc. It is also best to not to identify the client by name with the interpreter, if your client is concerned. PRACTICE TIP: Conduct a few initial meetings with different translators in cases where you do not speak the best language of your client. Meeting your client with a family member or friend to help translate might make your client feel more comfortable, but you might miss important information. Meeting your client with the help of a professional translator, not related to the case, gives both you and your client an opportunity to address any concerns raised by using the informal translator selected by your client. 3. Privacy and Confidentiality. In order to speak comfortably, you should not be interrupted. Try not to take phone calls during a client meeting or be interrupted by coworkers. As much as possible, try to meet with your client in a quiet, private place where the client will not be overheard by others. Not only is this important for reasons of preserving attorney-client confidentiality, it will also make your client more comfortable

2-4

Tab Position 1

Immigrant Legal Resource Center June 2017

to share private information. Regardless of the setting, always remind the client that what she shares with you is confidential and will not leave your office. If using an interpreter, it is important that the interpreter understand the confidential nature of the meeting. This might be another reason why relying on a family member of the client to translate could be problematic for your client. A family member might share information outside of the office, or the client might not disclose important information a mentioned above.

5. Obtain Important Documents from Your Client. In addition to eliciting oral information from your client through the interview, ask your client to bring relevant documents to your initial meeting. To start, you will want the following documents: The Notice to Appear (NTA); custody determination documents; any and all documents from immigration; and any and all criminal documents. You will have a more productive first meeting if you can consider prior immigration documentation to determine status and possible options. Additionally, as you meet with your client and hear her story for the first time, it is helpful to keep a running list of documents that might be available and help prove certain aspects of your client’s case. 6. Obtain Important Signatures. This is important if you see your client infrequently and particularly if your client is detained. Have a checklist of documents that you need signed by the client once you have decided to represent them. For example, an engagement letter, a general release of information, FOIA Form G-639, Form G-28 (notice of representation before DHS), and a HIPPA release for medical documents, though some hospitals require their own. The G-28 is especially important if your client is detained and you will need to speak to detention officers on behalf of your client. Before representing your client in court, you will need to file Form E-28, which is notice of representation before the immigration courts. 7. Fully Explain and Provide the Client with a Copy of an Engagement Letter. Even if you are representing your client free, or pro bono, sign an engagement letter with your client once you decide to represent your client. This will outline your responsibilities along with your client’s and will provide clear expectations for both parties. This will also clarify the parameters of your representation. For example, a contract can specify that your representation will not include any appeals. Finally, it makes clear that if expectations in the engagement letter are repeatedly not met (e.g., being truthful), either party can terminate the representation. A sample engagement letter can be found at Appendix G. 8. Ending the Meeting. Before the client leaves your office, be clear on what your next step is. Discuss what each of you will be responsible for accomplishing before you meet again. For example, give her a checklist of tasks or documents to be gathered, along with any useful instructions (such as instructions on how to request court records, directions to

2-5

Chapter 2

4. Taking and Recording Notes. You will need a record of the interview. Appendix D contains a sample intake form. Using this form allows you to keep a record of your conversation, and reminds you of the crucial information you need to know. Clients often feel more comfortable if you explain why you are taking notes in the interview. This is especially true if you use your computer (be mindful that this may create a barrier between you and your client).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

the court, etc.); or give him or her tips on how to practice for her interview or hearing. Set up another appointment or arrange a time to speak by phone. Leaving your client with a vague “I’ll be in touch with you …” makes it easy to lose track of the client. 9. Referrals. When you cannot help someone because you don’t have the skills or resources, it’s important to keep a list of resources in your area so you can refer the client to someone who can help him.

Chapter 2

§ 2.4

A Closer Look at the Initial Meeting and the Intake Sheet

After you first introduce yourself and get to know your client, you will want to get some basic information about them. Having a good intake sheet will guide you in the initial client interview. The intake sheet should be a comprehensive list of brief questions to ensure that you screen for all major forms of relief, gather other pertinent information, and catch red flags. Refer to Appendix D for a sample intake, or create your own, but either way an intake is important to guide your interview and ensure that you do not miss any important information. Start with basic biographical information and contact information for family members who may be helpful in assisting with the case. In removal proceedings, criminal history is particularly pertinent so make sure that any intake sheet requests the necessary information about any past crimes and arrests. Requesting the relevant information is crucial to assessing how a given criminal conviction will be treated under the INA. For example, the length of a criminal sentence can be the difference between an aggravated felony (foreclosing many forms of relief) or not. Refer to the sample intake form at Appendix D for relevant criminal inquiries. Finally, make sure you have a series of questions aimed at flagging certain types of relief. For example, whether someone has a fear of returning to their home country flags for asylum, withholding of removal, or Convention Against Torture (CAT). You should also have questions aimed at prior immigration history that may necessarily affect the pending case, such as prior apprehensions near the border or previously filed I-130 petitions, which are visa petitions filed on behalf of a relative. PRACTICE TIP: Establishing trust is essential to a productive meeting. If your client does not feel comfortable revealing information to you, key strategies and critical issues might be overlooked. Remember that while your intake questions might feel routine to you, the questions might cause anxiety or fear in your client. Take time to discuss confidentiality and your role with every client. As answers to these questions trigger concern, ask a mix of open-ended questions and pointed questions to get further information. Example: When you ask Parul whether her USC husband has ever harmed her physically or emotionally, she answers in the affirmative and you think she may be a candidate to file a self-petition under the Violence Against Women Act (VAWA). In order to determine whether she in fact qualifies for this benefit, you ask her to tell you what happened. You ask general, open-ended questions to gather general information, such as “How did your husband treat you?” or you might gently help her move along by asking “And then what happened?” or “What happened after you moved out of the house?” It is important to also explain to Parul why this might be important to her immigration status and what options she might have. Although you may need to meet with her at a later time 2-6

Tab Position 1

Immigrant Legal Resource Center June 2017

to ask in more detail regarding the abuse and her feelings about it, so that she can prove she suffered abuse in a credible manner in her declaration, this information is not necessary at this point. It may be more counterproductive to engage Parul in such a difficult conversation when you still need to cover many other tasks during your initial meeting, such as signing the retainer agreement and reviewing alternative options, if any. In addition, Parul might be overwhelmed by jumping into such a conversation in the first meeting without being prepared to do so.

If you decide to take the client’s case, the initial client meeting also sets the tone for your relationship with the client, namely an advocate-client partnership. After this first meeting, both you and the client should understand clearly what you expect from one another. You can discuss this as you go over the retainer agreement you will ask your client to sign. Hopefully, you have established trust with the client by asking about their goals and concerns and by addressing confidentiality prior to signing the agreement. § 2.5

Subsequent Information-Gathering Meetings

Once you and your client have decided on a course of action, including form of relief or bond hearing strategies, you are ready to explore the facts and to follow-up on any red flags. Refer to Part Two of this chapter for discovery options because fact-finding should occur as early as possible. Successfully obtaining certain facts can largely depend on your client’s level of comfort with you and on how engaged he or she feels. Therefore, make sure you have thoroughly counseled your client on the requirements involved in his or her case and that he or she understands why you are asking for any particular information. Explain to your client that you will be meeting several times during the course of your representation and provide an explanation as to the purpose of the meetings, for example, to prepare a relief application or prepare testimony. You may also want to give your client a global overview of how case preparation will go. Clients are often surprised by the length of the immigration process, and it will be easier if you set clear and realistic expectations at the beginning. PRACTICE TIP: Be mindful of the way you word the questions you ask of your clients. For example, make sure your questions are not interrogatory but are empathic instead: Ask: “Were you afraid to reveal your marriage?” “Did you have any concerns about disclosing your marriage?” Instead of asking: “Why did you lie about being married?”

2-7

Chapter 2

Finally, make sure to understand your client’s aim in his or her case. Not every person wants to remain in the United States and in fact, some people may prefer to return to their home country. Others might be more concerned about the impact of various options on family members. As such, it is important to consider the holistic concerns and wishes of your client. Of course, it is important for you to explain carefully the consequences of various strategies and decisions and ensure your client is making informed decisions about how to proceed. Formulating strategy and analyzing your client’s case is discussed more in § 2.7. Additionally, see Chapters 9 and 10 for information on various forms of relief.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 2

PRACTICE TIP: Set an agenda. A clear agenda can be very helpful for these meetings, to help you and your client stay on task. As mentioned above, the agenda should give the meeting purpose by outlining for the client the topics you must discuss and explaining again the legal requirements he must meet. This engages the client, giving him a sense of control over his case and deepening your partnership with each other. NOTE: Interrupting Your Clients. You may feel rude or disrespectful interrupting someone who is talking about something very personal; and to be sure, listening attentively and patiently is an important skill. However, keeping your client on task is also one of your responsibilities. Clients can oftentimes get distracted or misdirected with irrelevant information, and this can be counterproductive, especially if it is taking-up the energy they need to continue with the discussion. Help your client stay on track if he or she begins to deviate from the topic at hand. One way to do this is to say, “We can come back to [irrelevant information] later. But first tell me more about [facts pertinent to the legal requirements].” Let him know that you may interrupt him in order to help him focus on the relevant subject matter as outlined on your agenda. Done correctly, this can help develop trust between you and your client. § 2.6

Working with Vulnerable Clients

You may work with clients who have experienced trauma in the form of a violent crime, domestic violence, persecution in their home country or in the United States, among other things. Furthermore, many immigration petitions require that applicants talk about difficult feelings and experiences in order to qualify for a particular benefit, such as U and T visas, asylum, petitions under the Violence Against Women Act and any petition that requires a proof of hardship. Working with clients seeking these benefits can be particularly challenging. People who have experienced violence or other forms of trauma may have difficulty remembering events surrounding the trauma or difficulty talking about them. Furthermore, doing so may trigger reactions associated with the effects of trauma that you may not be equipped to handle and that may be harmful to the client. Below are some things to be aware of when working with clients who have experienced trauma. Giving Difficult Conversations a Productive Purpose. When you first meet with your client to have a conversation about the difficult facts of her case, review the agenda with your client and acknowledge up-front that you will need to ask him about painful events or feelings. Explain to him how this is relevant to prove his case by making the connection with the legal elements they must prove. Discuss the importance of credibility when asking your client to remember difficult details such as timelines, names, locations, etc. Remind him that articulating his feelings is an important way to humanize his case, bolster his credibility, and win the sympathy of the adjudicator. Let him know you will only ask him to discuss painful details to the extent that it is necessary to prove his case. Giving a productive purpose to a difficult conversation can be an empowering experience for the client. Give your client an opportunity to ask questions and respond before pushing forward when you notice discomfort. Based on your client’s reaction, you will be better able to respond. If he is not yet ready to continue on with the meeting, try to tailor additional chitchat to address the

2-8

Tab Position 1

Immigrant Legal Resource Center June 2017

distress the client is feeling. In some cases, your client might need to work with a psychiatrist or counselor before discussing her story with you.

Working with a Clinical Therapist. Because of the nature of your work together, the client may seek in you the type of support that is more appropriate for a therapist to provide. It is important for you to recognize that, as a legal worker, you are not equipped to help your client process trauma and heal any emotional or mental injury she may have suffered. Therefore, depending on your assessment of the client, you may want to suggest that she see a clinical therapist if possible. Sometimes clients are more willing to do this if the purpose of seeing a therapist is connected to their legal case, such as obtaining a psychological evaluation to submit as evidence. However, the purpose of therapy is different than that of obtaining such an evaluation (although oftentimes both can be accomplished by the same therapist). Clinical counseling can help the client manage the emotions that revisiting trauma arises in them and can help them heal. This, in turn, can equip the client with the proper tools to work on her case in partnership with you. Listening to Your Client and Self-Care. Bearing witness to a story of violence or other forms of trauma is often a difficult experience for legal practitioners. However, it can have a powerful impact on your client’s ability to manage the emotions triggered by traumatic memories. Be careful not to dismiss your client’s feelings or avoid topics that are essential to the case because you think it will be uncomfortable or simply because you are rushing a meeting that requires more time. Try to be prepared with mechanisms to cope with your own feelings of discomfort, such as bringing your gaze down to your notes; and remember that it is ok to sit in silence with your clients for a few minutes as they gather the strength to continue. Finally, be sure to take care of yourself when you work with clients who have experienced violence, abuse, and other forms of trauma. Watch out for signs of vicarious trauma or compassion fatigue in yourself and talk to others you trust about this. Try to prioritize activities you enjoy, such as time with your family and friends, etc. WARNING! It is essential to conduct a thorough intake before taking pleadings at a master calendar hearing. You should not enter pleadings before developing a case strategy and have determined what if any relief for which your client might qualify. For instance, if you enter pleadings and later determine in an intake that your client has grounds to file a motion to suppress, any admissions and concessions will have ruined your client’s chance to challenge removal. If you must take pleadings before developing a case strategy, you should deny the allegations and charges.

2-9

Chapter 2

Assessing Your Client’s Emotional and Mental State and Reacting with Empathy. As your conversation moves along, assess your client’s ability to discuss traumatic memories and feelings with you. If you notice he reacts in a way that concerns you, such as by avoiding the conversation and shutting down or, on the other hand, becoming re-traumatized and overwhelmed, you may need to take a few steps back before continuing with that conversation. Acknowledge the difficulty involved in remembering and discussing past traumatic events and validate your client’s hesitation or overwhelmed feelings. Proceed at his or her pace and with empathy, letting him know he is safe to express emotions, to cry and to stop and take moments of silence. Make a box of tissues available. However, try not to let the client revisit trauma unnecessarily (see “Note about Interrupting Clients” above).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Identify Your Client and Consider Conflicts. In immigration matters, an advocate often might find herself representing more than one family member. It is important to consider the needs of each client separately and assess whether you can zealously represent each client, given your representation of other family members. Pay close attention when representing children and parents. For family cases in removal, do not overlook that the children might have their own claims. While some judges waive the appearance of children for certain hearings, it is important that you meet with each member of the family and insure that you have a strategy that best represents each individual.

Chapter 2

Example: Advocate Abe represents Harry, Wilma, and their two children. Abe has waived the appearance of the children for all court matters. When he first interviewed Harry and Wilma, he interviewed them together and the children were sitting in the waiting room. Abe has done a disservice to his clients. First, he cannot be certain that Wilma and Harry did not withhold important information because they were sat together. Abe could have overlooked domestic violence issues or embarrassing personal details that could have been vital to relief. Additionally, Abe might have missed that their oldest child, Charlie, is homosexual and terrified to go back to his home country due to his sexuality. If Abe wants to effectively represent this family, he must take time with each of the members individually. Additionally, many forms of relief require qualifying family relationships. It is common and necessary in many cases to represent spouses. In such situations, you must inform the clients that there is a potential for conflict to arise, and how a conflict will be handled, should one develop. Follow the guidance of your state bar to comply with all ethics standards in such situations. § 2.7

Analyzing Your Client’s Case

Once you’ve met with your client, and completed an intake, you will have a sense of what relief is available to your client. At this time, you will need to develop a case strategy that takes into account that your client is in removal proceedings. For cases in removal, you will need to map out the best strategy—given the facts, interest of the client and burden of proof. A good intake form can help make sure that you’ve asked all the necessary questions of your client and have a sense of what relief and strategies might be available. See Appendix D for samples. However, after that initial assessment, you must work with your client to ensure that the strategy you devise meets the client’s goals. It is important to make sure to explain timing and impact on family members to ensure that you are embarking on a strategy that meets the client’s needs holistically. It’s also a very good idea to consult the Immigration Court Practice Manual, which came into effect July 1, 2008, to make sure you are complying with all the procedural requirements necessary. 4 It would be tragic to lose your case because of missing a deadline! Additionally, any strategy should take into account the various burdens of proof in removal proceedings. Even if you know certain facts about your client, you might rely on a strategy that holds the government to proving certain elements. See Chapter 7 for more on contesting removability and taking pleadings.

4

Available at: www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm or www.usdoj.gov/eoir/.

2-10

Tab Position 1

Immigrant Legal Resource Center June 2017

In analyzing your client’s case, it may be helpful to ask yourself the following questions:

By going through these questions logically and systematically, you are less likely to overlook what may turn out to be an important issue. See Chapter 7 to learn more about identifying important issues before taking pleadings at the master calendar hearing. § 2.8

Educate Your Client on His or Her Case

Remember to educate your client. Meaning, the client needs to understand the form of relief that they are applying for in immigration court and what they need to prove to receive said relief. With this understanding, the client will be better equipped to give you the information that you need to present the case. This will also empower your client and bolster confidence. The client will also be much better able to tell her story through her declaration, at an interview or at a hearing. Example: Teresa is an elderly woman from El Salvador who did not go to school beyond the third grade. In 1982 she was arrested and tortured by the military because she was a

2-11

Chapter 2

1. Is the client potentially a U.S. citizen by operation of law, and if so, what do I need to prove it? 2. How did the client come to the attention of DHS? 3. Is there any way to challenge the arrest and/or the government’s evidence? (Question your client closely about the circumstances of his or her arrest. If you see a potential challenge to the arrest or evidence, do not concede removability). 4. What is the client charged with? Is it a ground of deportability or a ground of inadmissibility? 5. Who bears the burden of proof? 6. Can the charges be challenged, and how? If so, do not concede removability. 7. Is the client eligible for relief from removal if the charges are sustained? 8. Do I have a thorough family history to explore relief options? 9. If I pursue certain relief, are there potential negative impacts on family members? Other consequences? (e.g., if client is eligible for both NACARA and asylum, should I withdraw the asylum application? Think about whether there are dependents that would only benefit from asylum.) 10. What relief, and what are the requirements? 11. What is my client’s burden of proof on eligibility and how can I help him meet it? 12. What is my client’s burden of proof on discretion and how can we show that he merits a favorable exercise of discretion? 13. What evidence do we need to establish eligibility for relief? 14. What kinds of documents would be useful to establish both eligibility and that your client merits the relief sought? 15. Who will potential witnesses be, and what will their testimony offer? 16. What are the client’s equities, and what are his or her weak points? 17. How can I best present the evidence in this case? 18. How can I best refute the government’s position? 19. How can I best prepare my client and witnesses for direct examination? 20. How can I best prepare my client and witnesses for cross-examination?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Catholic lay teacher. After she was released, she stayed in El Salvador for five more years earning money so that she could send her four daughters out of the country. When all her daughters were safe, Teresa fled to the U.S. She was caught by ICE and applied for political asylum.

Chapter 2

Although she can barely read, Teresa understood the issues involved in her case quite well. Through her legal worker, Teresa knew that the ICE attorney may argue that, because she stayed in El Salvador for five years after being tortured, she was not really afraid or in danger and should not get asylum. At her hearing for political asylum, the ICE attorney tried to attack her on this point and she gave a very moving explanation of how she stayed to protect her daughters even though she was afraid. Additionally she described how she avoided harm despite the danger she was facing. Because she understood the issues, Teresa won her asylum case. PRACTICE TIP: It is best to explain the law and procedure orally and to also provide the client with a written explanation (in his or her own language if possible). One way to do this is to provide your client with pro se materials or other guides that your client can take with them and study. Pro se guides are particularly helpful because they explain forms of relief and the evidenced required for such relief in very basic terms since they are geared toward respondents without attorneys. The Florence Immigrant and Refugee Rights Project is an excellent source for such pro se materials. 5 Time permitting, review the materials and discuss them with your client. Your client can keep these handouts for future reference and can share them with family and friends. § 2.9

Ask the Client and His or Her Family to Do Work on the Case

There are at least three reasons to ask the client to work on the case: (1) It will save you time. This is a very valid reason, especially for those providing services for nonprofit organizations on tight budgets; (2) The client may do the work better, or at least gain a better understanding of the case by doing the work, thus strengthening the case; and (3) The client will gain confidence and skills, thus helping him or her navigate the system in the United States and hopefully become more civically and politically engaged. Here are some examples of tasks: A.

Obtaining Documents and Contacting Witnesses

Once you have a basic picture of the client’s and his family’s life, based on your initial interview and their subsequent written explanations, you and your client can begin to ascertain what documents will be needed to support the case, and whom you should call on to be witnesses. Your client may have suggestions of which you hadn’t thought, so make sure to ask for their input in regards to evidence and witnesses. Prepare a checklist 6 of the documents you and your client believe to be necessary and/or helpful to establishing the case and be clear about when you need to receive those documents so that they

5

Available at www.firrp.org. Go to the pro se section of the Florence Immigrant and Refugee Rights Project website for a helpful starting point regarding the types of documents that you will need when applying for a given form of relief.

6

2-12

Tab Position 1

Immigrant Legal Resource Center June 2017

can be submitted to the court on time. Make sure to give yourself enough time to prepare the documents for filing with the court, which may include translating documents to English, redacting the documents for private or privileged information, and general review.

If you are requesting character letters for your client because you are proving some discretionary form of relief, provide guidance to those preparing letters. Prepare a handout explaining what a character letter should entail. Regarding form, explain that the writer should identify themselves, their immigration status if they have lawful status, explain their relationship to the client including how long they have known them, and their occupation if helpful. Explain to whom the letter should be addressed, generally the immigration judge. If possible, attach proof of the individual’s lawful status. If letters can be notarized, they will carry slightly more weight before the immigration judge. Regarding content, explain that you need details regarding the client’s character. For example, “my father is nice” does not carry as much weight as, “my father is nice because every day he drives me to and from school and packs my lunch.” All documents, including character letters, must be submitted in English to the court. Thus, if you receive a letter in another language, make sure to include the English translation. B.

Writing a Draft of a Declaration

Many applications require the client to write a declaration (statement) about his experiences. After you explain the legal issues to the client, you may ask him to draft a declaration, or notes to be used in a declaration, before your next meeting. If the person cannot read or write he can try to get a family member to help when appropriate. The delicate nature of the content of a declaration is one of the reasons that it can be a good idea to have the client write a draft on their own, but it can also make it difficult for a client to use the help of a friend or family member. This practice has several advantages. It gives the client an opportunity to tell her own story, in her own words and at her own pace. This is an important characteristic of an authentic and effective declaration, one that will move the adjudicator and establish your client’s credibility. In addition, clients will often reveal more facts in writing than they may have thought to reveal in person. It will also help the client to think about his or her case and how he would present it. Additionally, for many clients, especially those with past experiences with trauma, writing may be a cathartic or therapeutic experience that can help the client be more open about his claim. Once you have read the draft, you will be able to ask more questions and elicit more important information, as well as clear up confusion and eliminate discrepancies.

Available at www.firrp.org. Additionally, refer to Appendix T of this manual for cancellation of removal checklists.

2-13

Chapter 2

Remember to explain why a particular document is important, and how it will be used to support the case. For example, if you want to obtain medical records of a family member that is not otherwise involved in the case, to show hardship to that person, you need to explain why they are needed and ask your client to obtain them from the doctor or medical institution involved. Having your clients obtain records like these and others themselves will save you time and give them the opportunity to take some control over the case. Often they know people in other countries who can get foreign documents more easily than we could, and they also are able to get documents from the U.S.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 2

When you and your client finally draft the declaration that will be submitted to the court, you may suggest words or phrases for legal purposes that are unfamiliar to the client. Make sure he understands them. When the client reads over the final version of the declaration, you want it to sound familiar to him or her. CAUTIONARY NOTE: Make sure you use the client’s draft declaration as a first step or a guide to help you write a final declaration together. A draft statement from a client can often help you design your questions for a client meeting, as you identify what parts of the story need to be fleshed out more and what parts seem to raise a red flag or to cause confusion. However, it is generally not a best practice to submit your client’s draft declaration to the Court without working on it with him or her. A declaration should be crafted with care as the client can be impeached on this in later testimony or with other documents. Many judges will make negative inferences if the client leaves out details in the declaration. It is your job to ask questions of your client and ensure that the declaration covers all necessary details and that the client is able to testify to its contents. C.

Completing a Draft of an Application Form (In the Client’s Own Language)

Give the client a copy of any application form for relief, translated into his or her language. Even though the application may not be complete and even though you will prepare a clean typed-up copy for your client to sign, having the client begin to complete it will help in at least three ways. First, it will save you time. Many forms ask a series of tedious questions which take time for a client to recall, for example every single residence that the client has had in the past ten years. You do not need to be present for the collection of such details. Second, the client will become familiar with the form and know what information she is giving. This is important because it is likely that at some point the client will be questioned about the form at a government interview or hearing. Third, it may help you teach the client a valuable skill. After filling out an immigration form, the client may feel more comfortable the next time he or she is handed any official form. PRACTICE TIP: After you identify the immigration matter with which you will be assisting your client, it can be a good idea to start by giving the client a worksheet or questionnaire to complete as homework, so he begins to process and identify the information he will need to provide. This helps clients understand the legal requirements better before completing the actual forms. It also helps flag for clients any questions they might have or any evidence they might be able to obtain. D.

Organizing and Keeping Documents

If a client hands you a big paper bag full of documents, thank him or her for doing the hard work in obtaining the documents. Yet, it is important to ask the client to put the documents in order, such as all phone bills or tax records arranged by year. Talk to the client about keeping documents in folders in a safe place. This too is a skill that the client can use in other areas of life. § 2.10 Case Management While a seemingly basic task, managing a case well is a tool which will serve you your entire career. Good case management ensures that deadlines are not missed and that important facts don’t fall through the cracks. Building good habits early on is important as changing habits later

2-14

Tab Position 1

Immigrant Legal Resource Center June 2017

on can be difficult. If you are already in an established office, your office likely has protocol regarding file management. If not, you’ll find some pointers to keep in mind below. A.

Maintaining Files

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

File management is basic but important. Consider the tips below as you develop the best file management system that works for you. Also, ask what other local practitioners are doing and draw from their practices. It is a good practice to maintain various folders or files for different categories within the same case. For example, one file for correspondence, another for pleadings or court filings, another for legal research, etc. It is important to keep court filings separate so that you don’t later get confused about which documents have already been submitted to the court.

•

Since these files can get voluminous, you may want to keep indexes for individual folders. For example, the pleadings folder will have an index listing out each document therein, with the index updated as documents are added.

•

Additionally, you may want to establish protocol for certain files. For example, within the correspondence log, you may want to keep a correspondence chart. For more extensive and important conversations, you may want to create an internal memorandum. Not every conversation needs to be documented. However, it is good practice to document more important conversations and to have a consistent go-to place to keep such communication.

•

You may also consider color-coding files or select individual documents. This may seem basic, but it can save time when shuffling through various files as your practice grows. For example, since your initial intake sheet may have information that you frequently reference such as family contact information or basic facts about the case, print this out on colored paper so that it is easy to find.

The above are just a few tips to keep in mind. However, there are extensive guides and even software available (e.g., to track case and court deadlines) to help you stay organized. Many practitioners opt for case tracking software to manage client information and deadlines. PART TWO: GATHERING INFORMATION AND THE LACK OF DISCOVERY IN IMMIGRATION PROCEEDINGS Discovery is the process by which each side obtains evidence from the opposing party regarding pending litigation. Unfortunately, there is no formalized discovery process in immigration court as there is in other areas of law. Immigration law is administrative in nature and at present, the right to information from opposing counsel is much more limited than in other areas of law. Nonetheless, fact-finding remains equally important. This section will discuss the various ways you can gather information from various sources despite the lack of formal discovery in immigration proceedings. Fact-finding should occur as early on as possible as you want to learn about the strengths and weaknesses in your case early on. For example, there may be damaging facts (e.g., additional criminal history) that you want to mitigate, or good facts (e.g., family hardship if respondent deported) that you want to develop, all of which you will want to discover

2-15

Chapter 2

•

Chapter 2

as early as possible. These types of facts will be relevant to your case for a variety of reasons (e.g., if relief is based on discretion) and it is crucial to begin this fact finding early on. This is particularly pressing if your client is detained, in which case their case is on an expedited track. Importantly, there is generally no new fact-finding once you are on appeal. Thus, you generally cannot introduce new facts before the Board of Immigration Appeals or your relevant appellate court. 7 All relevant facts must be fully presented before the immigration judge. Finally, keep all of these facts in mind as you develop your theory of the case, discussed in Chapter 8. This section details the tools available to immigration counsel to gather information from immigration agencies as well as law enforcement on criminal issues prior to the final hearing. To start, advocates should think creatively about the documents that they should seek. However, advocates should start with securing the A-file, criminal documents, and medical documents. § 2.11 Freedom of Information Act (FOIA) A Freedom of Information Act (FOIA) Request is helpful in obtaining a copy of the A-file. Generally, a FOIA request to USCIS will result in a copy of a client’s entire A-file or immigration-related file, including any previous applications or contact with immigration. It is important to indicate that you want a copy of the entire file. 8 FOIA requests must be in writing and advocates can use Form G-639. 9 Requests for USCIS records, including A (alien) files, should be mailed or faxed to the National Records Center at the following address: U.S. Citizenship and Immigration Services National Records Center, FOIA/PA Office PO Box 648010 Lee’s Summit, MO 64064-8010 Live Assistance: 1-800-375-5283 Fax (816) 350-5785 [email protected] Refer to the instructions when completing the Form G-639. 10 Note that the form requires that your client provide a signature either through notarized affidavit or sworn declaration under penalty of perjury. A space is provided for both on the form. FOIA requests can take months to process and have even been known to take over a year for nondetained clients. Thus, file your FOIA request as soon as possible. To check on the status of a field FOIA request, go to www.uscis.gov and select “FOIA Request Status Check” on the far left column and follow the directions therein. 7

See, e.g., Matter of Adamiak, 23 I&N Dec. 878, 880 (BIA 2006); Matter of F-P-R-, 24 I&N Dec. 681, 682 FN1 (BIA 2008); Al Mutarreb v. Holder, 561 F.3d 1023, 1228-29 (9th Cir. 2009). 8 It is possible to request one document or a limited set of documents from an A-file. This might speed up the request. However, it is generally advisable to retrieve the full file so that the applicant may review it and have it for their records. 9 Form G-639 and instructions can be found in the Appendix E and at: www.uscis.gov/g-639. See also Freedom of Information Request Guide for detailed information on how to process a request, available at: www.uscis.gov/USCIS/About%20Us/FOIA/uscisfoiarequestguide%2810%29.pdf. 10 See Appendix X.

2-16

Tab Position 1

Immigrant Legal Resource Center June 2017

PRACTICE TIP: Be mindful of what information you disclose on a request for records through FOIA. If you might be filing a motion to suppress or otherwise challenging ICE’s claims about entry date and alienage, having the client swear to these facts in the FOIA request might thwart any arguments you have. Only admit what is necessary or not detrimental to your client. Completing all fields on the G-639 is not mandatory. In fact, many advocates submit a letter request in lieu of the G-639 to avoid these issues.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 2.12 CBP FOIA Requests

§ 2.13 OBIM FOIA Requests The Office of Biometric Identity Management (OBIM) maintains biometric data for various agency encounters, and is searchable by fingerprints. This is very useful in cases where your client may have been fingerprinted at the border, but you are unsure of what name was recorded for your client and whether there was an A-number issued. You should submit a FOIA request to OBIM using Form G-639 by email, mail, or fax, or using the electronic DHS submission form. OBIM requests also require original fingerprint cards or Anumbers. Mail: OBIM FOIA 245 Murray Lane, SW Washington, DC 20598-0628 Fax: (202) 298-5445 Email: [email protected] Electronically: www.dhs.gov/dhs-foia-request-submission-form RESOURCES: The ILRC maintains a step-by-step guide to FOIA requests on its website: www.ilrc.org/step-step-guide-completing-foia-requests. Additionally, the American Immigration Council has an in-depth look at FOIA requests in a practice advisory, “FOIA for Immigration Lawyers,” February 2017, located at: www.americanimmigrationcouncil.org/practice_advisory/fo ia-immigration-lawyers. § 2.14 Expedited FOIA Requests for Clients in Removal If the applicant is currently in proceedings, they can request expedited “Track 3” processing of their USCIS FOIA. Track 3 is an accelerated track for cases involving individuals who are to

2-17

Chapter 2

For those applicants that may have been apprehended, detained, and/or removed at the border or ports of entry by Border Patrol officials, you may want to also submit CBP FOIA requests. CBP may also have records related to I-94 arrival/departure records, entries and exits of individuals, and records if the person decided to voluntarily return to their home country. In many cases, information relating to contact with immigration officials will surface in a general FOIA request to USCIS. However, if you are looking for something particular, such as proof of an entry or information relating to an incident at the border, it is useful to send the FOIA request to CBP or the specific agency with which the client had contact. CBP prefers to receive FOIA requests through their online system: www.cbp.gov/site-policy-notices/foia (last visited July 2017).

Chapter 2

appear before an immigration judge. In order to receive Track 3 priority processing, you must include one of the following documents with the FOIA request: 1. Form I-862, Notice to Appear, charging document reflecting a future scheduled date of the subject’s hearing before the immigration judge; 2. Form I-122, Order to Show Cause, charging document reflecting a future scheduled date of the subject’s hearing before the immigration judge; 3. Form I-863, Notice of Referral to Immigration Judge; or 4. A written notice of a future scheduled hearing before the immigration judge. 5. When possible, it is also good practice to include EOIR Form 28 (E-28), reflecting your Notice of Entry as Attorney or Representative before the Immigration Court. Thus, the final Expedited FOIA submission will include the completed and signed form G-639, a copy of form E-28, and one of the documents listed immediately above at 1-4. A sample cover letter for an expedited FOIA request is provided at Appendix T. Even an expedited FOIA may take several months, during which an immigration case may already be adjudicated. Thus, file your expedited FOIA as soon as possible. § 2.15 Challenging the FOIA Response The agency usually withholds pages of your client’s file provided in the response to a FOIA request. You have the right to appeal the withholding of any documents, and you should do so when necessary. Follow the instructions provided through FOIA. Generally, you have 60 days to appeal the record response. Recent litigation challenging the records produced through FOIA and the timeliness of response have resulted in victories that benefit our clients. Two caselaw holdings directly impact a litigator’s ability to get information to assist in the defense of her client in removal. A.

Direct Access to the A-File: Dent v. Holder

In the Ninth Circuit, practitioners have an additional tool by which to secure the A-file. In Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), the Ninth Circuit stated that, Congress has provided that to meet his burden of proof in removal proceedings, “the alien shall have access” to his entry document “and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien’s admission or presence in the United States.” This mandatory access law entitled Dent to his A-file. Id. at 374 (citing 8 USCA § 1229a(c)(2)(B)). The Ninth Circuit held that INA§ 240(c)(2)(B) gives a noncitizen mandatory access to their A-file, rejecting the government’s arguments that a noncitizen must turn to the FOIA process instead. Practitioners have thus used Dent v. Holder to request the A-file directly from opposing counsel. Practitioners, particularly in the Ninth Circuit, should use INA§ 240(c)(2)(B) and Dent v. Holder as the basis to request the A-file from opposing counsel. Dent requests may be made in a variety of ways, including through an informal request, through a motion, and through a subpoena. The issue may also be raised on appeal. However, practitioners should still submit a FOIA request, as Dent requests do not always work. Further, this may persuade an immigration judge to grant a Dent motion.

2-18

Tab Position 1

Immigrant Legal Resource Center June 2017

For more information on Dent v. Holder, including the best arguments to utilize in making such requests, see “Dent v. Holder and strategies for obtaining documents from the government during removal proceedings,” American Immigration Council Legal Action Center Practice Advisory (June 12, 2012), available at: www.legalactioncenter.org/sites/default/files/dent_practice_advisor y_6-8-12.pdf. B.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Challenging the Results of the FOIA Access to Asylum Notes

In November 2013, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and co-counsel at Davis Wright Tremaine LLP reached a settlement in Martins v. USCIS, which challenged the agency’s withholding of asylum officer interview notes. The lawsuit challenged the withholding of the notes under FOIA in the cases of ten individuals, and also challenged the agency’s global policy of withholding the notes. The settlement brought an end to this policy. Under the settlement agreement, USCIS must produce asylum officer interview notes—the records reflecting information, instructions, and questions asked by officers and responses given by applicants in asylum interviews. 11 § 2.16 Subpoenas A party may request a subpoena requiring a witness to give testimony at a hearing or that documents be produced. See 8 CFR §§ 1003.35, 1287.4(a)(2)(ii); EOIR Immigration Court Practice Manual, Chapter 4. The procedures for issuing a subpoena in immigration court are laid out in the EOIR Immigration Court Practice Manual in Chapter 4 at § 4.20, along with a sample subpoena at Appendix N. 12 Counsel must apply for a subpoena through a written or oral motion before the immigration judge. In the motion, counsel must explain what the party expects to prove through the subpoenaed evidence and show affirmatively that the party has made diligent effort, without success, to produce the witnesses or documentary evidence. Example: Your client’s doctor refuses to testify because that is the policy of the medical group with which she works. However, you already know that she has useful information to assist your case. After establishing that she will not testify without a subpoena, you follow the subpoena guidelines and the judge can compel her to testify under subpoena.

11

Martins v. USCIS, Case No. C 13-00591 LB, Order filed February 11, 2013. The order is available at: www.aila.org/content/default.aspx?docid=45026&utm_source=AILA+Mailing&utm_campaign=5461ce32 95-AILA8_7_11_13&utm_medium=email&utm_term=0_3c0e619096-5461ce3295-290737597. 12 Available at www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm (last viewed July 2017).

2-19

Chapter 2

Once a FOIA response is received, you will notice that pages are withheld for various reasons. Do not be afraid to appeal the agency’s decision to withhold information from the client’s file. Additionally, it is possible to challenge a FOIA response in federal court. Organizations and law firms have brought litigation against USCIS for withholding certain documents with success. A lawsuit filed in 2013 resulted in a victory for all asylum applicants referred to proceedings. Prior to the lawsuit, USCIS’s practice was to withhold the asylum officer’s interview notes from the FOIA response, but government counsel would use these notes against your client in removal proceedings.

Chapter 2

§ 2.17 Criminal Documents Understanding your client’s criminal history is crucial because counsel for ICE and judges often focus on the severity and number of criminal encounters. Importantly, the government will have access to your client’s full criminal history but strategically, may not disclose it until very late. It is important to understand not only how many convictions your client has, but also arrest and charges, even if they were ultimately dismissed. Your client will be judged upon their criminal history as a whole. Try to ascertain what happened during each of the criminal encounters and try to provide a narrative or reason as to why they occurred. If you can identify a cause, you can try to identify rehabilitation. A.

Securing Criminal Documents When Your Client Is Not Detained

If there is any possibility that a conviction or arrest occurred, obtain the following three different records: 1. FBI Identification Record/Rap Sheet. This provides the information DHS has on a client. This record may show most, if not all, criminal convictions from every state, in addition to immigration violations. The only problem is that errors or omissions may be present. 2. Client’s State Rap Sheet. State procedure on how to obtain criminal records may vary. State rap sheets are important because FBI reports are often wrong or fail to contain much detail. The state document helps to ensure that the client’s entire criminal record in a particular state is known. These rap sheets, however, may also include errors and omissions. 3. A Complete Copy of the Record from the Court Where the Client Was Arrested and/or Convicted. In some places these records can be found online. If not, call the court clerk to learn how to get the requirements. In many states, Superior Courts handle felonies and Municipal Courts handle misdemeanors. If the client lives near the court, prepare a letter signed by the client requesting the entire file (not just the summary (minutes) of the file) and have the client deliver it to the court clerk. Some courts may charge a fee to make copies of the court records. Court documents often are necessary because FBI reports can be wrong or contain insufficient detail. Also, the underlying details about the conviction do not appear on a rap sheet, but may be considered by DHS. Your case strategy might depend on knowing the details of a plea or the exact wording of the complaint or plea, which establishes exactly what conduct for which your client was found guilty. Arguments against removal might hinge on this information. Furthermore, if an attempt to clear up the criminal record may be made, the court papers are necessary. PRACTICE TIP: Do not state on any fingerprint or records request forms that the reason for obtaining criminal records is for immigration purposes. Indicate that the records are for personal review and/or to check the accuracy of the records.

2-20

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

How to Request a Copy of Your FBI Record

An individual can request a copy of her own Identification Record by directly submitting a request to the FBI. 13 For an attorney to obtain the copy of a client’s criminal record, she must send a cover letter that includes a release from the client as well as the documents listed below.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. How to make an FBI record request The steps to request a copy are:

•

Include your name, date of birth, and complete mailing address. Provide your telephone number and/or e-mail address, if available.

•

Under “Purpose” or “Reason for request,” write “personal review” or “review own record.” DO NOT write that it is for immigration purposes.

•

Sign and date the form

•

Note: Providing information like a Social Security Number and citizenship information is optional; you do not have to provide this information.

Step 2: Obtain a set of your fingerprints. •

Individuals can go to a law enforcement agency to get fingerprinted for an FBI records request. However, the person runs the risk of being arrested at a law enforcement agency if she has any outstanding warrants. The better option is to go to a private business to obtain such fingerprints. 14

•

Fingerprints should be taken on an original fingerprint card; the form can be found here: www.fbi.gov/about-us/cjis/background-checks/standard-fingerprint-form-fd-258.

•

To ensure the most legible prints possible, refer to the Recording Legible Fingerprints brochure at: www.fbi.gov/about-us/cjis/fingerprints_biometrics/recording-legiblefingerprints.

Step 3: Submit payment. •

Option 1: Obtain a money order or cashier’s check for $18 (U.S. dollars) made payable to the Treasury of the United States.

13

One can also submit a request to an FBI-Approved Channeler, however, such a channeler may only process requests for individuals who are U.S. citizens or lawful permanent residents of the U.S. Therefore, this option is generally not the most practical option. An FBI-Approved Channeler also cannot authenticate fingerprint search results. 14 Some printing companies offer this service; check the yellow pages in your telephone book or search online. Additional information on FBI-Approved Channelers can be found at: www.fbi.gov/aboutus/cjis/background-checks/list-of-fbi-approved-channelers.

2-21

Chapter 2

Step 1: Complete the Applicant Information Form at: https://forms.fbi.gov/departmental-orderwebsite-questionnaire.

•

Option 2: Pay by credit card using the Credit Card Payment Form. 15

•

Important note: Cash, personal checks, or business checks will not be accepted.

Step 4: Review the FBI Identification Record Request Checklist 16 to ensure that everything needed to process the request is included.

Chapter 2

Step 5: Mail the required items listed above—signed applicant information form, fingerprint card, and payment of $18—to the following address: FBI CJIS Division: Record Request 1000 Custer Hollow Road Clarksburg, WV 26306 Note: The request may take approximately five to six weeks to process. 2. Receiving the FBI records and/or response Once the request for the FBI Identification Record is made, if the FBI does not find a record, a “no record” response will be sent. If the FBI does find a criminal history record in the file, an identification record or rap sheet will be sent. The FBI must send the results to the person who requested the record and no one else, pursuant to U.S. Departmental Order 556-73. C.

Obtaining State Criminal Records

In many states, the state summary records may be even more useful than the FBI records. State records often are more complete than FBI records (e.g., someone whose FBI record shows no conviction may actually have a few convictions on the state summary record.) They show all arrests, convictions, and other dispositions that the client received in the state where the record is requested. DHS usually has access to state records. How often DHS requests a copy of the state records is unclear, but its access to state records is fairly clear. If an applicant has lived or been arrested in several states, she should request the state summaries in each of those states. The only disadvantage to getting the state records instead of the FBI records is that the state records may not show out-of-state convictions nor reflect immigration violations such as prior deportations or federal convictions. The procedures on obtaining a California rap sheet are at Appendix F. Each state has its own procedure for obtaining rap sheets. Find the instructions from the relevant state agency in charge of maintaining criminal records submitted by the state courts and law enforcement agencies. Some states may restrict who can review the records of the individual. But, records are available to the subject of the criminal records. WARNING! Some states require going in person to submit fingerprints to obtain your record. Undocumented immigrants and others who have outstanding warrants should not go to a law enforcement agency (e.g., Police or Sheriff’s Department) to have their fingerprints taken. They could be arrested and referred to ICE. Look into other options for submitting fingerprints through

15 16

Form can be found online at: www.fbi.gov/about-us/cjis/background-checks/credit-card-payment-form. Located at www.fbi.gov/about-us/cjis/background-checks/fbi-identification-record-request-checklist.

2-22

Tab Position 1

Immigrant Legal Resource Center June 2017

a private agency or business. In California, for example, individuals can use privately designated businesses such as UPS stores, notary offices, or copy centers. D.

Obtaining Criminal Records from the Local Court Where the Criminal Case Occurred

Call the county court clerk ahead of time or check the court’s county website online to learn the process involved in requesting criminal records in a given county. Some persons may be able to readily access their entire record online. 17 Some courts require the individual to mail in a request form or to submit one online. For other courts, the person may have to go in person. A Note on Destroyed Records: In many jurisdictions, after the passage of certain time, the court destroys the court records. If the relevant court records are destroyed, obtaining a certified letter from the court clerk stating that the records no longer exist should be obtained. Keep in mind that in some cases, the federal government may possess records that local courts no longer maintain. PRACTICE TIP: Call the Public Defender! Another excellent source for local criminal records is your client’s criminal defender, often the county public defender. This file will contain the most details of any other file. Depending on how far back the incident occurred, your client has a right to the file. Public defenders are generally very helpful and may even have access to the rest of the client’s criminal history. They will generally want a release of information before they release the files to you. Have one signed and on file for such circumstances. A sample release of information is provided at Appendix U. Securing Criminal Documents When Your Client Is Detained

If your client is detained, getting criminal documents can be more challenging. If possible, ask the county jail or ICE if you can get your client fingerprinted for an FBI background check. If this isn’t possible, ask your client if they have ever had any contact with law enforcement in any county. Following the directions above, do a criminal record request for each of those counties, even if your client says that they do not think that contact resulted in a conviction. Also, contact your client’s previous criminal defense attorney, as they will generally have access to your client’s full criminal history. F.

Obtaining and Disclosing Juvenile Records

Obtaining juvenile records often involves a more difficult and lengthy process than getting adult criminal records. In some states juvenile records are public, but in other states they are sealed and/or protected from disclosure by state confidentiality laws. Becoming familiar with these laws and procedures for clients who have had some interaction with the juvenile justice is important. 17

For example, Kern County, California has some criminal defendant information available online: www.co.kern.ca.us/courts/crimcal/crim_index_def.asp (last accessed July 2017).

2-23

Chapter 2

Obtaining as many official records as possible relating to a client’s criminal background is very important. This includes obtaining court records from where the criminal case occurred. These records are the most complete and accurate records because they include the underlying details of a particular case as well as the disposition. To request criminal records at the local level, refer to the relevant county.

E.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 2

While it may seem that the youth holds the power to determine whether or not to disclose his own confidential records, in some states only the state court, not the youth, holds the authority to make this decision. To obtain information on a youth’s delinquency history, begin by consulting state and federal rap sheets and seeking information from the youth. (However, many children and youth do not understand their experience in juvenile justice system so the information may be inaccurate.) Four other sources for information are considered here. However, make sure that all applicable laws in requesting such information are followed. In some cases, the entities discussed might provide information to the advocate in violation of local or state law. •

Police or Probation Department. In some cases, the police or probation department may be able to provide advocates with the offense report with a legal release. In other cases, advocates may need to request the police or probation report through their state’s open or public records request laws—that usually requires a legal release. Police and probation agencies likely will deny any requests when the investigation is still open. Also, juvenile names usually are redacted in these records (but generally, advocates should be able to glean the relevant information with the redactions). In order to determine which police or probation department to contact, advocates should look to the jurisdiction where the act took place. While the police or probation department may be a good place to start an investigation, it should usually not end there—since these entities rarely have the court dispositions showing exactly what the youth was charged with what charges, if any, were sustained against her.

•

Public or Private Defender in Youth’s Juvenile Delinquency Case. Advocates can contact the relevant public defender office where the juvenile adjudication took place. Legal releases usually should be sufficient to enable defenders to share their files with immigration advocates. One challenge that many advocates confront is when a young client cannot remember the name or much information about the defense attorney. A good resource to consult is the National Juvenile Defender Center (go to www.njdc.info or call (202) 452-0010).

•

Juvenile Court. The juvenile court will have the most complete formal records of the youth’s delinquency case. This typically includes the petitions filed against the youth, as well as the minute orders showing the resolution of each filed charge. If the delinquency case is closed, the court records will also reflect that fact. If the record is criminal, not juvenile, anyone (without a legal release) can go to the court where the conviction occurred and get access to the judgment and other documents. If the record is juvenile, advocates may need to file a petition with the court to obtain an order granting them access to the file and/or copies of key court documents. Note that this petitioning process can be slow, taking several months or more before the court rules on the petition.

•

District or State Attorney. Advocates may also be able to obtain the state’s (district attorney/prosecutor) file on the delinquency matter if the case is closed. Advocates should be able to do this through their state’s open or public records request laws. Advocates may need to contact the relevant district attorney office and find out what information they need to provide access to these files, beyond a legal release.

2-24

Tab Position 1

Immigrant Legal Resource Center June 2017

PRACTICE TIP: Often the quickest way to obtain juvenile records is to have the youth request records from the juvenile court or other relevant entity. (Note, however, that the youth might be precluded under state law from turning such information over to others, including his immigration attorney, unless given permission from the juvenile court.) Advocates should also be wary of relying upon juvenile records that a client brings in, unless they know that such records were obtained recently and that the whole copy of the file was requested. Otherwise, advocates might be relying upon an incomplete juvenile record.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Confidentiality

Many states maintain confidentiality provisions that prohibit the open disclosure of information concerning youth in the child welfare system and juvenile justice system. These laws carry civil and/or criminal penalties if they are violated. Some of these state laws provide no exceptions for disclosure. Neither the information nor the case file is available to those working outside the system, including immigration attorneys and federal immigration authorities, without first obtaining a court order. These laws may be explicit or implicit as to the limits imposed upon state and county officials in disclosing information about a youth. The rules also may only protect certain information from disclosure, while allowing other information from the case to be freely shared with the public. Local court rules or other ordinances may provide additional confidentiality protections. Example: California Welfare & Institutions Code §§ 827 and 828 provide that juvenile information and court files may only be shared without a court order between agencies working within the state child welfare and juvenile justice systems. The plain language of the statute as well as legislative history provide no exception to automatically share this information with federal agencies, including immigration agencies, without a court order. 19 Similarly, several federal laws protect the confidentiality of information relating to youth. The Federal Juvenile Delinquency Act (FJDA) contains a confidentiality provision applicable to federal juvenile proceedings. 20 Like many states’ confidentiality laws, this federal law strictly limits the disclosure of any and all records related to a federal delinquency proceeding, permitting 18

Tamryn J. Etten and Robert F. Petrone, Sharing Data and Information in Juvenile Justice: Legal, Ethical, and Practical Considerations, 45 Juv. & Fam. Ct. 65(1994). 19 In 2016, California strengthened its confidentiality provisions through the passage of AB899, which added § 831 to the Welfare & Institutions Code. WIC § 831 does three main things: 1.Clarifies that juvenile court records and information are confidential regardless of a youth’s immigration status; 2.Makes clear that federal officials do not get automatic access to juvenile court records and must petition the juvenile court in order to be permitted access; and 3. States that a child’s name and immigration status are protected by California’s confidentiality laws and cannot be disclosed without court permission. 20 18 USC § 5038 (2012).

2-25

Chapter 2

Maintaining the confidentiality of juveniles is a key part of the juvenile justice system. The great majority of states and the federal government have laws in place protecting the confidentiality of information related to youth who come into contact with the juvenile justice system. 18 These laws are based on public policy. Making this information available could permanently attach the “criminal” label to minors, thus harming their rehabilitation and fair treatment.

Chapter 2

disclosure only to certain parties, including the judge and the lawyers involved. Other parties must obtain court permission to access juvenile records, and the law makes no explicit authorization for federal immigration officials or immigration attorneys. Although there is an exception for “law enforcement agencies,” the FJDA clearly states that information regarding a juvenile may only be turned over where it “is related to the investigation of a crime.” 21 PRACTICE TIP: Some places to start research on the relevant state confidentiality laws are the Reporter’s Committee for Freedom of the Press “Juvenile Access Chart,” May 2012 at www.rcfp.org/secret-justice-access-juvenile-justice/juvenile-access-chart and the American Bar Association’s resource, “Think Before You Plead: Juvenile Collateral Consequences in the United States” at www.beforeyouplea.com. For more information on California provisions, visit www.ilrc.org/confidentiality-juvenile-records-california-guidance-immigration-practitionerslight-california%E2%80%99s. Sharing Juvenile Records with DHS. Before turning over documents to USCIS or other federal immigration authorities, ensure that you are complying with applicable state and local confidentiality provisions. This is important for a number of reasons, aside from any civil or criminal sanctions under state law. First, turning over documents can jeopardize future cases where an advocate might want to keep the information from being disclosed. Second, unlimited disclosure can set expectations within USCIS or other relevant agencies that these records should be provided on a regular basis. Third, disregarding confidentiality provisions undermines the important work advocates are doing to ensure that DHS (in particular ICE) does not obtain confidential juvenile court information without going through proper state court channels. PRACTICE TIP: Remember that while confidentiality provisions can be used to your advantage, these laws can also be barriers to accessing the information yourself, even as an attorney of the person subject to the juvenile proceedings. Confidentiality provisions often do not provide exceptions for immigration attorneys or authorities and require both parties to obtain consent from the court first. In many cases, attorneys get around these barriers by having the client obtain the juvenile court file from the juvenile defender for their own use. Advocates and applicants, however, should not automatically turn over these documents in immigration proceedings without obtaining a court order; this could constitute a violation of state law. Confidential Information Sharing in a Defensive Context. If state or local law enforcement agencies have improperly shared confidential information about a client with DHS, advocates should fight the use of that information in proceedings before EOIR. Advocates should consider alerting ICE counsel to the violation of state confidentiality laws and note that ICE is barred from disseminating the information and documents to EOIR without juvenile court permission, if that is the case in your state. If ICE nonetheless chooses to introduce this evidence in court, advocates should explore the ability to challenge or bring a motion to suppress the evidence based on violation of confidentiality laws. State or local confidentiality laws and policies may limit local and state officials’ ability to assist immigration authorities and/or be given the authority to enforce immigration laws through federal programs or agreements. In many states, immigration enforcement against juveniles involves sharing of information regarding their immigration status; 21

18 USC § 5038(a)(3) (2012).

2-26

Tab Position 1

Immigrant Legal Resource Center June 2017

this may violate provisions of state law protecting the confidentiality of information relating to youth and should be challenged. 2. Sealed records

One issue is whether respondents in removal proceedings must disclose juvenile adjudications sealed under state law or whether they are legally entitled not to reveal them at all. Some advocates, for example, take the position that when a juvenile file is under seal they are legally entitled not to disclose it to any entity including federal immigration authorities. In California, this is based on the relevant statute, which provides that once juvenile records are sealed, “the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events, the records of which are ordered sealed.” California Welfare & Institutions Code § 781(a). There is no known legal exception not to disclose a juvenile adjudication for federal immigration purposes. No DHS policy memorandum or federal court case has examined this issue specifically. In a parallel context, state convictions that are completely eliminated under state law by way of expungement or other rehabilitative relief in most circumstances continue to exist for federal immigration purposes. Matter of Salazar-Regino, 23 I&N Dec. 223 (BIA 2002) (en banc) (upholding Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) (en banc)). Furthermore, even if such a conviction or adjudication could not be used against an immigrant as a statutory bar to an immigration benefit, all information arguably could be considered as a matter of discretion. In the context of DACA, this is especially true since USCIS has made it clear that every application is subject to a totality of the circumstances analysis even if the person is not subject to the automatic crimes bar. For these reasons, advocates may want to consider disclosing the existence of sealed juvenile adjudications, even if their nondisclosure is permissible under state law. If this route is chosen, however, the advocate should argue that the information should not be used to be consistent with public policy in the juvenile law area. PRACTICE TIP: Even if an advocate decides to disclose a sealed incident, it is unlikely that she will be able to get permission to reveal any documentation of it since the records are still confidential and the case is now treated as though it never occurred. In other words, the juvenile court may return a petition requesting the record stating that no such records exist. In such a case, 22

Cal. Welf. & Inst. Code § 781.

2-27

Chapter 2

In many states, a juvenile record can be sealed. This prevents the juvenile delinquency record from being shared with the federal government and appearing on the FBI rap sheet. Indeed, sealing in California, for example, has the effect of erasing the record such that no one, including the individual who had the record, can obtain evidence of it. When California seals a juvenile record, they alert the FBI that they are doing so and the FBI is supposed to similarly erase their copy of this information. Unlike state confidentiality provisions, which typically apply across the board, sealing is most often done on a case-by-case basis. Under state laws, some records cannot be sealed because of their severity and others may not be sealed until the youth turns a certain age. For example, in California juvenile records may be sealed only once the youth turns 18. 22 As a result, sealing will not protect a youth if information was shared with the federal government while he or she was still a minor.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 2

advocates may want to note that a petition for the records was filed with the court, but they were unable to gain access to the documents or permission to disclose them.

2-28

Tab Position 1

Immigrant Legal Resource Center June 2017

CHAPTER 3 NON-CRIMINAL GROUNDS OF INADMISSIBILITY

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7 § 3.8 § 3.9 § 3.10

§ 3.12 § 3.13 § 3.14

This chapter addresses the non-crimes grounds of inadmissibility. For crimes-based grounds of inadmissibility, see Chapter 5. In order to understand how the grounds of inadmissibility might affect your client in removal proceedings, you first must assess 1) whether the person is charged as a noncitizen facing grounds of inadmissibility or deportability and 2) whether the relief for which the person might apply requires that the person be “admissible.” In order to answer the first question, you will have to carefully review the Notice to Appear with your client and conduct a thorough intake interview. See Chapter 1 for more information on deportability vs. inadmissibility. See Chapter 2 for information on preparing the case and meeting with your client, and see Chapter 7 for information on taking pleadings. As you read the sections that follow, it is helpful to find the corresponding grounds in your copy of the Immigration and Nationality Act (INA). All inadmissibility provisions are listed within INA § 212(a). The chapter is designed to cover the most common non-crimes based grounds more thoroughly. Some areas, such as the terrorism bars, are actually quite complex. To provide a thorough treatment would require its own manual. As such, this chapter is designed only to introduce you to these complicated issues. Should you have a case where these issues arise, it is

3-1

Chapter 3

§ 3.11

Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse ......................... 3-2 Alien Smuggling ................................................................................................ 3-7 Fraud and Misrepresentation ............................................................................ 3-11 False Claim to U.S. Citizenship ....................................................................... 3-14 Inadequate Documentation and Document Fraud ............................................ 3-21 Likely to Become a Public Charge ................................................................... 3-24 Entry, Admission, and Effective Dates ............................................................ 3-40 Unlawfully Present in the United States without Being Admitted or Paroled ......................................................................................................... 3-41 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver ................... 3-43 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed, and Who Enter or Attempt to Enter without Being Admitted ..................................................................... 3-53 The Differences between “Unlawful Presence” under INA § 212(a)(9)(B) & (C) and “Unlawful Status” ........................................................................... 3-59 Failure to Attend Removal Proceedings ........................................................... 3-61 Past Removal or Deportation/Exclusion .......................................................... 3-62 Other Grounds: Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors ............................................................................................... 3-65

appropriate to consult an expert. Additionally, crimes are very common grounds for inadmissibility and deportability. As previously mentioned, crimes are discussed in their own chapter. See Chapter 5 for a complete discussion of the criminal grounds of inadmissibility. Again, tackling criminal issues in immigration law is very complex and constantly in flux. The ILRC website posts practice advisories at www.ilrc.org, but it is always important to check for updates or consult an expert when tackling new areas.

Chapter 3

If your client is in removal proceedings and facing the grounds of inadmissibility, more often than not she is removable simply for being in the U.S. without documentation: INA § 212(a)(6)(A)(i). See § 3.8 of this chapter. In that situation, other grounds of inadmissibility become more important for establishing eligibility for relief. For example, someone here without documentation might still qualify to adjust status. To adjust status to permanent resident, that person will have to demonstrate that she is admissible to the United States. To understand what your client must prove, you will need to consider what relief is available. See Chapters 9 through 12 for an overview of possible relief from removal. Some of the inadmissibility grounds have waivers or exemptions for certain classes of people. However, also keep in mind that besides these specific waivers and exemptions, broad general waivers are available for U visa and T visa applicants, among others, which can help people overcome many of these inadmissibility grounds even if it may seem like they do not fall under the specific waiver authorized for a particular inadmissibility ground. Therefore, to understand what inadmissibility grounds may be waived or exempted, you also need to consider what relief your client will be applying for. PRACTICE TIP: USCIS has undertaken a comprehensive review of its adjudication and customer service policies. The result of this review is the USCIS Policy Manual, which is the agency’s centralized online repository for USCIS’ immigration policies, available at www.uscis.gov/policymanual. The USCIS Policy Manual will ultimately replace the Adjudicator’s Field Manual (AFM) and the USCIS Immigration Policy Memoranda. Although the USCIS Policy Manual supersedes previous policy memoranda and the AFM, the USCIS Policy Manual is not complete in many subjects. The ILRC urges advocates to check the USCIS website and Policy Manual regularly for updates, and to rely on previous USCIS policy statements where the current USCIS Policy Manual is silent or incomplete. § 3.1 Health-Related Grounds: Communicable Diseases, Required Vaccinations, Dangerous Disorders, and Addiction and Abuse Health-related issues most often arise in the context of consular processing, but can also arise in removal proceedings. A person who is able to adjust status in removal proceedings through a current visa petition must show that she is admissible, including admissibility under the healthrelated grounds. To see if a person will be inadmissible based on a health-related ground, DHS requires the person to undergo a medical exam by a doctor approved by DHS. If the person is going to be adjusting status, she meets with a DHS-designated doctor called a “civil surgeon.” If the person is consular processing, the exam will instead be performed by a doctor approved by the U.S. consulate. In the consular processing context, this DHS-designated doctor is called a “panel physician.” The applicant cannot go to any doctor she wishes; it must be a government-

3-2

Tab Position 1

Immigrant Legal Resource Center June 2017

approved doctor from the official list. 1 When the test results are ready, the doctor will give the person a sealed envelope containing the results to submit to the immigration court, DHS, or the consulate. The person must leave the envelope sealed. She can, however, ask the doctor to tell her the results of the test, and should request a “patient copy” from the doctor before the envelope is sealed.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PRACTICE TIP: Explain to your clients that they are entitled to a copy of the medical exam prepared by the civil surgeon. Although they must submit an official copy in the still-sealed envelope for purposes of their immigration case, the doctor can provide an extra copy to the applicant for their own records. As the representative, you will want to review the results and check for errors prior to submission. There are four grounds of inadmissibility related to health. See INA § 212(a)(1)(A). A.

Communicable Diseases: INA § 212(a)(1)(A)(i)

People who have certain communicable diseases are inadmissible. If they have certain U.S. citizen or permanent resident relatives, however, they can apply for a waiver of this ground under INA § 212(g)(1).

Other diseases that are designated communicable diseases are listed in the HHS regulation at 42 CFR § 34.2(b). Active tuberculosis and sexually transmitted diseases, such as gonorrhea and syphilis, are among those listed presently in the regulation as bases for inadmissibility. A person testing positive for these illnesses can have the disease treated and cured and then qualify for immigration. Or, if an illness such as tuberculosis cannot be quickly cured, the person can apply for a waiver under INA § 212(g)(1). 1

To find the list of civil surgeons, go to www.uscis.gov and type, “Find a Doctor” in the search box. For a list of the designated panel physicians/clinics, you need to look at the U.S. consulate-specific instructions and information. 2 Despite its elimination from the statute, those who were HIV+ continued to remain inadmissible for almost a year and a half because it had not been removed as a condition in the regulation promulgated by HHS. See 42 CFR § 34.2(b). The statute gives HHS the authority to determine through regulation what diseases constitute “communicable diseases of public health significance,” and therefore trigger inadmissibility. Effective January 4, 2010, however, HHS through the Centers for Disease Control and Prevention (CDC) issued a final rule to remove HIV from the definition of “communicable disease of public health significance” and to remove HIV testing from the scope of the medical screening process for immigrants.

3-3

Chapter 3

Generally, the Department of Health and Human Services (HHS) decides which diseases or conditions make a person inadmissible. Previously, the only condition specifically listed in the INA was “infection with the etiologic agent for acquired immune deficiency syndrome,” meaning anyone who was HIV positive. However, at the end of July 2008, former President Bush signed the reauthorization of the President’s Emergency Plan for AIDS Relief (PEPFAR), which removed infection with HIV from the INA as a communicable disease triggering inadmissibility. 2 Thus, immigrants seeking admission are no longer inadmissible based solely on the ground that they are HIV positive and will not be required to undergo HIV testing as part of the required medical examination.

In October 2008, the HHS further amended 42 CFR § 34.2(b), by adding two new categories of diseases that may trigger inadmissibility: (1) quarantinable diseases designated by Presidential Executive Order, and (2) diseases that qualify as a “public health emergency of international concern which require notification to the World Health Organization (WHO) under the revised International Health Regulations (IHR) of 2005.” 3 These new categories, however, only apply to examinations performed in consular processing by “panel physicians” and will only take effect when HHS directly notifies panel physicians in the affected areas. 4 The focus of these provisions thus far has been screening for Severe Acute Respiratory Syndrome (SARS) and Ebola. B.

Failure to Prove Vaccinations: INA § 212(a)(1)(A)(ii)

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a ground of inadmissibility for failing to present evidence of vaccination against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B, hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices (ACIP). The ACIP has the power to recommend additional vaccinations. See INA § 212(a)(1)(A)(ii). Effective December 14, 2009, the Centers for Disease Control and Prevention (CDC) adopted the following criteria in deciding which ACIP-recommended vaccines immigrants seeking admission to the United States must receive:

Chapter 3

(1) the vaccine must be age-appropriate as recommended by the ACIP for the general U.S. population; and (2) the vaccine must do at least one of the following: (a) protect against a disease that has the potential to cause an outbreak; or (b) protect against a disease that has been eliminated in the United States or is in the process of elimination in the United States. 5 The current vaccine tables for children and adults based on the ACIP recommendations for the U.S. population can be found at www.cdc.gov/vaccines/schedules/index.html. For further information, see Technical Instructions for Civil Surgeons and Panel Physicians, www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. The proof of previous vaccination may be waived if at the time of seeking admission the applicant then complies and gets the vaccination, a civil surgeon or similar official certifies that the vaccination would not be medically appropriate, or the vaccination would be contrary to the person’s religious or moral beliefs. See INA § 212(g)(2). This provision applies to visa and adjustment applications filed after September 30, 1996.

3

See www.cdc.gov/immigrantrefugeehealth/pdf/addendum-ti-panel.pdf. See 85 Interpreter Releases 2714 (Oct. 13, 2008) and 85 Interpreter Releases 2830 (Oct. 27, 2008) for more information. 5 For more information, see Centers for Disease Control and Prevention, New Vaccine Criteria for U.S. Immigration, (Nov. 2009), www.cdc.gov/immigrantrefugeehealth/pdf/revised-fact-sheet-fed-reg-noticevaccination-immigration.pdf. 4

3-4

Tab Position 1

Immigrant Legal Resource Center June 2017

C.

Mental or Physical Disorder: INA § 212(a)(1)(A)(iii)

People who have a mental or physical disorder and related behavior, which may pose a danger to themselves or others, or who have had such a disorder in the past that is likely to recur, are inadmissible. See INA § 212(a)(1)(A)(iii). For example, this ground might affect people who have been committed to mental institutions for violent behavior, have been diagnosed as sexual predators, have domestic violence arrests or convictions, or even are suicidal. The CDC has released Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-related Disorders for Panel Physicians. 6 These instructions came into effect on June 1, 2010, and should be consulted in the event you have a client who may potentially have such a disorder. This ground may be waived if the person can post a bond. INA § 212(g).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Alcoholism can be a basis for inadmissibility under this ground, and drunk-driving convictions can serve as evidence of alcoholism. The “Technical Instructions for Medical Examinations of Aliens,” published by CDC at www.cdc.gov, lists alcoholism as a threatening mental or physical disorder that can serve as a basis for inadmissibility. 7 However, these Instructions also state that alcohol dependence or abuse must be considered the same as any other mental disorder, and requires associated harmful behavior to be classified as a medically inadmissible condition.

• • • • •

An arrest or conviction for a DUI or DWI while driver’s license suspended/revoked/restricted at time of arrest due to other alcohol-related driving incident; or An arrest or conviction where personal injury or death resulted from the incident; or A conviction for an alcohol-related driving incident where the conviction was a felony or where a sentence of incarceration was imposed; or A single drunk driving arrest or conviction within the last five years; or Two or more drunk driving arrests or convictions within the last ten years. 9

This standard is much stricter than the previous standard and it demonstrates that the government is taking alcoholism-related offenses much more seriously. Nevertheless, a person should not be found inadmissible for a record of drunk driving arrests or convictions unless a panel physician or civil surgeon has made two findings: (1) a diagnosis of mental disorder (alcohol abuse) and (2) 6

These instructions can be obtained at www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/mental-paneltechnical-instructions.html. These were last updated to reflect changes to the DMS that came into effect in 2013. 7 See www.cdc.gov/immigrantrefugeehealth/exams/ti/index.html. See also 8 USCIS Policy Manual B.7 (Jan. 2015) available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume8-PartBChapter7.html [hereinafter “8 USCIS-PM”], which sets out the current guidelines for physical and mental health disorders. These new instructions rely on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 8 8 USCIS-PM B.7. 9 8 USCIS-PM B.7.

3-5

Chapter 3

USCIS updated its policy guidelines to require a medical re-examination for alcoholism if the applicant has a “significant criminal record of alcohol-related driving incidents.” 8 USCIS defines a “significant criminal record of alcohol-related driving incidents” as:

current harmful behavior or a history of harmful behavior related to the disorder that is likely to recur in the future, such as drunk driving or domestic violence. 10 After a re-examination has taken place, a USCIS officer cannot override the medical examiner’s findings. In “exceptional” circumstances only, a USCIS officer may request that CDC review a civil surgeon’s findings. 11 Note that under INA § 212(a)(10)(B), an “accompanying person” may be inadmissible. Under this section, if someone is inadmissible and certified to be helpless due to a physical or mental disability, sickness, or infancy, the person accompanying him or her is also inadmissible if needed for the protection or guardianship of the helpless person. D.

Drug Addicts and Drug Abusers: INA § 212(a)(1)(A)(iv)

Drug addicts and drug abusers are inadmissible.

Chapter 3

This ground of inadmissibility applies to current, not past, abuse or addiction. This interpretation stems from the statutory language because the statute punishes a person who is determined “to be” an abuser/addict, which is the present tense. (A person who has been an addict or abuser at any time since admission into the United States is deportable, however. See Chapter 4.) It is important to note that “current” drug abuse or addiction will include any use in the past year. Theoretically, a doctor (not an immigration official) should first decide if a person is a drug abuser or addict. The Code of Federal Regulations defines “drug abuse” as “the non-medical use of a controlled substance listed in § 202 of the Controlled Substances Act, which has not necessarily resulted in physical or psychological dependence,” and “drug addiction” as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 USC § 802) which has resulted in physical or psychological dependence.” 42 CFR 34.2 §§ (h) & (i). The CDC, which is part of HHS, has defined substance abuse and dependence in the “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and SubstanceRelated Disorders,” at www.cdc.gov/immigrantrefugeehealth/pdf/mental-health-pp-ti.pdf. This document indicates that a finding of substance dependence (drug addiction) or repetitively abusing substances (drug abuse), will only be made if the noncitizen meets current DSM 12 diagnostic criteria for substance dependence or abuse with any of the specific substances listed in Schedules I through V of § 202 of the Controlled Substances Act. Note that only abuse or addiction in regards to a controlled substance falls within this ground—abuse or addiction of alcohol is not considered here. The current CDC standards are a vast improvement over prior versions, when the CDC considered any drug use beyond mere experimentation to be drug abuse. This question of drug abuse may come up in adjustment and removal proceedings in the United States, in addition to consular processing abroad. Advocates should be prepared to make sure that 10

Id. Id. 12 DSM stands for the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, which provides a common language and standard criteria for the classification of mental disorders. DSM-5 was published May 18, 2013, and is the current version as of this writing. 11

3-6

Tab Position 1

Immigrant Legal Resource Center June 2017

any finding of drug abuse or addiction is truly based on the criteria set forth in the CDC’s “Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders,” rather than based on speculation alone.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PRACTICE TIP: Prepare your client’s testimony carefully! Think about the possible consequences of admitting a drug problem or addiction, and remember that this ground does not require a drug conviction. Make sure you have considered whether grounds of admissibility or deportability might be triggered. Admitting to drug use will not impact certain forms of relief, but could affect others, such as adjustment of status, for which your client must submit the medical evaluation. The standard for full “remission” for “drug abusers” under the DSM is a 12-month period of no substance use or associated harmful behavior. This was updated on June 1, 2010 from a prior three-year required remission period. In practice, advocates have greater issues with this ground of inadmissibility in the context of consular processing. Sometimes the panel physician will make a finding of “drug abuse” even if the applicant admits to only using drugs on a couple occasions. The panel physician still retains discretion to determine a longer period, and may suggest or require that the applicant undergo random drug testing, take drug abuse classes, etc., in order to meet the criteria for “remission.” When the remission period is over, the applicant must undergo a new medical exam.

There is no waiver available for this ground of inadmissibility. PRACTICE TIP: Persons whose blood tests reveal traces of marijuana or other drugs (which can remain in the blood for some time, even many months) may be held inadmissible. Warn your clients before they go to see a civil surgeon or to a visa appointment—especially teenagers and young adults! You may want to speak to the young person separately from the parents. Children that have been living within the United States and are sent back to their home country for consular processing must be thoroughly screened for this issue and prepared for the medical exam prior to departure. Should this issue arise, the child may end up separated from parents until she can show remission. § 3.2

Alien Smuggling

Noncitizens who in any way and at any time help bring other noncitizens illegally into the United States may be inadmissible. See INA § 212(a)(6)(E). An “alien smuggler” for purposes of the grounds of inadmissibility and deportability includes anyone who “knowingly has encouraged, induced, assisted, abetted or aided” any other noncitizen to enter or try to enter the United States. Unlike the deportation ground (discussed in Chapter 4), which is triggered only when committed during certain time periods (prior to the date of entry, at the time of any entry or within five years of the date of any entry), the inadmissibility ground will be triggered when the act is committed at

3-7

Chapter 3

Example: Rebeca admitted to the panel physician she smoked marijuana two or three times, with the last occasion nine months ago. She is denied as a “drug abuser” but can reapply in three months’ time—because that will be the point at which she has been in “remission” for 12 months. She should arrange for random drug testing and take classes in her country while she awaits the expiration of the remission period, and have the test results sent directly from the testing facility to the panel physician.

any time. A person who is inadmissible for alien smuggling also is ineligible to establish good moral character under INA § 101(f), which is a requirement for naturalization, cancellation of removal for non-permanent residents, self-petitioning under the Violence Against Women Act, registry, and one form of voluntary departure. Before 1990, only people who smuggled noncitizens in exchange for money were inadmissible. The post-1990 ground harshly imposes inadmissibility even on people who have sympathetic reasons for helping family members enter the United States. You must inform your clients of the consequences of telling DHS that they helped family members or others to come in illegally. If the person is not eligible for a waiver, you may need expert advice to fight the case, and community support to influence the DHS not to proceed against the person. NOTE: Alien smuggling is also a ground of deportability. A person who commits alien smuggling—even if there is no conviction—can be found deportable, if it occurred at the time of any entry, prior to any entry, or within five years of any entry. See INA § 237(a)(1)(E). Furthermore, a conviction for alien smuggling is an aggravated felony, unless it was a first offense for smuggling only a parent, spouse, or child. See INA § 101(a)(43)(N).

Chapter 3

A.

Definition of Alien Smuggling

The statute defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided” any other person to enter or try to enter the United States. INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i). These provisions are worded very broadly and include sending money to someone to pay a smuggler, as well as merely encouraging someone to enter the United States illegally. However, the person must know she is helping someone enter illegally. If she was not aware that the person did not have legal status to enter, she is not inadmissible under this ground. Bringing one’s own family members is alien smuggling if the situation otherwise meets the definition for alien smuggling. Case law is helpful in understanding how this ground can be applied. In Altamirano v. Gonzales, 427 F.3d 586, 591-96 (9th Cir. 2005), the Ninth Circuit reversed a finding of inadmissibility for alien smuggling where the petitioner was a passenger in a vehicle and knew that someone was hiding in the trunk. The court held that: The plain meaning of this statutory provision requires an affirmative act of help, assistance, or encouragement. Here, because Altamirano did not affirmatively act to assist Martinez-Marin, she did not engage in alien smuggling. That she was present in the vehicle and knew that Martinez-Marin was in the trunk does not amount to a violation of § 212(a)(6)(E)(i). Altamirano v. Gonzales, 427 F.3d at 592. In Aguilar-Gonzales v. Mukasey, 534 F.3d 1204 (9th Cir. 2008), the Ninth Circuit also held that merely being present and acquiescing to another’s fraudulent use of a document is not an affirmative act sufficient to constitute alien smuggling. In that case, despite petitioner’s multiple refusals to allow her father to borrow her son’s U.S. birth certificate to smuggle two infants into the United States, she finally agreed to accompany him and allow him to use and present the birth certificate to immigration authorities because she feared that he would stop paying the mortgage

3-8

Tab Position 1

Immigrant Legal Resource Center June 2017

on her house if she did not do so. The Ninth Circuit found that she had not committed alien smuggling. In the Sixth Circuit, the court reversed a finding of inadmissibility for alien smuggling for a legal permanent resident who shared driving responsibilities with three friends, one of whom was an illegal immigrant, where the lawful permanent resident believed the illegal immigrant could travel back and forth across the border because he was in the process of applying for a green card. Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

In the Second Circuit, the court upheld a finding of alien smuggling where the noncitizen lied at the border about another person’s residency and the whereabouts of his passport, admitted to the border patrol officers that she previously agreed to accompany the other person at the Canadian border as he tried to enter the United States, and was aware the other person had previously been deported. Chambers v. Office of Chief Counsel, 494 F.3d 274 (2nd Cir. 2007). These cases stand for the proposition that the statutory definition of alien smuggling requires an affirmative act of help, assistance, or encouragement, such as paying alien smugglers, making the arrangements to get aliens across the border, or providing false information and documents to immigration authorities. Mere presence during the actual act of alien smuggling with knowledge that it is being committed is not enough, at least in the Sixth and Ninth Circuits. See Tapucu v. Gonzales, Altamirano v. Gonzales, Aguilar-Gonzales v. Mukasey, and Chambers v. Office of Chief Counsel, above.

13

In United States v. Lopez, the Ninth Circuit reversed a conviction under 8 USC § 1324(a)(2) because the evidence showed that the defendant did not aid and abet initial transportation but just transported undocumented aliens within the United States and did so only after the initial transporter had dropped the aliens off inside the country. See also Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995) (conviction for illegally transporting undocumented immigrants does not trigger inadmissibility because the statute only refers to aiding and abetting); Matter of I-M-, 7 I&N Dec. 389 (BIA 1957) (transporting undocumented persons within the U.S. does not necessarily create inadmissibility). 14 59 F.3d 504, 509 n. 3 (5th Cir. 1995). 15 Matter of I-M-, 7 I&N Dec. 389 (BIA 1957).

3-9

Chapter 3

The Ninth Circuit has also found that alien smuggling includes knowingly participating in a prearranged plan to bring people to the border and then meeting them on the U.S. side of the border to transport them within the United States. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). In that case, the petitioner picked up seven individuals in Mexico, drove them to a town near the border where they made arrangements with a smuggler to cross, and then met up with them again once they were within the United States to drive them from Arizona to Washington. The court also found, however, that mere harboring or transporting of others alone is not enough to constitute alien smuggling. See also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007). 13 This finding is consistent with the Fifth Circuit, which stated, in Rodriguez-Gutierrez v. INS, 14 that a conviction for illegally transporting undocumented immigrants does not trigger inadmissibility for smuggling because the statute only refers to aiding and abetting, not transporting. An old BIA case, Matter of I-M-, also found that transporting undocumented persons within the United States does not necessarily create inadmissibility for alien smuggling. 15

IMPORTANT NOTE: The aggravated felony smuggling ground does include transporting undocumented immigrants. See INA § 274(a). 16 However, the definition of smuggling under INA § 101(a)(43)(N) and § 274(a) is different from the definition in the inadmissibility and deportability grounds we are discussing here: INA § 212(a)(6)(E) and § 237(a)(1)(E). These grounds only apply to people who have knowingly assisted, abetted, etc. the entry of an unauthorized person. Smuggling may also include affirmative assistance provided after the person who was smuggled entered the country, even though the assistor had no intention to help the person enter in the first place. The Ninth Circuit held that alien smuggling includes an agreement by a family member to pay a smuggler after the person is already in the United States, but before the smuggler releases or ceases to transport the person. 17 In that case, the petitioner knew that his brother planned on crossing the border illegally, but did not agree to help him until he had crossed the border, before the smuggler released and ceased to transport him. The petitioner had also collected money from his other siblings and arranged payment to the smuggler.

Chapter 3

Example: Maria went to Mexico and physically helped her younger brother cross the border without inspection. She is inadmissible as an alien smuggler. Example: Sandra arranged for her elderly mother to enter the United States illegally in 1987. Sandra contacted a coyote to bring her and helped pay for the expenses, although Sandra wasn’t there herself. Sandra is inadmissible as an alien smuggler. PRACTICE TIP: Make sure to ask your client whether she ever helped a family member enter the United States before giving testimony in court. You do not want to be surprised by an affirmative answer on cross-examination. If you ask clients whether they are a “smuggler,” they will often say no, even if they helped a family member. This is because many people understand a smuggler to be someone who moves people across the border for commercial gain; they might not think about helping a spouse, child, sister, or brother to come to the United States as “smuggling.” WARNING! Before you concede that your client is inadmissible or deportable, make sure that she knew that the person she was helping or encouraging did not have the legal right to enter the United States. If a violation was not knowing, then it does not trigger this ground. Also make sure that the acts do not involve merely harboring or transporting others within the United States or merely being present or acquiescing to the illegal entry of others as the person may have engaged in alien smuggling. If any arguments are present, deny removability and fight against a finding of alien smuggling.

16

INA § 274(a) includes “transporting”; see also Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999); U.S. v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002). 17 Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007); see also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (“We hold that although all of the elements of the ‘bringing to’ offense [under 8 USC § 1324(a)(2)] are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them—in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border”).

3-10

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Exception and Waiver

In some cases a waiver for, or possibly an exemption from, alien smuggling might be available. While only certain types of people will qualify for a waiver or an exemption, one requirement is the same for any waiver or exemption of this ground: the person must have smuggled only his or her parent, spouse, son, or daughter.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Example: In the example above, Maria smuggled her brother. We know that she cannot even apply for a waiver or exemption, because she did not smuggle a parent, spouse, son, or daughter. She will not be eligible for one of the special waivers for alien smuggling. The waiver for this ground is located at INA § 212(d)(11). To qualify for the waiver, the person must be an applicant for adjustment of status as an immediate relative and have smuggled their spouse, parent, son, or daughter. Apart from the waiver, there is an exception to this ground for those who could benefit from “family unity.” A person is automatically exempted from the alien smuggling ground of inadmissibility if she is eligible for “Family Unity” as originally enacted in 1990. For more information, see Unit 16 of the ILRC’s Guide for Immigration Advocates. In particular, the person must: •

•

For people who fit the above criteria, they are automatically exempt from this ground of inadmissibility and INA § 212(a)(6)(E)(ii) does not apply to them. They do not need to file a waiver for this ground. However, as you can see, this exemption only serves a limited group of people. § 3.3

Fraud and Misrepresentation

Section 212(a)(6)(C)(i) of the INA states that: An alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States, or other benefit provided under this Act is inadmissible. This means that people who use fraudulent documents such as a forged U.S. passport or green card are inadmissible. People who “misrepresent a material fact” to DHS are also inadmissible. USCIS issued recent guidance on how it determines whether the fraud and misrepresentation inadmissibility ground has been triggered. It explains that although fraud and misrepresentation

3-11

Chapter 3

• •

Be an “eligible immigrant” for Family Unity—which includes the spouse, or child of a legalized alien (“child” is defined as less than 21 years of age as of one of two specific dates in 1988); Have been physically present in the United States on May 5, 1988; Be immigrating as a second preference beneficiary, or immediate relative, or as someone who is applying for Family Unity; and Have, before May 5, 1988, smuggled only a spouse, parent, son, or daughter.

can be two different actions, they share common elements, and the analysis to determine whether either a fraud or misrepresentation occurred is similar. 18 A.

Materiality

Misrepresenting a material fact is more than simply telling a lie. It must be a lie that could make a difference in the government’s decision in an immigration matter, such as a visa, admission, or adjustment. The lie does not have to actually influence the government’s decision; it only matters that it could have. 19 Also note that the misrepresentation must be to a U.S. government official; misrepresentations made to airline officials, for example, do not fall within this ground of inadmissibility. 20 If the lie was not material (important to deciding the case), the person is not inadmissible. Example: Estella immigrated through her U.S. citizen husband. During her interview, she told two lies to the consular officer when she got her immigrant visa. First, she told the officer that she had no other relatives, besides her husband, living in the United States. Second, she told the officer that she and her husband were still married, when in fact they are divorced.

Chapter 3

The first lie was not material. The fact that Estella has other relatives in the United States would not have changed the officer’s decision. While this was a lie, it was not material and therefore was not visa fraud. The second lie was material. If the officer had known Estella and her husband were divorced, he would not have granted the visa, which was based on the marriage. Estella committed visa fraud. USCIS policies instruct officers to follow a “test” for materiality provided by the U.S. Supreme Court in Kungys v. United States, 485 U.S. 759 (1988), which requires that for false statements to be material they must have been “predictably capable of affecting the decisions of the decisionmaking body.” 21 The policies further instruct officers in applying this standard to consider whether either: 1) the alien is inadmissible, removable, or ineligible for the benefit sought under the true facts; or 2) the misrepresentation “tends to cut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she is inadmissible.” 22

18

8 USCIS-PM J.2(A). Note guidance regarding INA § 212(a)(6)(C)(i) in prior memoranda and the Foreign Affairs Manual (FAM) has been superseded by policy guidance now found in the USCIS online policy manual. Remember to check back often for updates to the manual: www.uscis.gov/policymanual. 19 See Matter of D-R-, 25 I&N Dec. 445, 450-51 (BIA 2011) (It is “not necessary for the Government to show that the statement actually influenced the agency, only that the misrepresentation was capable of affecting or influencing the government’s decision”). 20 See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 21 8 USCIS-PM J.3(E). 22 Id.; see also Matter of S- and B-C-, 9 I&N Dec. 436 (BIA 1961).

3-12

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Willfulness

A person will not be found inadmissible under INA § 212(a)(6)(C)(i) unless the misrepresentation was willful, meaning that it was “deliberate and voluntary.” 23 This means that a misrepresentation cannot be based on “innocent mistake, negligence or inadvertence,” 24 and that the person must know that the statement was false at the time she made it. 25

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Individuals who are mentally incompetent and small children incapable of forming an intent to deceive will not be inadmissible under this section, should applications made on their behalf contain misrepresentations. 26 C.

Silence or Omission

In determining whether a misrepresentation has been made, it also is necessary to distinguish between misrepresentation of information and information that was merely concealed by the alien’s silence. “Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA § 212(a)(6)(C)(i).” 9 FAM 40.63 N4.2.

D.

Burden of Proof

In general, individuals seeking an immigration benefit must prove by a preponderance of evidence that they do not fall under any ground of inadmissibility. Absent evidence that the applicant used fraud or misrepresentation to obtain an immigration benefit, the applicant will have met the burden of proving she is not inadmissible under INA § 212(a)(6)(C)(i). 27 Where evidence exists that would permit a reasonable person to conclude that an individual is inadmissible under INA § 212(a)(6)(C)(i), the individual has the burden of proving by a preponderance of the evidence any one of the following: • • •

There was no fraud or misrepresentation; or That any fraud or misrepresentation was not intentional or willful; or That any fraud or misrepresented fact was immaterial; or

23

Matter of D-R-, supra, at 451 n.3. Emokah v. Mukasey, 523 F.3d 110, 117 (2nd Cir. 2008). 25 See, e.g., Atunnise v. Mukasey, 523 F.3d 830, 834-38 (7th Cir. 2008); Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994). 26 See Singh v. Gonzalez, 451 F.3d 400, 409 (6th Cir. 2006). The BIA and other circuits have cited to Singh favorably when distinguishing other situations involving imputation of parental intent. 27 See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 24

3-13

Chapter 3

Example: Maria adjusted her status to become a lawful permanent resident through her U.S. citizen husband. When she first came to the United States, she used a visitor visa that she obtained although she was already engaged to her husband and was planning to remain in the United States and become a permanent resident. However, upon her arrival to the U.S. the consular officer did not ask her how long she was going to stay, or whether she had any relatives in the United States. He just looked at her passport and granted her admission. Maria has not committed fraud or misrepresentation, because she never told a lie to a consular or immigration officer.

• • E.

That the fraud or misrepresentation was not made to procure a visa, admission, or some other benefit; or That the misrepresentation was not made to a U.S. government official. 28 Timely Retraction

An applicant who timely and voluntarily retracts a misrepresentation may use such retraction to eliminate the consequences, including inadmissibility. 29 A retraction is only timely if it is made both within a short period of time and not in response to the fact that the individual is about to be found out by a DHS or consular officer. 30 F.

Waivers and Exemptions

A waiver of inadmissibility is available for people who have certain citizen or permanent resident relatives and can show that these family members would suffer extreme hardship if the person were to be removed, or for VAWA applicants. See INA § 212(i). Applicants for adjustment of status under § 245(h) (special immigrant juvenile status) and VAWA will also be exempt from inadmissibility under INA § 212(a)(6)(C)(i).

Chapter 3

§ 3.4

False Claim to U.S. Citizenship

Any person who falsely claims to be a U.S. citizen for any purpose or benefit under the INA, or under any other federal or state law, is inadmissible under INA § 212(a)(6)(C)(ii). This provision applies only to false representations of U.S. citizenship made on or after September 30, 1996, although false claims prior to that date may still fall within the visa fraud misrepresentation ground of inadmissibility at INA § 212(a)(6)(C)(i) (see above). No conviction is required. This ground of inadmissibility is harsh because it is broadly written and because the INA provides no general waiver. However, a false claim does not bar all forms of relief. See Subsection C, below. This provision punishes people for claiming U.S. citizenship for entry into the United States, and for any other purpose under any federal or state law. As written, DHS could apply these provisions to a broad range of scenarios, including someone who is underage and uses the U.S. passport of an older friend to get into a bar and have a drink, someone who votes in an election not realizing that she is not permitted to vote, or even someone who came to the United States as a baby and believes herself to be a U.S. citizen. 31 PRACTICE TIP: Make sure you know the date of any false claim made by your client. Any false claim of U.S. citizenship made before September 30, 1996 will not trigger inadmissibility under this ground. But beware, a false claim before that date might still be a material misrepresentation. See § 3.3.

28

8 USCIS-PM J.3(A). Id.; see also Matter of R-R-, 3 I&N Dec. 823 (BIA 1949); Matter of M-, 9 I&N Dec. 118 (BIA 1960) (also cited by Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999)). 30 Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949). 31 There is an exception for children that meet specific requirements. See discussion following. 29

3-14

Tab Position 1

Immigrant Legal Resource Center June 2017

A.

What Constitutes a False Claim to Citizenship?

By its plain language, the false claim to U.S. citizenship ground enacted in 1996 requires a showing that the false representation was made for a specific purpose—to satisfy a legal requirement or obtain a benefit that would not be available to a noncitizen under the INA or any other state or federal law. The U.S. government clarified in 2013 that the person must have knowingly made the false claim to U.S. citizenship to fall within this ground. A noncitizen claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense. 32 There is also an explicit exception for false claims made by certain children of U.S. citizens, discussed below.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

According to several circuit courts and USCIS, the person to whom the false claim to citizenship is made does not have to be a U.S. government official, but can be for purpose of private employment, where the misrepresentation is on an I-9 Form or sworn statement. 33 Courts have found the following acts to constitute false claims to U.S. citizenship: • • • • •

Falsely representing oneself as U.S. citizen to obtain a U.S. passport; 34 Using a false U.S. passport to enter the U.S.; 35 Using a false U.S. passport to obtain a state driver’s license; 36 Falsely representing oneself as a U.S. citizen to avoid removal proceedings; 37 and Claiming U.S. citizenship in an attestation or I-9 for private employment. 38

However, some limitations have been placed on the application of this provision. For example, one court found that a false claim of U.S. citizenship to a police officer was not made for any purpose or benefit under the INA, even though the individual in question was undocumented, because the assumption that anyone who is undocumented would be making a false claim for any benefit or purpose under the Act was too speculative. Castro v. Attorney General of the U.S., 671 F.3d 356 (3rd Cir. 2012). In addition, in an unpublished BIA decision, a conditional resident’s 32

9 FAM 40.63 N11(b)(1); AFM 40.6(c)(2)(B)(i). This 2013 addition to the FAM was based on an opinion issued by the Department of Homeland Security’s Office of the General Counsel (DHS) in 2012. 33 Ferrans v. Holder, 612 F.3d 528 (6th Cir. 2010); Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007). 34 Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009); see also Jackson-Omier v. Gonzales, 246 Fed. Appx. 1 (1st Cir. 2007) (unpublished); Suarez v. Attorney General, 2008 U.S. App. Lexis 24013 (3rd Cir. 2008) (unpublished). 35 Almendarez v. Mukasey, 282 Fed. Appx. 326 (5th Cir. 2008) (unpublished). 36 Lara-Rivas v. Mukasaey, 270 Fed. Appx 526 (9th Cir. 2008) (unpublished). 37 Matter of Richmond, 26 I&N Dec. 779 (BIA 2016). 38 Crocock v. Holder, 670 F.3d 400 (2nd Cir. 2012); Ferrans, 612 F.3d, cited above; Theodros, 490 F.3d, cited above.

3-15

Chapter 3

Some other examples of false claims to citizenship that the government may also charge include: oral statements made in response to questioning by an officer to obtain a benefit such as entry into the United States, a signature on a voter registration card that specifically asked the question “Are you a U.S. citizen?,” false declarations of citizenship to obtain a credit card, bank financing, mortgage, student financial aid, or health insurance, and any other declaration under oath or penalty of perjury, in writing or orally, that the noncitizen was a U.S. citizen in order to obtain a benefit under the INA or other state or federal laws.

purchase of a firearm by making a false claim to U.S. citizenship was not considered for “any purpose or benefit” under the Act because the person in question did not gain any benefit from the false claim, since he was eligible to purchase a firearm as a conditional permanent resident. Example: Martha claimed U.S. citizenship so that she could get in-state tuition at her state university. The DHS could assert that she is inadmissible for a false claim to citizenship. Luckily, she made this claim before September 30, 1996 and therefore she does not fall within INA § 212(a)(6)(C)(ii). Example: Silvia always thought she was a U.S. citizen, until she finally learned she had been born in Mexico. Practitioners should argue that she is not inadmissible for any false claims to citizenship that she made, because she did not know they were false. Example: Joaquin intentionally represented himself as a U.S. citizen at the border in San Diego on January 12, 2000 in order to gain admission to the United States. Because he willfully misrepresented a material fact to a government official in order to gain a benefit under the INA and it took place after September 30, 1996, he is inadmissible both for misrepresentation of a material fact under INA § 212(a)(6)(C)(i) and for a false claim to U.S. citizenship under § 212(a)(6)(C)(ii).

Chapter 3

Example: Barbara used her cousin’s U.S. birth certificate to apply for a Social Security card and driver’s license in 1995. Barbara is not inadmissible for a false claim to U.S. citizenship because her false claim took place before September 30, 1996. She may have other problems, however. Example: Omid and Marianna each arrive at a U.S. port of entry. Marianna uses a false “green card” to claim she is a legal permanent resident, but Omid uses a false U.S. passport to claim he is a U.S. citizen. Both are inadmissible for misrepresenting a material fact under INA § 212(a)(6)(C)(i). However, Omid will face far harsher consequences for his false claim to U.S. citizenship under § 212(a)(6)(C)(ii), as he will be permanently inadmissible. B.

False Claim to U.S. Citizenship and Form I-9

Does checking the box of an I-9 form that the person is a “citizen or national of the U.S.” constitute a false claim to citizenship? It depends upon the facts of the case, the I-9 Form used, and whether the person is subject to the ground of inadmissibility or deportability. Federal law requires that all employers verify the eligibility of their potential employee by, for example, completing an employment verification form called the Form I-9. 39 An older version of the Form I-9 had a question with a single check-off box to indicate that a person was a “U.S. citizen or national.” Because the question on the Form I-9 was written in the disjunctive, a person checking this box could be representing that she was a national, not a U.S. citizen. Absent evidence that the person specifically claimed that she was a U.S. citizen, signers argued (and 39

8 USC § 1324a makes it illegal for almost any employer—public or private—to hire or continue to employ an unlawful or unauthorized alien. 8 USC § 1324a(b) requires employers to verify the eligibility of their potential employee. However, there are still many employers who fail to use the I-9 form.

3-16

Tab Position 1

Immigrant Legal Resource Center June 2017

could still argue if they signed this particular Form I-9) that they do not fall within this ground. For those facing deportability, the burden of proof is on DHS. For those seeking admission, the burden for relief will fall on the applicant.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

As of April 3, 2009, a new Form I-9 was instituted, eliminating the ambiguity as to whether the person is indicating citizen or national when she checks the box. This revised form now has separate boxes differentiating between “Citizen” and “Non-citizen National” of the United States. Thus, checking the “U.S. citizen” box will have clearer consequences under this ground. While there are many cases finding that checking the box, coupled with testimony from the immigrant, is sufficient to find someone inadmissible or deportable under this ground (see below), the BIA, in an unpublished decision, held that a woman who checked the “U.S. citizen or national box” on the old version of the Form I-9 did not trigger the false claim to U.S. citizenship ground of inadmissibility to bar her adjustment of status. 40 In that case, some of the factors the court considered in finding that she did not claim false citizenship were that she consistently testified that she claimed to be a U.S. national and not a U.S. citizen, she believed that by claiming that she was a national she was claiming that she was born in the United States but not that she was a U.S. citizen, and her limited English abilities accounted for her checking the box.

Similarly, in Kechkar v. Gonzales, 42 and Crocock v. Holder, 43 the Tenth and Second Circuits, respectively, held that a person who checked the “citizen or national” box on the former I-9 Form had the burden to prove that he intended to claim status as a national and upheld the lower courts’ findings in each case that the person did not have such intent.

40

84 Interpreter Releases 1088 (May 14, 2007) (citing Matter of [Name Withheld] [A number withheld] (BIA April 27, 2007) (unpublished)); see also Matter of Oduor, 2005 WL 1104203 (BIA, Mar. 15, 2005) (unpublished) (DHS, by providing a signed Form I-9 with the box checked confirming he was either a U.S. citizen or national, did not show by clear and convincing evidence that the respondent falsely misrepresented himself as U.S. citizen). 41 519 F.3d 773 (8th Cir. 2008). 42 500 F.3d 1080 (10th Cir. 2007). 43 670 F.3d 400 (2nd Cir. 2012).

3-17

Chapter 3

At least three circuit courts rejected the argument that checking the box on the former I-9 Form does not trigger the false claim ground. The Eighth Circuit, in Rodriguez v. Mukasey, held that a person’s testimony that he had submitted several fraudulent documents such as a driver’s license and social security card (both of which he obtained by falsely claiming to be a U.S. citizen) in conjunction with the Form I-9 was sufficient to prove a false claim to U.S. citizenship. 41 The court rejected his argument that his checking the box on the I-9 did not constitute substantial evidence to prove he represented himself as a citizen; the court specifically pointed out that, “he did not testify and does not argue that he meant to indicate that he was national. Instead, he claims that he did not understand what it meant when he marked [the box].” In this case, therefore, the totality of the circumstances, including admissions to an officer that he obtained fraudulent documents in another’s name, the circumstances surrounding his submission of the I-9, and his failure to provide evidence that he claimed national status led to the conclusion that he falsely claimed to be a U.S. citizen.

USCIS recognizes that merely checking the “citizen or national” box on the old I-9 form does not itself establish a false claim to citizenship, absent some evidence that the person intended to claim that he or she was a citizen. 44 There needs to be some evidence that in marking the box indicating a “citizen or national,” the person intended to claim that he or she was a citizen. 45 If it appears the immigrant had no idea that checking the box meant she was claiming to be a non-citizen national, then INA § 212(a)(6)(C)(ii) will likely be found to apply. 46 USCIS directs officers, therefore, to attempt to establish during an interview exactly what the individual intended to indicate by checking the box on the I-9. 47 Advocates should therefore explore the defense that some evidence is needed to prove that the client specifically intended to claim he or she was a citizen. This argument has succeeded in some criminal prosecutions for false claims to citizenship. C.

Exceptions and Other Defenses for False Claim to U.S. Citizenship 1. Narrow exception to both the inadmissibility and deportability grounds

Chapter 3

There is a limited statutory exception for certain children of U.S. citizens. The person must meet the following requirements to not be inadmissible or deportable for a false claim to citizenship: 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. (A reasonable belief must take into consideration the totality of the circumstances.) See § 212(a)(6)(C)(ii)(II); INA § 237(a)(3)(D)(ii). Effective Date: This change in the law is retroactive, and if it applies, will cure false claims that took place on or after September 30, 1996. Note that this exception does not apply to children of lawful permanent residents or undocumented immigrants, or children with only one U.S. citizen parent, even if they really believed themselves to be U.S. citizens. Furthermore, the Ninth Circuit in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), held that individuals born out of wedlock who reasonably believe both parents are U.S. citizens cannot fall under this exception where it can be established that either parent is not in fact a citizen.

44

USCIS, Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators at p. 27 (Mar. 3, 2009). Guidance regarding INA § 212(a)(6)(C)(i) has been superseded by policy guidance now found in the USCIS online policy manual. Remember to check back often for updates to the manual: www.uscis.gov/policymanual. 45 See Karaouni, 379 F.3d 1139 (9th Cir. 2004); see also id. 46 See Matter of Odour, 2005 WL 1104203 (BIA, Mar. 15, 2005) (unpublished); Matter of Soriano-Salas, 2007 WL 2074526 (BIA, June 5, 2007) (unpublished); USCIS, Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators at p. 27 (Mar. 3, 2009). 47 Id.

3-18

Tab Position 1

Immigrant Legal Resource Center June 2017

2. Defense for minors and others who made the claim unknowingly If a person does not fit into this exception and claimed he or she was a U.S. citizen while still a minor, there is a good argument that he or she does not have the capacity to make a false claim. 48 Since USCIS recognizes that a false claim to U.S. citizenship must be made knowingly, anyone who truly believed he or she was a U.S. citizen should not be inadmissible under this ground, even if the person doesn’t fall into this exception. 49 In the fall of 2013, the government announced that it will consider it as a separate and affirmative defense for minors if the person can show that she was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. 50 The noncitizen has the burden to show that she meets both of these criteria.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This policy update is not a change in statute but is an interpretation in line with case law that indicates that any misrepresentation must be made knowingly. Anyone who truly believed she was a U.S. citizen should not be inadmissible in light of this policy update, even if the person was not a minor. 3. Other limitations to finding false claim to U.S. citizenship A false claim to U.S. citizenship does not apply if someone else made the false claim on behalf of the applicant, such as a parent making the claim for a child. 51 4. Curing a false claim to citizenship with a timely and voluntary retraction

48

Some practitioners have argued that if someone other than the minor indicated that the minor was a U.S. citizen by presenting invalid documents at the border, the child did not make a false claim to U.S. citizenship or engage in visa fraud, but rather made an entry without inspection. See: “Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds” in 83 Interpreter Releases 775-776 (April 24, 2006); see also Singh v. Gonzalez, 451 F.3d 400, 409 (6th Cir. 2006) (holding that fraud committed by parents on the behalf of children should not be imputed to the children themselves, and cited with approval by BIA and other circuits in distinguished cases); Sandoval v. Holder, 641 F.3d 982 (8th Cir. 2011) (remanded to BIA to determine whether minor’s status at time of misrepresentation barred application of this provision, and whether age should impact the timeliness of the retraction). 49 USCIS, Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators at p. 25 (Mar. 3, 2009). 50 Letter from Department of State to Senator Harry Reid (Aug. 29, 2013); Letter from Department of Homeland Security to Senator Harry Reid (Sept. 12, 2013). 51 Cable, Albright, Sec. of State, DOS-17342, 96 Stat. 239978 (Sept. 17, 1997) reprinted in 74 Interpreter Releases, pp. 1483-85 (Sept. 29, 1997). 52 USCIS, Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators at p. 28 (Mar. 3, 2009). 53 9 FAM 40.63 N4.6; 8 USCIS-PM J.3 (D)(6) (“As a defense to inadmissibility for fraud or willful misrepresentation, a person may show that he or she timely retracted or recanted the false statement. The effect of a timely retraction is that the misrepresentation is eliminated as if it had never happened. If a person timely retracts the statement, the person is not inadmissible for fraud or willful misrepresentation”); see also Llano-Senarillos v. United States, 177 F.2d 164, 165 (9th Cir. 1949) (“If the witness withdraws the

3-19

Chapter 3

As with visa fraud, a timely and voluntary retraction may cure a false claim to citizenship, 52 just as timely and voluntary retractions have been held to cure other misrepresentations. 53 Whether a

retraction is timely and voluntary is based on the circumstances. Generally, the retraction must occur before completion of the statement and must be made of the person’s own volition, e.g., before discovery of the misrepresentation by the officer. The BIA held that a timely retraction was made where a person volunteered that he had entered the United States unlawfully before he completed his statement during an interview with an immigration officer at an airport. Matter of M-, 9 I&N Dec. 118 (BIA 1960). In that interview, he attempted to establish that he was lawfully residing in the United States. The Ninth Circuit in an unpublished opinion found that a person made an effective retraction when, after a border patrol officer asked for documentation of his citizenship, he promptly told the officer that he only had a work permit. 54 The Court found that he understood little English and provided clear, consistent testimony that he claimed U.S. citizenship only because he misunderstood the primary inspector’s question. Many cases have held that a retraction will not be considered timely or voluntary, where it occurred long after the false statement was made or if the retraction was made after the person has realized that the claim had not deceived the DHS officer. 55

Chapter 3

5. Options for false claim to U.S. citizenship The penalties for the false claim to U.S. citizenship inadmissibility ground are harsh. A person who falls within this ground is permanently inadmissible, as there are no general waivers for this ground. However, there are certain forms of relief that have exemptions or waivers which encompass this ground. For example, there is an exemption for Special Immigrant Juvenile Status applicants, and a waiver available for U and T nonimmigrant status applicants. In addition, a false claim to U.S. citizenship is not a bar to asylum and withholding of removal. The person only may seek the exercise of discretion if applying for a nonimmigrant visa under INA §§ 212(d)(3)(A) or (B), or if in removal proceedings in the United States, cancellation of removal might be an option that would allow someone to overcome a false claim to U.S. citizenship. For those that are seeking non-LPR cancellation of removal, VAWA, or naturalization, a false claim to citizenship might also impact the applicant’s ability to demonstrate good moral character. Advocates should also be aware that a conviction (or absent a conviction, a formal admission) of a false claim to U.S. citizenship where fraud is involved will have the additional consequence of being a crime of moral turpitude triggering inadmissibility and/or deportability. See Chapter 5.

false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn.”) 54 Olea-Reyes v. Gonzales, 177 Fed. Appx. 697 (9th Cir. 2006) (unpublished). 55 Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (retraction after a year and where disclosure of falsity of statements was imminent not timely nor voluntary); Matter of Ngan, 10 I&N Dec. 725, 727 (BIA 1964) (retraction made three years later not timely); Angeles-Robledo v. Attorney General, 183 Fed. Appx. 159 (3rd. Cir 2006) (unpublished) (not effective recantation where person did not recant her claim to U.S. citizenship until her second interview in which she was confronted with third-party evidence of her falsity and where her traveling companion was the first to inform the border authorities that she was not a U.S. citizen); Llanos-Senarillos v. United States, 177 F.2d 164, 165-66 (9th Cir. 1949) (retraction during examination not timely or voluntary where witness realized that the false testimony would not deceive).

3-20

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 3.5

Inadequate Documentation and Document Fraud

The INA has grounds of inadmissibility both for those found to have committed document fraud and for those without proper documentation at time of admission. These two grounds are distinct. A person can be charged as inadmissible for not having proper documents without a final order finding fraud. Often, someone presenting a false document can be found to be inadmissible for not having the proper document under INA § 212(a)(7). If there was a formal finding of fraud, the same person could be charged as inadmissible under INA § 212(a)(6)(F). A.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Insufficient Documentation

Insufficient documentation under INA § 212(a)(7) is a separate ground of inadmissibility that should be distinguished from grounds involving fraud or misrepresentation. Unlike material misrepresentation under INA § 212(a)(6)(C)(i) or false claim to U.S. citizenship under § 212(a)(6)(C)(ii), there is no intent requirement. And unlike inadmissibility for document fraud under § 212(a)(7)(F), no “final order” for violation of INA § 274C is required. A person is inadmissible under § 212(a)(7) for applying for admission without having proper documentation. Under § 212(a)(7)(A), immigrants who do not have “a valid unexpired immigrant visa, reentry permit, border crossing identification card or … a valid unexpired passport” or other documents needed for entry, are inadmissible.

Example: Elise presented herself at the border for admission, but the only document she had was an old California driver license. Elise could be found inadmissible under this provision. Example: Angel presented himself at the border with a fraudulent green card that he bought off someone in the street in Tijuana. He had no further documents with him. DHS can determine that Angel is inadmissible under this ground without formally charging him with document fraud under 274C. B.

Civil Penalty for Document Fraud 1. What is document fraud?

Section 274C of the INA defines document fraud and sets out rules for a civil hearing and penalties for people who commit document fraud. A person who by final order in a § 274C civil hearing is found to commit document fraud is inadmissible and deportable. See INA §§ 212(a)(6)(F), 237(a)(3)(C). Since there must be a final civil court order, this is very different from the grounds just discussed, where the conduct itself triggers the ground of inadmissibility.

3-21

Chapter 3

Under § 212(a)(7)(B)(i)(I), nonimmigrants who are seeking a nonimmigrant visa must have a passport valid “for a minimum of six months from the date of the expiration of the initial period of the alien’s admission or contemplated initial period of stay” to avoid this ground of inadmissibility. That means, for example, that a nonimmigrant seeking a three-month tourist visa must have a passport valid for at least nine months, allowing the applicant to return to her country of origin, or some other country. See also 22 CFR § 41.104(b). Under § 212(a)(7)(B)(i)(II), individuals are inadmissible if they do not have a valid nonimmigrant visa or a border crossing identification card.

A lawsuit first brought by advocates in 1996 prevented the DHS from enforcing the document fraud law for some years, and some people who were found inadmissible or deportable were able to reopen their cases. At this point, the DHS is able to enforce the law again. See Subsection C, “Walters v. Reno Litigation” below for more information on the lawsuit. “Document fraud” is more narrowly defined than the other misrepresentation grounds discussed. It relates only to the misuse of documents and written articles, and does not include false statements. Under INA § 274C, it is unlawful for a person to knowingly forge or alter any document or to “use, attempt to use, possess, obtain, accept, or receive or provide” any such false document. It is unlawful to borrow someone else’s document for the purpose of obtaining any benefit under the immigration laws. This includes using a false or borrowed visa to enter the United States, or a false or borrowed social security card to complete an I-9 form to get a job. It is also document fraud for a noncitizen to use documents to board an airplane or other transport and then destroy the documents en route to the United States.

Chapter 3

In 1996, IIRIRA changed the law and added more actions that constitute document fraud, which particularly affect those who assist immigrants. The new section, INA § 274C(5), defines “falsely make” to include: [T]o prepare, file, or assist another in preparing or filing, any application for benefits under this Act, or any document required under this Act, or any document submitted in connection with such application or document, with knowledge or in reckless disregard of the fact that such application or document was falsely made or, in whole or in part, does not relate to the person on whose behalf it was or is being submitted. 2. Not inadmissible or deportable without a “final order” Section 274C of the INA defines document fraud, and it sets out rules for a civil hearing before an administrative hearing officer. The officer will issue a final order against a person if the person either (a) waives her right to the civil hearing, or (b) is found to have committed document fraud. This is a civil penalty (fine), not a criminal offense (although there are possible criminal penalties for this type of activity). For a person to be inadmissible or deportable under this section, it is not enough that the person committed document fraud—he must have been notified to come to the § 274C civil hearing and be the subject of a final order from that hearing. Example: Zola borrowed her sister’s border crossing card to enter the United States. Zola is about to immigrate through her U.S. citizen husband. She has never been the subject of a civil § 274C hearing. She is not inadmissible or deportable for document fraud at this time. Example: Sally obtained a fake social security card and used it to complete an I-9. In a civil § 274C document fraud hearing, the hearing officer issued a final order against her. Sally is inadmissible and deportable for document fraud. Does that mean your client has no problems if she confesses document fraud to DHS and there is no final order against her yet? No. The DHS may or may not choose to refer the person to a § 274C hearing. In addition, the person might be inadmissible for misrepresentation. See § 3.3.

3-22

Tab Position 1

Immigrant Legal Resource Center June 2017

Additionally, the person could be inadmissible for not being in possession of a valid unexpired visa or entry document. See § 3.5.A above. 3. Walters v. Reno litigation

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A federal court found that the INS (now DHS) broke the law by making the notices for § 274C civil hearings impossible to understand. The INS notice contained a form for people to sign that would waive their right to a hearing on the document fraud, and have them admit fraud and pay a fine instead. The form contained unclear, technical language. Many people signed the waiver form and agreed to pay the § 274C fine, thinking that this was something like paying a traffic ticket and that paying the fine would clear up the matter. Because of the confusing language, they did not realize that they were technically admitting document fraud, accepting a final order, and making themselves deportable or inadmissible.

4. Waivers Limited waivers exist for inadmissibility and deportability for § 274C document fraud. In general, the waivers provide that some lawful permanent residents and some people who will immigrate through a family visa petition can obtain a waiver of the document fraud ground of inadmissibility. They must have committed the offense only to help or support their spouse or child. See INA § 212(d)(12); INA § 237(a)(3)(C)(ii). People who cannot qualify for these waivers might be able to clear up a document fraud problem with a waiver for insufficient documentation, see above, if the document fraud they committed also constitutes inadmissibility under section INA § 212(a)(7) or perhaps with a waiver for misrepresentation under INA § 212(a)(6)(C). 56 For example, a person who used a false document and also made a false oral statement to a consular officer committed both types of fraud. Those clients who have false documents should be informed that the DHS can prosecute them if it finds the false documents on them. Watch Out—a Document Fraud Conviction Might Be a Deportable Offense or Worse, an Aggravated Felony! A conviction for falsely using, making, or altering a passport or other similar document can be a basis for deportation under two provisions. It is a deportable offense under INA § 237(a)(3)(B)(iii). It can also be an aggravated felony if a one-year sentence was imposed, unless it is a first offense and the person showed that he or she committed the offense to aid his or her spouse, child, or parent. INA § 101(a)(43)(P). This includes a conviction for using 56

But only if they have not received a final administrative order of document fraud under INA § 274C.

3-23

Chapter 3

After a federal district court judge ruled in 1996 that INS document fraud enforcement procedures were unconstitutional, a settlement was reached in the case. In February 2001, INS agreed to vacate all § 274C final orders issued against class members and to re-calendar, reopen or remand certain deportation proceedings. In 2001, INS indicated that it had finished vacating the final orders issued against class members and issued the procedures to re-open, re-calendar, or remand class member’s deportation cases. Finally, class members who paid civil monetary penalties under § 274C had until August 21, 2003 to request a refund. For a copy of the Walters settlement agreement or for more information generally, contact the National Immigration Law Center (NILC) in Los Angeles at (213) 639-3900 or go to www.nilc.org.

or making false documents. See Chapter 4 for the conviction for document fraud deportation ground and Chapter 5 for information on aggravated felonies. § 3.6

Likely to Become a Public Charge 57

Noncitizens who the government believes are likely to receive cash welfare or need long-term care at government expense can be refused admission as being “likely to become at any time a public charge.” INA § 212(a)(4). The USCIS has issued a fact sheet entitled “Fact Sheet: Public Charge,” last updated November 15, 2013, which contains information pertaining to the public charge ground of inadmissibility and deportability. See Appendix Y. 58

Chapter 3

There are two tests relating to public charge. Under the traditional, general test, officials shall “at a minimum” consider the person’s age, health, family status, assets, resources, financial status, education, and skills, and can also consider an affidavit of support. INA § 212(a)(4)(B). This provision might apply to any noncitizen seeking admission into the United States or applying for status, including someone immigrating through a family member, diversity visa, or other means. An additional requirement added in 1996 applies only to persons immigrating through a family visa petition and in some cases, employment based petitions. Under this second test, most people immigrating through a family visa petition must have an affidavit of support form I-864 submitted on their behalf, or they will be found inadmissible as a public charge. INA § 212(a)(4)(C). There are some exemptions and those who fall into these exemptions have to file form I-864W instead. See Subsection E below for a discussion of who qualifies for an exemption. People other than family immigrants (and most employment-based immigrants) also do not need to submit the I-864 affidavit of support. The I-864 affidavit of support requires the person to have a certain level of income or assets (for income, 125% of the Federal Poverty Income Guidelines), and it is legally enforceable. Appendix Y in this manual includes a copy of the 2017 version of the Poverty Income Guidelines and immigration requirements, USCIS Form I-864P. The USCIS will continue to publish the currently applicable Poverty Income Guideline and the 125% figure each spring as Form I-864P, available online at www.uscis.gov/i-864p. Note that the fee waiver process relies on a determination that a person falls under 150% of the poverty guidelines. Thus these charts are not interchangeable. The Department of Health and Human Services posts current and past Poverty Income Guidelines at https://aspe.hhs.gov/poverty-guidelines.

57

The law governing public charge, and especially affidavits of support, is complex. This section will summarize the law. To keep abreast of important new developments, practitioners should check the website of the National Immigration Law Center (NILC) at www.nilc.org (click on “Public Benefits”) and/or consult a regular newsletter such as the NILC Newsletter or Interpreter Releases. You may also go to the website of the DHS agency Citizenship and Immigration Services (USCIS) (www.uscis.gov) which contains a fact sheet entitled “How do I financially sponsor someone who wants to immigrate?” located at www.uscis.gov/USCIS/Resources/F3en.pdf or the Department of State website (http://travel.state.gov/visa/ immigrants/info/info_1339.html and click on “Affidavit of Support” or “Poverty Guidelines”). 58 This can also be found by going to the USCIS website, at www.uscis.gov, and entering “public charge fact sheet” in the search box.

3-24

Tab Position 1

Immigrant Legal Resource Center June 2017

Part I of this section will discuss the traditional test for public charge, with a special focus on the effect of past receipt of public benefits. Part II will discuss the second public charge requirement for family immigration, the I-864 affidavit of support.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PRACTICE TIP: People seeking adjustment of status in removal proceedings will submit an I-864 packet to the immigration judge. The immigration judge will determine whether or not the person is inadmissible, and in so doing, will decide whether the I-864 is sufficient to meet the requirements to overcome the public charge ground. Part I: The Traditional Test for Public Charge A.

Factors Considered

B.

What Effect Does Receiving Public Benefits Have on “Public Charge” under the Traditional Test?

Prior administrations have issued guidance on this issue, which will be discussed in this section. Note that a new administration could issue new guidance, so please check for updates. The May 1999 “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” specifically addressed how past receipt of public benefits may affect a person’s inadmissibility as a public charge: Past receipt of cash income-maintenance benefits does not automatically make an alien inadmissible as likely to become a public charge, nor does past institutionalization for long-term care at government expense. Rather this history would be one of many factors to be considered in applying the totality of the circumstances test. In the case of an alien who has received cash income-maintenance benefits in the past or who has been institutionalized for long-term care at government expense, a Service officer determining admissibility should assess the totality of the alien’s circumstances at the time of the application for admission or adjustment and make a forward-looking determination regarding the likelihood that the alien will become a public charge after admission or adjustment. The longer ago an alien received such cash benefits or was institutionalized,

59

“FR” stands for Federal Register. This document can also be accessed on the USCIS website (www.uscis.gov) in two ways: by putting either “Public Charge Fact Sheet” or “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” in the Search box.

3-25

Chapter 3

The traditional test to determine whether someone is likely to become a public charge is known as the “totality of the circumstances test.” This test considers several factors. The DHS or the Department of State takes into account the person’s age, health, family assets, resources, financial status, education, and skills. It is important to note that, in making this determination, the officer is not supposed to rely on a single factor, including past receipt of public benefits. Rather, the officer needs to consider all of the factors in conjunction to determine whether the intending immigrant is likely to become a public charge. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” May 26, 1999, 64 FR 286289, document number FR 27-99. 59

the less weight these factors will have as a predictor of future receipt. Also, the length of time an applicant has received public cash assistance is a significant factor. “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 286289. See also the USCIS Fact Sheet on the Public Charge ground, reproduced in Appendix Y, which describes which types of public benefits will and will not trigger the public charge ground of inadmissibility.

Chapter 3

The basic issue is whether a person is likely to become primarily dependent on the government for subsistence, as shown by the receipt of cash benefits for income maintenance purposes, or long-term care at government expense. Some of the most important points include the following: •

With one exception, the DHS may not consider use of non-cash benefits (such as Medicaid or Food Stamps) by an immigrant as a basis for public charge. The exception is, if a person has received or is likely to receive long-term publicly funded institutionalization (such as placement in a nursing home or mental hospital), then DHS can consider it as one factor in a public charge decision.

•

DHS may consider the receipt of cash benefits in the public charge determination if they are received for the purpose of income maintenance. This includes programs such as Temporary Assistance for Needy Families (TANF), General Assistance (GA), or Supplemental Security Income (SSI).

•

If the cash benefits for maintenance were received by an immigrant’s family members, these cannot be considered in the immigrant’s public charge determination unless the immigrant was relying on the cash benefits as his or her sole means of support.

•

One-time cash grants, and cash designated for other purposes such as childcare or job training, are not considered in public charge decisions. Similarly, benefits that are “earned” (such as Social Security retirement, veterans’ benefits, unemployment benefits, and worker’s compensation) are not counted against the immigrant.

•

USCIS and consular officials cannot instruct or suggest that immigrants must repay past benefits received in order to be admitted.

•

There is no public charge test for naturalization.

The DHS issued this rule to make sure that immigrants who really need to accept public benefits will do so. Up to now, many intending immigrants in desperate situations have been afraid to accept public benefits for fear that it will make them a “public charge” and bar them from immigrating. The DHS provided a critical guarantee in the Field Guidance that accompanies the rule. It states that immigrants can safely rely on the proposed rules and Interim Field Guidance and collect the public benefits listed there. The current administration has proposed changes to the public charge ground, however, so it is important to monitor this issue and check for changes or updates. While a presidential executive order cannot alter the INA statute, it could change the public benefits that are considered under the totality of circumstances test, for example. More technical analysis on the interpretation of public charge is available. See links to government documents and advocates’ analyses at the National Immigration Law Center (go to

3-26

Tab Position 1

Immigrant Legal Resource Center June 2017

www.nilc.org and click on “Public Benefits” and then “Public Charge”). Also go to www.uscis.gov. C.

Who Is Subject to the Public Charge Ground of Inadmissibility?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Family immigrants and some others are subject to the traditional public charge ground of inadmissibility that is discussed here in Part I. Further, with a few exceptions all family immigrants also must submit a legally binding I-864 Affidavit of Support. See Part II, below. In practice, this issue will arise in immigration court when the person is seeking adjustment of status. Other groups of immigrants are subject to the traditional public charge ground discussed in this section. They do not need to submit form I-864, but may need to file form I-864W, the Intending Immigrant’s Affidavit of Support Exemption. These include diversity visa applicants, and abused spouses and children who self-petition under VAWA provisions. However, VAWA applicants are permitted to use all public benefits, including cash welfare, without affecting the public charge determination. INA § 212(p).

Part II: The I-864 Affidavit of Support This section will briefly concentrate on the requirements for an I-864 Affidavit of Support. 60 Every person immigrating through a family member must either submit a qualifying I-864 Affidavit of Support form (with supporting documents) in order to meet the public charge requirement, or if they are exempt from the affidavit of support requirement, must submit Form I864W, the Intending Immigrant’s Affidavit of Support Exemption. Form I-864W can be filed under the following circumstances: 1. People who can “self-petition” under the battered spouse, child or parent provisions (VAWA); 2. People who file as widows or widowers of U.S. citizens; 3. People who already have earned or can be credited with 40 “qualifying quarters” of employment with social security payments; or 4. Persons under age 18 who will become U.S. citizens at the same time that they become permanent residents, because of their parents’ U.S. citizenship. 60

In June 2006, USCIS and the Executive Office of Immigration Review (EOIR) published final regulations on affidavits of support, which made some significant changes to the original rules. 71 Federal Register 35732-57. The final rule is found at 8 CFR § 213a. The final regulations took effect on July 21, 2006, and apply to adjustment applications pending on that date regardless of when they were filed. A summary and analysis of the final rule are found at “Final Rule Regarding Affidavits of Support Issued by USCIS and EOIR,” 83 Interpreter Releases 1296 (July 3, 2006) and “Analysis of Final Affidavit-ofSupport Rule and Forms” by Charles Wheeler located at www.nilc.org/aosupp021.html.

3-27

Chapter 3

Finally, some immigrants are not subject to the public charge ground at all. These include noncitizens immigrating as refugees and asylees; special immigrant juveniles; U and T visa applicants; persons granted cancellation of removal, registry, or Cubans and Nicaraguans adjusting their status under NACARA, and Cubans adjusting their status under the Cuban Adjustment Act.

People who filed an application for adjustment of status and/or received a visa from a consular officer before December 19, 1997 do not have to file an affidavit of support or an I-864W. The I-864 imposes liability and risk on the “sponsor” who signs the affidavit because the I-864 is a legally enforceable contract. Subsection A below will discuss who can be a sponsor and sign the affidavit of support. Subsection B will discuss exactly how much the sponsor must earn, to meet the requirement of making 125% of the Federal Poverty Income Guidelines. Subsection C will discuss ways that the petitioner can meet the affidavit of support requirements even if he or she does not earn the required amount, by using assets or getting the help of co-sponsors or household members. Subsection D will discuss the serious legal responsibilities that a person takes on when he or she signs an affidavit of support. Subsection E will discuss the few groups of family immigrants who are not subject to the I-864 requirement. A.

Who Can Submit the Affidavit of Support

Chapter 3

The person who submits an affidavit of support (Form I-864) is called the sponsor. Under INA § 213A(f)(1), a sponsor must be a U.S. citizen, U.S. national, or a U.S. permanent resident of at least 18 years of age. Generally, the sponsor must live in the United States or a U.S. territory or possession. 61 The petitioner (the U.S. citizen or permanent resident who has filed an immigrant visa petition on behalf of the noncitizen) must be a sponsor. No matter how low the petitioner’s income is, the petitioner must submit an affidavit of support on behalf of the intending immigrant. Example: Antonio works in the fields to support himself and his mother, who does not work because she has a disability. His mother is petitioning for Antonio. She must submit an affidavit of support, even though she will have no income except for SSI, and even though he supports her. Exception. If the petitioner has died, in certain circumstances someone other than the petitioner may be able to act as a substitute sponsor and file the I-864. See Subsection E below. The sponsor must prove that he or she has “the means to maintain an annual income equal to at least 125% of the federal poverty line” for his or her own household plus the intending immigrant and his family members immigrating with him. Sponsors who are active in the Armed Forces only need to demonstrate 100% of the poverty line. Sponsors must state whether they have received public benefits. USCIS asks for this information to determine whether the sponsor is counting any cash benefits to meet the 125% income guideline. If the sponsor is receiving cash benefits, these cannot be used to meet the 125% income guideline. B.

What the Sponsor Must Earn: Calculating the Number of People in the Household and 125% of the Poverty Income Guidelines

A sponsor signing an affidavit of support must demonstrate that he or she earns enough income to support the immigrant and the sponsor’s entire household at a minimum of 125% above the 61

The sponsor may reside abroad temporarily if she can establish that she will live in the United States on or before the intending immigrant obtains lawful permanent resident status.

3-28

Tab Position 1

Immigrant Legal Resource Center June 2017

federal poverty income guidelines. Each year the federal government decides the amount of income that brings families to the official poverty level, and publishes this as the poverty income guidelines. A copy of the 2017 poverty income guidelines along with a calculation of 125% of these guidelines (Form I-864P), is at Appendix Y.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The federal government updates the guidelines each year in the spring. 62 To view the most current version of the Poverty Income Guidelines, go to www.uscis.gov/i-864p. It is also important to keep in mind that the DHS and the Department of State consider the poverty income guidelines in effect at the time the I-864 affidavit of support was filed, and not at the time of adjudication of the adjustment or immigrant visa application. For this reason, when filing the I864 affidavit of support package, the poverty income guidelines (I-864P) should be included if it will likely be a determining factor relating to sufficiency of the affidavit of support. Example: Rebeca has a family of three (herself and two children) and wants to immigrate her husband. With him, she will have a family of four. She lives in Illinois. Using the 2017 Guidelines in Appendix Y, you should see that a family of four must earn $24,600 to meet the poverty line. 125% of that is $30,750. Rebeca will have to show annual income of $30,750 in order to be able to sponsor her husband by herself.

• • • • • •

The sponsor’s spouse; The sponsor’s children under the age of 21, unless they are emancipated; The intending immigrant; All derivatives of the intending immigrant who are obtaining lawful permanent resident status at the same time or within six months; All dependents claimed on the sponsor’s most recent tax return; and All noncitizens previously included in an I-864 affidavit of support (for immigration on or after December 19, 1997), unless the obligation has ended.

8 CFR § 213a.1. Extended family members such as parents, siblings, aunts and uncles, cousins and even sons and daughters who reside with the sponsor are only to be included if they are dependents of the sponsor (usually, this means they are listed as dependents on the sponsor’s tax returns) and/or if they qualify as a “relative” and wish to be included to contribute their income and assets to the meet the required income level. “Relative” is defined as sponsor’s spouse, child, adult son or daughter, parent, or sibling. Example: Anne lives in Florida, and she wants to immigrate her husband Michel and his daughter Nicolette. Anne has two sons from a previous marriage. One son lives at home 62

The annual update of the poverty income guidelines for affidavit of support purposes does not go into effect until the first day of the second month after the date of publication in the Federal Register by the Department of Health and Human Services.

3-29

Chapter 3

Determining the Size of the Household that Must Be Counted in the 125%. In Rebeca’s case, it was easy to calculate that she had two children and would have a husband, and so had a family of four. Other cases may be more complex, however. The regulations provide that the following persons, in addition to the sponsor him or herself, must be counted as part of the household regardless of where they reside:

with her, while the other is a college student listed as a dependent on her most recent income tax return. She filed an old form I-134 Affidavit of Support for her father who immigrated in 1991 and an I-864 Affidavit of Support for her sister who immigrated in May of 2012. How many people are in Anne’s household, for purposes of calculating how many she must be able to support at 125% of the poverty income guidelines? How much money must she earn to meet the requirement?

Chapter 3

Anne must count herself, Michel and Michel’s daughter (listed on the current affidavit of support), and Anne’s two sons (one lives with her, and the other is a dependent on her tax return). She must count her sister, because she submitted an I-864 Affidavit of Support for her. She does not have to count the 1991 affidavit of support she filed for her father, because that was not an I-864 affidavit. Thus, in order to immigrate her husband and his daughter, Anne must meet 125% of the guidelines for a family of six. According to the chart at Appendix Y, the poverty guidelines for a family of six is $32,960; 125% of that is $41,200. Therefore, Anne will have to show an income of at least $41,200 before she can immigrate her husband Michel and his daughter Nicolette. Proving Income. The affidavit of support places significant emphasis on the sponsor’s current income to meet the income requirement. The “greatest evidentiary weight” will be given to the sponsor’s “reasonably expected household income” in the year the application is filed instead of the income reported on the most recent tax return. 8 CFR § 213a.2(c)(2)(ii)(C). The sufficiency of income is judged upon the income reported at the time the affidavit of support is submitted and not at the time that the application for adjustment of status or visa is decided. It is important to note that an affidavit of support with a projected income which meets the financial requirements may still be rejected if there are specific facts such as a material change in employment or income of the sponsor or the number of aliens included in Form I-864 that would provide a reasonable basis for finding that the sponsor would not be able to maintain his or her income at the necessary level. If rejected, the intending immigrant may also be found inadmissible as likely to become a public charge. Tax returns serve merely as evidence to show that the sponsor will likely maintain his or her income in the future. Instead of filing the last three years of tax returns, as was required before, the final rule requires the sponsor to submit only the most recent federal tax return. Sponsors, however, must provide the total income reported for the last three tax years in the I-864. If the sponsor was exempt from filing a tax return, he or she must provide a written explanation proving by a preponderance of the evidence that he or she was entitled to the exemption. A sponsor does not have to be employed and can use income from sources such as a pension, retirement benefits, interest income, dividends, retirement benefits, unemployment or worker’s compensation, alimony, or child support to meet the income requirement. While receipt of cash public benefits to maintain income does not disqualify a person from being a sponsor, the sponsor cannot count any of these benefits towards income. Some examples of cash public benefits include Supplementary Security Income, and Medicaid. See fact sheet at Appendix Y.

3-30

Tab Position 1

Immigrant Legal Resource Center June 2017

C.

How to Satisfy the Affidavit of Support Requirement if the Petitioner Does Not Earn Enough Money: Household Members, Co-Sponsors, and Significant Assets

Some clients do not earn enough income by themselves to reach 125% of the poverty income guidelines. There are three other ways in which a sponsor may satisfy the 125% requirement:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Add household members’ income to the sponsor’s income; 2. Find a joint sponsor who meets the poverty guideline amount independently; and/or 3. Use “significant assets.” 1. Household income The income of the sponsor’s household members may be added to the sponsor’s income in order to reach the 125% poverty income guideline amount. See 8 CFR § 213a.2(c)(2)(i)(C)(1). The following people can be contributing household members: • • • • •

The sponsor’s spouse if residing with the sponsor (note: if the spouse is the intending immigrant he or she need not reside with the sponsor); The sponsor’s children if residing with the sponsor; Any other relative 63 residing in the household who is not a dependent and is at least 18 years old; Any dependents listed on the sponsor’s tax return for the most recent tax year; and The intending immigrant, subject to limitations (see below).

The household member whose income is to be counted must sign Form I-864A. This is a contract between the contributing household member and the sponsor. In that contract, the household member agrees to be jointly and severally liable for all of the sponsor’s obligations under the affidavit of support. In other words, the household member would be just as responsible as the sponsor would if the sponsor were sued and had to pay out money. See discussion of liability in Subsection D. The one exception to this rule is that the intending immigrant does not have to sign a form I-864A contract with the sponsor, as long as he or she is immigrating alone (i.e., and not with a spouse or child). Does a Contributing Household Member Have to Have Lawful Status in the United States? There is no requirement in the 2006 regulation that the household member must be a U.S. citizen or lawful permanent resident or have some form of lawful status. It may, however, be difficult to convince an undocumented household member to sign a contract with the sponsor, I-864, because it will be submitted and reviewed by USCIS. 63

Relative is defined only to include the sponsor’s spouse, child, adult son/daughter, parent, or sibling. 8 CFR § 213a.1(2).

3-31

Chapter 3

To count the intending immigrant’s income he or she must be residing with the sponsor, or be the sponsor’s spouse or claimed dependent. Most importantly, to be able to count the intending immigrant’s income, it must come from lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she obtains permanent resident status. Lawful employment means work performed while the worker had an employment authorization document (EAD). Offers of employment are not enough to meet the intending immigrant’s proof of income.

What if a Contributing Household Member Is Working without Employment Authorization? Unlike the intending immigrant, there is no requirement that the income contributed by a household member come from lawful employment. 64 However, the contributing household member must show that she has paid taxes. When to File the I-864. USCIS requires all applicants to submit the affidavit of support (I-864) with their adjustment applications. People immigrating through consular processing must also file the I-864 before they can complete the immigrant visa process. Under the final regulation, the sufficiency of the affidavit of support is based on the income reported for the year the I-864 was submitted, not the sponsor’s income on the date the immigrant visa is adjudicated or on the date of the application for adjustment of status. Furthermore, officials must use the Federal Poverty Income Guidelines in effect at the time the affidavit is submitted, not at the time the affidavit is being reviewed. The Form I-864 was recently updated, and USCIS currently requires filing on the latest form edition only. You can always check that you are using the most current edition by checking the form at www.uscis.gov.

Chapter 3

2. Joint sponsorship If the petitioner/sponsor does not make enough money to meet the requirements of the affidavit of support, then another person can also file an affidavit of support and become a joint sponsor. No one person may have more than one joint sponsor, but all family members do not have to have the same sponsor. Up to two joint sponsors per family are allowed on a single family petition. 8 CFR § 213a.2(c)(2)(iii)(C). The joint sponsor must meet the same requirements as the original sponsor, the petitioner. The joint sponsor must be a lawful permanent resident or U.S. citizen of at least 18 years of age who lives in the United States or a U.S. territory or possession. The joint sponsor does not have to be related in any way to the intending immigrant (e.g., she could be a third cousin, great aunt, or close friend). See INA § 213A(f). The joint sponsor must sign a separate affidavit of support, Form I-864. By signing the affidavit, the joint sponsor agrees to accept joint and several liability for the affidavit of support. This means that the joint sponsor will have exactly as much responsibility as the original sponsor under the affidavit of support. See discussion of liability in Subsection D. The Joint Sponsor Must Be Able to Meet the Income Requirement by Him or Herself. The petitioner’s income and joint sponsor’s income cannot be added together to meet 125% of the poverty income guidelines. (Compare this to the “contributing household member” described above. In that case, the income is added to the sponsor’s.) The joint sponsor must make 125% of the income needed to support both his or her household and the intending immigrant. However, in a single family petition where there are two joint sponsors in addition to the primary sponsor, each joint sponsor need only include the person he or she is sponsoring as part of the household size (in addition to other members of the sponsor’s actual household), rather than everyone on the family petition. See next part.

64

Note, however, if the household member committed document fraud to get a job—by using false documents or lying on an I-9 form—the person runs the risk of being found deportable and inadmissible for document fraud. See § 2.4.

3-32

Tab Position 1

Immigrant Legal Resource Center June 2017

Family Petitions with Two Joint Sponsors. Under the final rule, there is an additional option in cases where a sponsor cannot meet the income requirements to sponsor the intending immigrant and all of his or her derivatives. Each petition can have up to two joint sponsors in addition to the primary sponsor, where previously only one joint sponsor was allowed. As noted above, a single joint sponsor must make the 125% of the income needed to support both his or her household and the intending immigrant and his or her derivatives. In many cases, there is no joint sponsor that can meet this threshold. With two joint sponsors, however, the household size can be reduced and therefore, the required income level will be less, since the intending immigrant and derivatives in a single family petition can be split between the two joint sponsors. Each joint sponsor then need only include those persons he or she is sponsoring (plus the joint sponsor’s actual household) in determining household size to calculate the necessary income to meet the poverty level. In other words, joint sponsors do not have to include every beneficiary of the family petition in calculating household size. Note, however, that no one individual on a petition can have more than one joint sponsor.

3. Significant assets A person who does not earn enough income can still meet the 125% test if he or she has enough “significant assets.” INA § 213A(f)(6)(A)(ii). Generally, there are two requirements: (1) the assets must be convertible to cash within one year, and (2) the net worth of the assets must be five times the difference between the sponsor’s actual income and the income the sponsor is required to have. Under the final regulation, however, the required value of assets is less for immediate relative spouses and children of U.S. citizens. If the sponsor is a U.S. citizen and the intending immigrant is the sponsor’s spouse or a child over 18, the value of the assets must be only three times the difference between the sponsor’s income and the required amount. See 8 CFR § 213a.2(c)(2)(iii)(2)(B)(1). Also, if the intending immigrant is an orphan to be formally adopted in the United States, the value of the assets only must equal the shortfall between the sponsor’s income and the required amount. See 8 CFR § 213a.2(c)(2)(iii)(2)(B)(2). 65 65

Note also that some children of U.S. citizens, including adopted children, are exempt from the Affidavit of Support requirement if they would become U.S. citizens by operation of law immediately upon acquiring permanent resident status. See Subsection E, of this section, below.

3-33

Chapter 3

Example: Kimora, the sponsor, resides in California and wants to immigrate her husband and four children from Japan. She already has one child in the United States. To meet 125% of the poverty guidelines for a family of seven, she needs to make $46,425. She does not earn enough to meet this amount. She has two friends, Miko and Sayako, who are willing to be joint sponsors, but when they calculate their own household size and add Kimora’s husband and four kids they each do not earn enough to meet 125% of the poverty level. However, Kimora’s joint sponsors could each sponsor different individuals in the family petition to reduce their household size and meet the required income level. Miko could sponsor Kimora’s husband and two of their children. She would then only have to show that she makes enough to support her own household plus three persons, whereas previously she would have had to sponsor five persons. Sayako could sponsor Kimora’s two other children and would therefore only have to show that she makes enough to support her own household plus two persons.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Savings accounts, stocks and bonds, certificates of deposit, life insurance policies, real estate, and personal property, are examples of significant assets. See 8 CFR § 213a.2(c)(1)(iii)(B) and INA § 213A(f)(6)(A)(ii). A sponsor, joint sponsor, or household member can use significant assets to meet or help meet the 125% amount. In addition, the intending immigrant’s assets can be counted—even if the immigrant is in another country. Example: Caroline, a U.S. citizen, has four people in her household (including herself) and wants to sponsor her husband. Caroline makes $20,000 in annual income. To make 125% of the poverty line for a household of five, she needs $35,975 in income. Caroline owns her house, which has a cash value (after the mortgage is paid off) of $60,000. Can she use ownership of this asset to make up the $15,975 income she is short? Yes. The difference between 125% of the poverty line ($35,975) and Caroline’s income ($20,000) is $15,975. Her $60,000 worth of assets is more than three times the $15,975 difference, so she will qualify.

Chapter 3

What if Caroline’s house was only worth $20,000, but her husband had stocks and bonds in the home country that could be sold for a net gain of $40,000? Caroline could combine proof of her $20,000 in real property plus proof of her husband’s ownership of the stocks to show $60,000 in significant assets. PRACTICE TIP: Mix and Match to Get to 125%. The easiest way to meet the affidavit of support requirement is simply to rely on income, from the sponsor and joint sponsor(s), and attach the most recent year’s tax return plus recent pay stubs. However, you can also get creative and combine household income, joint sponsors and significant assets to reach the 125% mark; but keep in mind this will likely require more extensive paperwork to demonstrate the value of the assets and other sources of income. A joint sponsor can include income from members of his or her household, just like the main sponsor. Significant assets belonging to a sponsor, joint sponsor, household member, or the intending immigrant can be counted. For example, if Eric agrees to be a joint sponsor, he may use a contributing household member’s income to reach 125%. Both he and the contributing household member can use significant assets to help reach the amount. D.

Obligations of the Sponsor under the Affidavit of Support

The Form I-864 Affidavit of Support will be legally enforceable against the sponsor, as well as any joint sponsor or contributing household member. See INA §§ 213A(a)(1)(B) & (b). (The Form I-134 Affidavit of Support, which was used for all immigrants before December 1997 and now may be used for non-family immigrants, is not legally enforceable against the sponsor). The following is a discussion of the responsibilities of the sponsor under the I-864. Government Suit to Recover Cost of Means-Tested Benefits. Any federal, state, or local government can sue the sponsor to recover the cost of federal or state “means-tested public benefits” that were received by the immigrant during the period of enforcement of the affidavit of support. In fact, under the final regulation, USCIS may disclose a sponsor’s social security number and the sponsor’s last known address to a benefits granting agency to help it obtain a

3-34

Tab Position 1

Immigrant Legal Resource Center June 2017

reimbursement from the sponsor. Federal means-tested public benefits have been defined to include only Medicaid, the State Children’s Health Insurance Program (SCHIP), Temporary Assistance for Needy Families (TANF), and SSI. Advocates should keep abreast of which state or local benefits will be designated as being recoverable under the affidavit of support. In practice, there have been few government actions to obtain reimbursements for these benefits. 66 Note that government agencies cannot sue to collect reimbursement for benefits that the immigrant received more than ten years earlier. INA § 213A(b)(2)(C).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The sponsored immigrant can sue the sponsor to be supported at a level equal to 125% of the poverty guidelines. See INA § 213A(a)(1)(B), (e)(1). There have been a few cases brought against sponsors by the sponsored persons and all have been former spouses. Most notably, a federal district court in Indiana upheld a sponsored person’s right to recover from her sponsor exhusband and awarded $19,000 in damages, plaintiff’s attorneys’ fees, and held that the sponsor had a continuing obligation to support the immigrant at the 125% level until the contract terminated. 67 Based on this case law, sponsors who file affidavits of support for their spouses should be aware that they can be found liable to their spouses even after divorce. For more information on cases and arguments against continuing liability after divorce see “Alien vs. Sponsor: Legal Enforceability of the Affidavit of Support,” by Charles Wheeler at www.ilw.com/articles/2006,0110-wheeler.shtm.

When Does the Sponsor’s Obligation Begin? The sponsor’s and joint sponsor’s obligations under the affidavit of support do not begin when the affidavit of support is submitted to USCIS, but rather when the intending immigrant obtains lawful permanent resident status. This means that a sponsor may withdraw the affidavit any time before the intending immigrant is granted permanent resident status. When Does the Sponsor’s Obligation End? See INA § 213A(a)(3). This section sets out how long the sponsor is obligated under the affidavit of support. The sponsor’s obligation ends when one of the following occurs: (1) The sponsored immigrant becomes a U.S. citizen; (2) The sponsored immigrant is credited for 40 “qualifying quarters” of employment as reflected by social security payments; (a) A “quarter” refers to a quarter of a year, so the person will have to work at a certain wage for at least ten years to equal 40 quarters.

66 67

See, for example, Moody v. Sorokina, 40 A.D.3d 14 (N.Y. App. Div. 2007). See Stump v. Stump, 2005 WL 2757329 (N.D. Ind. 2005).

3-35

Chapter 3

Sponsors Must Notify the Government if They Change Their Address. If a sponsor moves, he or she must notify both the USCIS and the state in which the sponsored immigrant resides within 30 days of changing address. The sponsor will do this by filing Form I-865; the form gives information about where it must be mailed. If the sponsor does not do this, he or she can be fined from $250 to $2,000, or up to $5,000 if he or she knows the immigrant has collected benefits. INA § 213A(d)(2).

(b) Beginning December 31, 1996, if the person receives any federal means-tested benefit during the quarter, the quarter does not count. (c) A person under 18 can count all of his or her parent’s qualifying quarters since the day he or she was born, and a spouse or widower can count his or her spouse’s quarters earned since the date of the marriage. See Subsection E below for further discussion. (3) The sponsored immigrant ceases to be a lawful permanent resident and has left the United States; (4) The sponsored immigrant, the sponsor, or the joint sponsor dies; or (5) The sponsored immigrant obtains a new grant of adjustment of status in removal proceedings as relief from removal. If the sponsored immigrant requires an affidavit of support for the new adjustment, only the sponsor(s) who filed new affidavits of support in conjunction with the new adjustment application will be obligated.

Chapter 3

The sponsor’s obligation does not end with divorce, if the immigrant disappears and does not communicate with the sponsor, or for other personal reasons. It does end if the sponsor dies, but the sponsor’s estate may have to pay obligations that arose before the sponsor died. See 8 CFR § 213a.2(e)(2)(ii). Example: Marie immigrated her husband Robert, with Marie’s mother filing an I-864 Affidavit of Support as a joint sponsor. Five years later, Robert began drinking heavily and divorced Marie. Three years after that he was in an automobile accident and became unable to work. Marie and her mother will remain responsible for Robert under the affidavits of support, and may be forced to repay Medicaid for his medical expenses if the government so insists. Robert might even be able to sue to force them to support him at 125% of the poverty guidelines. Their obligation will not end until Robert becomes a U.S. citizen, or works 40 qualifying quarters, or loses lawful permanent resident status and leaves the United States, or dies. Even after the sponsor’s obligation ends, the sponsor still is liable for debts that arose before the support obligation ended. For example, if Robert in the above example ends the obligation by becoming a U.S. citizen, Marie and her mother still will be liable for his Medicaid expenses from before he became a citizen, when the affidavit was in effect (as long as the government sues them within ten years of when he received the benefits). Many important issues about liability are not yet decided, and current policy might change. Advocates must keep abreast of developments and be honest with clients about what they do not know. PRACTICE TIP: Who Is Your Client? In adjustment cases, a representative might represent the sponsor or petitioner in the I-130 petition, as well as the applicant for adjustment (the beneficiary), before the immigration judge. If representing more than one party, as their legal representative it is important that you make sure to explain the potential conflicts that may arise and have both parties sign a conflict waiver as part of your legal contract with them, stating that you explained the possibility of conflict and what will happen should a conflict arise.

3-36

Tab Position 1

Immigrant Legal Resource Center June 2017

A 2009 fact sheet about affidavits of support can be downloaded at www.nilc.org/wpcontent/uploads/2016/05/sponsoredimmsbens-na-2009-08.pdf. This sheet will provide you with a general overview of the affidavit of support requirements. You should make sure that your clients understand the requirements. Using their names and the name of the intending immigrant, describe who would be obligated under the affidavit.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Navigating family immigration with clients may present many “conflicts of interest.” When conflict arises between two clients, such as husband and wife, advocates must follow the rules of ethics. In cases in which you represent both parties, it is important to advise them about what a potential conflict is, and how a conflict of interest would be handled should it arise. In the context of I-864s, you might have a non-client looking to you for information. Imagine that your client is the sponsor, and you really want to help her to immigrate her husband. To do this, she needs her brother, Esteban, to be a joint sponsor. Are you going to be careful to make sure that Esteban understands all the risks of the affidavit of support? If you were the advocate for the intending immigrant, you might want to urge Esteban to consult a different advocate or attorney to make sure that he wants to take on this responsibility. This is because Esteban’s interests may be quite different from the intending immigrant’s. Because your job is to zealously represent your client, it is wise to make sure you do not hold yourself out as Esteban’s counsel. E.

Most people who immigrate through a family member must have a qualified I-864 Affidavit of Support filed on their behalf by the petitioner and, if needed, a joint sponsor. Some people, however, are exempt from this requirement. Those who are exempt from filing the I-864 have to file Form I-864W, the Intending Immigrant’s Affidavit of Support Exemption form. This form is used to establish that the person is not required to file an affidavit of support. 1. VAWA self-petitioners A noncitizen who has been battered or abused by a U.S. citizen or permanent resident spouse, parent or child can file a “self-petition” under Violence Against Women Act (VAWA) provisions. These self-petitioners do not need to have someone submit an I-864 Affidavit of Support, but do need to file a Form I-864W. Unlike other family immigrants, they need only meet the general public charge test. INA § 212(a)(4)(C)(i)(III). 2. Where the petitioner has died and the intending immigrant is the widow(er) If the intending immigrant was married to (and not legally separated from) a U.S. citizen at the time of the citizen’s death, the widow(er) may file a petition on his or her own behalf, but must do so within 2 years of the citizen’s death. INA § 201(b)(2)(A)(i). 68 The alien will be immigrating as the widow(er) of a U.S citizen and therefore does not need a substitute sponsor. This applies 68

Widows/widowers of U.S. citizens are no longer required to have been married for at least two years to the citizen spouse to self-petition as a widow(er). See § 568(c) of the Department of Homeland Security Appropriations Act, 2010, Pub. L. No. 111-83, 123 Stat. 4142, 4186 (2009), which amended INA § 201(b)(2)(A)(i).

3-37

Chapter 3

Exceptions to the I-864 Affidavit of Support Requirement for Family Immigrants: VAWA Self-Petitioners; Where the Petitioner Has Died; Citizenship under the Child Citizenship Act; and Those Who Have or Inherit 40 Quarters of Qualifying Income

regardless of whether the U.S. citizen spouse dies before or after approval of the I-130 petition. Since the spouse immigrates as the widow(er) of a U.S. citizen, an I-864 does not have to be filed. Death of Sponsor in Other Cases. In other cases where the sponsor dies, there is still an affidavit of support requirement. The final rule, however, allows the use of a “substitute sponsor” if a petitioner dies after the petition is approved but before the family member immigrates. 69 A substitute sponsor must be the spouse, parent, mother-in-law, father-in-law, sibling, child (if over 18), son-in-law, daughter-in-law, grandparent, grandchild, or legal guardian of the intended immigrant. See 8 CFR § 213a.1. 3. Children who automatically derive U.S. citizenship when they become lawful permanent residents

Chapter 3

Some noncitizen children automatically become U.S. citizens on the date that they become lawful permanent residents, through the citizenship of the parent. This is subject to the requirement that the child must be in the legal and physical custody of the U.S. citizen parent in order to acquire U.S. citizenship. See the ILRC’s Naturalization and U.S. Citizenship: The Essential Legal Guide for more information on derivation of citizenship. Because these children will become citizens on the same date that they become permanent residents, and because U.S. citizenship would end any responsibilities of a sponsor submitting an I-864 Affidavit of Support, the government does not require them to file an I-864 as part of their family immigration. 8 CFR § 213a.2(a)(2)(ii)(E). However, they must file an I-864W. A noncitizen orphan adopted by a U.S. citizen may also be exempt from the I-864 requirements depending upon factors such as whether the orphan is adopted abroad or in the United States and whether the U.S. citizen parent(s) saw the child before adoption. The laws on this are complicated. For a summary, see “Final Rule Regarding Affidavits of Support Issued by USCIS and EOIR,” 83 Interpreter Releases 1296 (July 3, 2006). 4. Children born after the visa is acquired There is no affidavit of support requirement for children who are born after their immigrant parents receive the visa and accompany them to the United States. 8 CFR § 213a.2(a)(2)(ii)(D). 5. Persons who earn or inherit 40 quarters of qualifying income If the intending immigrant has earned (or can be credited with) 40 quarters under the Social Security Administration (SSA), he or she is exempt from the requirement to file Form I-864 and just has to file Form I-864W. An intending immigrant can acquire 40 qualifying quarters in the following ways: 1. Working in the United States for 40 quarters in which the intending immigrant received the minimum income established by the Social Security Administration; or

69

Under INA § 204(l), certain I-130 family petition beneficiaries are eligible who were in the United States at the time of the petitioner’s death and who continue to reside in the United States are automatically eligible to immigrate, despite the petitioner’s death. Those who do not fit within § 204(l) must ask DHS to reinstate the petition so they can immigrate. See 8 CFR § 205.1(a)(3)(i)(C).

3-38

Tab Position 1

Immigrant Legal Resource Center June 2017

2. By being credited with quarters worked by the person’s spouse during the marriage or a parent during the time the person was under 18 years of age; or 3. A combination of the above.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A “quarter of qualifying income” is three months of wages at a certain level for which money has been paid into the Social Security system. Why are people permitted to avoid filing an I-864 and instead just file an I-864W just because they have 40 quarters of qualifying income? Remember that an I-864 sponsor’s liability ends when the sponsored immigrant earns 40 qualifying quarters of work. See INA § 213A(a)(3), and discussion in Subsection D above. The government recognizes that it would be pointless for the immigrant and the government to go through the I864 process, when the I-864 can never become enforceable because the person will have 40 credits of work at the moment of immigrating. How can a new immigrant already have 40 quarters of income? Remember that under SSA regulations, some people are able to claim quarters of work done by certain relatives as their own. Also, some people who have worked without authorization, using an invented or borrowed social security number, can later get credit for the quarters that they worked if they paid into the social security system at the time. And of course, people who were working here with legal employment authorization before they became permanent residents can claim their own credits.

Claiming a Relative’s Income. As mentioned above, children can credit the quarters that their parents, including stepparents, earned from the date of the parent’s birth until the date of the child’s 18th birthday. A spouse can credit the quarters earned by the other spouse from the date of the marriage. Thus, a 20-year-old daughter who is immigrating can claim all the quarters of work her mother and/or father have earned while in the United States and before she turned 18. The same is true of an immigrating wife who can claim as her own the quarters earned by her husband during the marriage. Example: Jerry and Paloma have been married for eleven years. The last 15 years, Jerry has been living and working in the United States as a permanent resident. He has petitioned to immigrate Paloma and Paloma’s 17-year-old son Luis. The family does not make enough income to meet the I-864 requirements. However, as Jerry’s wife, Paloma can credit Jerry’s last 11 years of work as her own. People in this situation do not have to file an I-864, but only an I-864W. This is because the moment Paloma immigrates, she can claim Jerry’s 40 quarters (10 years of work) and the obligations under the affidavit of support would terminate. Luis would not need to file an I-864, either. As Jerry’s stepson, he could credit all 15 years of Jerry’s work in the United States and so would easily have the 40 quarters. Form I-864W: Intending Immigrant’s Affidavit of Support Exemption. The final regulation created this form for an intending immigrant to establish that he or she is not required to file Form

3-39

Chapter 3

Thus, whether a person has earned and/or been credited with 40 qualifying quarters of income is important at either of two points in the process. If the person has the quarters at the time he or she applies for permanent residency, no I-864 is required. In this case, he must still file an I-864W, Intending Immigrant’s Affidavit of Support Exemption. Or, if an I-864 was submitted, the sponsor’s obligation will end at the moment that the immigrant reaches 40 qualifying quarters.

Chapter 3

I-864, the affidavit of support in his or her case. VAWA self-petitioners, applicants who have earned 40 quarters of coverage under Social Security, self-petitioning widow(er)s, and applicants who fall within the Child Citizenship Act must complete this form. The form provides boxes to indicate which exemption the applicant is claiming. Depending upon the exemption, the applicant may or may not have to provide supporting documentation. Claiming Credits for Work the Immigrant Did under a Bad Social Security Number. If a person who worked under an invented or borrowed social security number later obtains a legal social security number, she can fix her social security records to get her former work credits placed under her new number. In terms of avoiding the I-864 requirement, this will help applicants for adjustment of status, but not those in consular processing. A person who applies for adjustment of status receives work authorization upon filing the application. During the months or years she waits for the interview, she can work with Social Security to get credit under the new number. But a person who goes through consular processing and who does not receive employment authorization before immigrating will not have a chance to unscramble the records and claim her hours by the time of the consular interview. Nevertheless, if that person can work with SSA to claim the 40 quarters for hours previously worked under an invalid Social Security number after she is admitted to the United States as a permanent resident, then the Affidavit of Support obligation of her sponsor(s) will terminate. Note, however, that this course of action does have some risks—and could lead to a civil action for document fraud or even a criminal prosecution for identity theft or other charges. No one should undertake to “fix” social security records until a thorough assessment of the risks has been undertaken by an expert. Receipt of Means-Tested Public Benefits. For any period beginning after December 31, 1996, a quarter will not be “qualifying” if during the period the person received any “Federal meanstested public benefit.” INA § 213A(a)(3)(B). For a more complete discussion of qualifying quarters, see Affidavit of Support and Sponsorship Requirements: A Practitioners’ Guide (National Immigration Law Center and Catholic Legal Immigration Network, available at www.nilc.org). § 3.7

Entry, Admission, and Effective Dates

Remember, a person who has been admitted to the United States (for example, a permanent resident) is subject to the grounds of deportability, and a person who is seeking admission (who is outside the United States, including, in some instances, a permanent resident returning from travel abroad; 70 was paroled into the United States; entered as a crewman; entered without inspection, or someone who is applying for adjustment of status or many other forms of relief) is subject to the grounds of inadmissibility. 71 Pay attention to when each of the following sections uses words like “entry,” “admission,” or “parole.” Some inadmissibility grounds only apply if the person remains in the United States. See INA § 212(a)(6)(A). Other inadmissibility grounds only apply if the person has left the United States after a violation (even if they have now returned to the United States). See INA §§ 212(a)(9)(B)-(C). 70

See INA § 101(a)(13)(C). Review Chapter 1 for a detailed explanation of how the term “admission” is defined under INA § 101(a)(13).

71

3-40

Tab Position 1

Immigrant Legal Resource Center June 2017

It is also important to pay attention to the effective dates—when certain grounds imposed by the 1996 IIRIRA and other legislation begin to apply. For example, you will see that in calculating “unlawful presence” for purposes of the three- and ten-year bars, we count only unlawful presence starting as of April 1, 1997. But other grounds where Congress has not been specific may apply before April 1, 1997 or have to be resolved in litigation.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Some of the most important and complex inadmissibility bars are the “three- and ten-year” and “permanent” bars based on unlawful presence. A chart of these grounds appears at Appendix Y. In addition, USCIS published a memorandum on May 6, 2009 as an amendment to its “Adjudicator’s Field Manual” which describes in detail its interpretation of these grounds. 72 § 3.8

Unlawfully Present in the United States without Being Admitted or Paroled

Example: Sonia entered the United States without inspection in 1991 and has never left since. She is inadmissible due to her unlawful presence without prior admission. She could be removed for being inadmissible. Example: Tania was admitted to the United States in 1991 on a visitor’s visa and has not left since. Tania is not inadmissible under this ground, because she was lawfully admitted. (Note that Tania is deportable under INA § 237(a)(10)(B) because she is “present in the U.S. in violation of law,” and could be removed for being deportable. See Chapter 4 of this manual.) Example: George entered the United States by crossing the border undetected. Shortly thereafter he was apprehended by the Border Patrol and taken into custody. The DHS, looking at the circumstances of his case, granted George parole into the country on the basis of urgent humanitarian reasons. Under current USCIS policy, George is not inadmissible under this provision once he has been paroled. 74 Because George is paroled 72

May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence. Soon, USCIS intends to compile past guidance into the online policy manual. Remember to check back often for updates to the manual: www.uscis.gov/policymanual. 73 Immigration advocates who practiced before April 1, 1997 will note that this ground of inadmissibility replaces the former “entry without inspection” deportation ground. 74 See USCIS, Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and

3-41

Chapter 3

This ground penalizes people who entered without inspection and remain in the United States. Noncitizens who are present in the United States without being admitted or paroled, or who arrive at a place other than a designated port of entry, are inadmissible under INA § 212(a)(6)(A). 73 This ground is “cured” upon departure from the United States, so it does not impact those who are immigrating through consular processing. This is the most common charge in removal proceedings for those who are here after having entered without inspection. Because it is far easier for the government to prove this ground compared to a criminal or other more complex inadmissibility ground, your clients may be charged only with this in immigration court even though they may also have other inadmissibility issues.

into the United States, he is not present without inspection or parole. Additionally, although George did not enter through a designated checkpoint, current guidance indicates that this inadmissibility basis would only apply to someone at time of entry. 75 A.

Exemptions

This ground does not bar adjustment of status in several situations:

Chapter 3

Exception for Those Who Are Eligible for Adjustment of Status under INA § 245(i). It is DHS’s official position that this ground of inadmissibility does not disqualify those who are present in the United States without being admitted or paroled from adjusting their status under INA § 245(i). See Memorandum from Louis D. Crocetti, Jr., Associate Commissioner, Office of Examinations, to INS officials (May 1, 1997), reprinted in 2 Bender’s Immigration Bulletin 450, 452 (June 1, 1997); INS General Counsel Issues Important Opinion on EWI Eligibility for Adjustment, 74 Interpreter Releases 499 (March 24, 1997). The Board of Immigration Appeals (BIA) has also upheld this position, finding that to hold otherwise would defeat the purpose of 245(i), a result that Congress is presumed not to have intended. See Matter of Briones, 24 I&N Dec. 355, 365 (BIA 2007). VAWA Exemption. VAWA self-petitioners are exempt from this ground of inadmissibility for adjustment of status under INA § 245(a). 76 In other words, INA § 212(a)(6)(A) is effectively waived for approved VAWA self-petitioners who entered without inspection or are present without permission or parole. 77 For more information about this, see the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants. Temporary Protected Status. USCIS has found as a policy matter that § 212(a)(6)(A) and grounds of inadmissibility under § 212(a)(9) should not apply to applicants seeking temporary protected status (TPS). 78 TPS grantees are considered to be in lawful status from the date they apply for TPS. INA § 244(f)(4). There is currently a federal circuit split regarding whether TPS constitutes an “admission” and thus cures a person’s initial illegal entry for purposes of qualifying for § 245(a) adjustment. 79 In other words, depending on the circuit, a person with TPS can still be Nationality Act § 212(a)(6)(A)(i), (Nov. 15, 2013), available at www.uscis.gov/sites/default/files/USCIS/La ws/Memoranda/2013/2013-1115_Parole_in_Place_Memo_.pdf. 75 Id. 76 “Adjustment of status” is the process of obtaining lawful permanent residency from within the United States (if applying from outside the United States, the process is called “consular processing”). 77 Michael L. Aytes, Assoc. Dir. Dom. Opers., USCIS, Adjustment of Status for VAWA Self-Petitioner Who Is Present Without Inspection, (Apr. 11, 2008), p. 2. 78 See 8 CFR § 244.3. This regulation specifically exempts TPS applicants from grounds of inadmissibility under INA §§ 212(a)(4), 212(a)(5)(A)-(B), and 212(a)(7)(i). In a draft memorandum circulated in 2011, the USCIS indicated that INA §§ 212(a)(6)(A) and 212(a)(9) will not be applied to those seeking TPS. USCIS indicated that to do so would be contrary to the statute. At this time, USCIS is not requiring waivers for these grounds. 79 A the time of this manual’s writing, the Sixth Circuit, Ninth Circuit, and a handful of district courts have held that people who were granted TPS are eligible to adjust status under INA § 245(a). See, e.g., Ramirez v. Brown, 852 F.3d 954 (9th Circuit 2017); Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013); Bonilla v. Johnson, 149 F.Supp.3d 1135 (D. Minn. 2016); Ramirez v. Dougherty, 23 F. Supp. 3d 1322 (W.D. Wash. 2014).

3-42

Tab Position 1

Immigrant Legal Resource Center June 2017

considered inadmissible under INA § 212(a)(6)(A)(i) for purposes of qualifying for adjustment of status through a family or employment visa petition under INA § 245(a) if they initially entered the United States without permission.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Discretionary Waiver for Legalization Applicants under INA § 245A and § 210. DHS has the authority to grant a waiver of the grounds of inadmissibility under INA § 212(a)(6) for humanitarian, family unity, or public interest reasons, for applicants for legalization or special agricultural worker status under INA § 245A or § 210. 80 Additional Exemptions. In addition to these exceptions and waivers, inadmissibility under INA § 212(a)(6)(A)(i) does not make an individual inadmissible for purposes of: • • • •

§ 3.9 Three- and Ten-Year Bars for Those Unlawfully Present Who Depart and Then Apply for Admission and the Family Hardship Waiver A.

The Three- and Ten-Year Bars, and the Family Hardship Waiver

The three- and ten-year bars for unlawful presence are found at INA § 212(a)(9)(B). These grounds of inadmissibility penalize people who stay too long in unlawful status in the United States, then leave, and then apply for admission. These grounds are only triggered when the person departs the United States. WARNING! If you are representing someone in removal proceedings, unlawful presence bars could only have been triggered by a prior departure. If the person has a prior departure—beware! They might be subject to reinstatement of removal or other penalties that bar certain relief. Check for any prior orders of removal, and take a full history of entries and exits to best represent your client. Nonetheless, it is possible for someone to have a prior period of unlawful presence, and then return to the United States with a visa. Such a person might be able to adjust in court proceedings with a waiver for unlawful presence. Even if you discover that your client has a prior removal order and is subject to reinstatement, if ICE has already issued an NTA instead of simply reinstating the prior removal order, there are 80

See 8 CFR 245a.2(k)(2), 8 CFR 245a.3(g)(2), 8 CFR 245a.18(c), and 8 CFR 210.3(e). March 3, 2009, USCIS Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, p. 9.

81

3-43

Chapter 3

• • • • •

Adjustment of status under INA § 245(h) (Special Immigrant Juvenile Status); Adjustment of status under INA § 245(i); Adjustment of status under § 902 of the Haitian Refugee Immigration Fairness Act (HRIFA); Adjustment of status under § 202(b) of the Nicaraguan Adjustment and Central American Relief Act (NACARA); Adjustment of status under INA § 249 (Registry); Change of status to V nonimmigrant status under INA § 214(q); Asylum under INA § 208(a)(1), § 208(a)(2), and § 208(b)(2); Family Unity under § 301 of the Immigration Act of 1990 (IMMACT 90); and Some applicants for adjustment under the Cuban Adjustment Act of 1966. 81

arguments that your client now has a right to a hearing before an immigration judge. If DHS later realizes there is a prior removal order against your client, but an NTA has already been issued, DHS may try to terminate removal proceedings as “improvidently” begun. You should consider opposing the motion if your client could seek other relief, such as cancellation of removal, in removal proceedings. 180 Days/Three-Year Bar. Noncitizens who (a) beginning on April 1, 1997 are unlawfully present in the United States for a continuous period of more than 180 days but less than one year, and (b) then voluntarily depart the United States, before proceedings commence, and (c) then apply for admission to the United States, are inadmissible for a period of three years from the date of departure. INA § 212(a)(9)(B)(i)(I).

Chapter 3

One Year/Ten-Year Bar. Noncitizens who (a) beginning on April 1, 1997 are unlawfully present in the United States for a continuous period of one year or more, (b) leave the United States voluntarily or by deportation/removal, and (c) then apply for admission to the United States, are inadmissible for a period of ten years from the date of departure or removal. INA § 212(a)(9)(B)(i)(II). Effective Date of April 1, 1997. Under current case law, this ground of inadmissibility does not start “counting” the period of unlawful presence until April 1, 1997. For example, a person who had been unlawfully present in the United States for several years but left before September 27, 1997 (180 days after April 1, 1997) will not be inadmissible under this ground. Continuous Period. The 180 days or one year must be continuous. A person who is in unlawful status for four months, then leaves and comes back to new unlawful status for five months, still has not spent six months in continuous unlawful presence and does not come within the three- or ten-year bar. 82 This is in contrast to the “permanent bar” in INA § 212(a)(9)(C), for which unlawful presence is counted in the aggregate. If, however, a person accrues several periods of unlawful presence during one single stay, interspersed with other periods of lawful presence, USCIS will add the multiple periods together for purposes of the three- and ten-year bars. 83 Example: John is admitted to the United States as a B-2 visitor on January 1, 2008 and his authorized stay expires on June 30, 2008. He does not leave, but marries Amanda, a U.S. citizen, and files for adjustment of status through her on November 1, 2008. While his adjustment application is pending, he is not accruing unlawful presence. His adjustment application is finally denied on April 1, 2010 (all appeals have been exhausted). His unlawful presence begins to accrue again upon the final adjustment denial (see below for more on exceptions to unlawful presence).

82

Note, however, that the even more dangerous “permanent” bar to admission for those who attempt to enter illegally is cumulative. For purposes of the permanent bar, DHS does add different periods of unlawful presence together. A year or more unlawful presence in total will trigger the permanent bar. The permanent bar is discussed in the next section. 83 See May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, p. 13.

3-44

Tab Position 1

Immigrant Legal Resource Center June 2017

1. A gap in the statute for those in proceedings a. Must voluntarily depart before placed in proceedings to trigger the three-year bar

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The inadmissibility ground for unlawful presence for more than 180 days but less than one year is only triggered when a person leaves the United States voluntarily before being placed in proceedings (whether or not under a voluntary departure grant). If the person is placed in removal proceedings, then receives voluntary departure from the judge or is ordered deported after 180 days have lapsed but before accumulating one year of unlawful presence, the person does not fall under this provision. b. Any departure can trigger the ten-year bar On the other hand, the inadmissibility ground for one year or more of unlawful presence in the United States is triggered regardless of how the person leaves the United States—a departure by any means will “count” against him or her. See INA § 212(a)(9)(B)(i)(II). 84 An important exception to this rule is that leaving the United States under a grant of advance parole will not count as a “departure” under INA § 212(a)(9)(B)(i)(II) and will not thereby trigger inadmissibility. 85 c. Gap in the statute

PRACTICE TIP: A person can avoid inadmissibility under the three-year unlawful presence bar if she receives voluntary departure from the judge and departs before one year of unlawful presence. This is especially helpful for those who have a family member who can file a visa for them and are eligible to consular process. If your client is placed in proceedings before accruing a year of unlawful presence, evaluate whether your client is eligible to consular process to become a permanent resident through a family member. If so, it might be useful to advance the hearing for voluntary departure to allow your client to consular process without waivers. This is a good option for someone who is not eligible to adjust status and does not face other inadmissibility grounds.

84

See Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA 2007); vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009). 85 Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), (clarifying the holding in Matter of Lemus, supra). 86 See 75 Interpreter Releases 543 (4/20/98).

3-45

Chapter 3

There is therefore a gap in the statute that helps a small number of clients. The State Department found that a person with more than 180 days but less than one year of unlawful presence who leaves the United States after being placed in removal proceedings (either through a removal or a grant of voluntary departure) is not inadmissible under this ground at all. 86 This creates the odd result that someone who was removed has more benefits under the statute than someone who voluntarily left either on his or her own volition or under an administrative voluntary departure grant, before removal proceedings were brought. (Note, however, if the person attempted to return illegally after a removal, she would be inadmissible under the permanent bar discussed in the next section).

2. What is a “departure”? Travel with advance parole should not be considered a departure that triggers the unlawful presence grounds of inadmissibility. 87 In the BIA’s decision in Arrabally and Yerrabelly, the BIA found that the purpose of INA § 212(a)(9)(B)(i)(II) does not apply to someone who left and returned to the United States pursuant to a grant of advance parole. Although the BIA case only specifically addressed a person with a pending adjustment application who travelled with advance parole, the reasoning of this decision arguably applies in other contexts. Since this decision, those with TPS and DACA (Deferred Action for Childhood Arrivals) who previously accrued unlawful presence have also successfully travelled on advanced parole, returned, and adjusted status here in the United States without requiring waivers for unlawful presence. In a memorandum regarding parole in place, USCIS indicated that it agrees with this broad interpretation. 88 According to prior USCIS guidance, asylees who have secured valid refugee travel documents will trigger the three- or ten-year bars upon attempting to reenter the country. 89 Asylees with valid refugee travel documents will be permitted to reenter the United States, but will be inadmissible upon subsequent attempts to adjust status to lawful permanent resident. 90 Following the logic of the Arrabally and Yerrabelly regarding advance parole, asylees should argue that their departure is not a departure that triggers unlawful presence for purposes of INA § 212(a)(9)(B).

Chapter 3

3. Family hardship waiver People who are the spouses, sons, or daughters of U.S. citizens or permanent residents can apply for a discretionary waiver of the three- or ten-year bar. The DHS or an immigration judge can grant a waiver to a noncitizen who is the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, if refusing admission to this person would result in extreme hardship to the citizen or permanent resident spouse or parent. INA § 212(a)(9)(B)(v). Note that this particular waiver is not available to a parent of a U.S. citizen or lawful permanent resident (unless the person is also the spouse, son, or daughter of a U.S. citizen or lawful permanent resident). Also, the DHS will not consider hardship to the waiver applicant him or herself. Previously, people who were not admitted or paroled into the U.S. and therefore were required to depart the country to obtain their permanent residency through consular processing would apply for this waiver of unlawful presence after attending their consular interview and being informed that they needed a waiver. They would have to remain outside the U.S. while waiting for their waiver to be approved, causing them to be separated from their families in the U.S. for several months. As of March 2013, certain immediate relatives of U.S. citizens can apply for this unlawful presence waiver in the United States, before leaving the United States to consular process. Called

87

Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). USCIS Policy Memorandum (Nov. 15, 2013), available at www.uscis.gov/sites/dafult/files/USCIS/Laws/ Memoranda/2013-1115_Parole_In_Place_Memo_.pdf. 89 Appendix G, p. 17, 19. 90 Asylees adjusting status may apply for a waiver of inadmissibility for unlawful presence and other grounds under INA § 209(c). 88

3-46

Tab Position 1

Immigrant Legal Resource Center June 2017

a “provisional unlawful presence waiver,” it is filed using Form I-601A. 91 This is a great development for those who can benefit because it takes away much of the risk of leaving to consular process without knowing whether a waiver for the unlawful presence 3/10 bars would be granted. On November 20, 2014, President Obama announced an expansion of this program as part of an Executive Action, which was implemented in 2016. 92 Under the expansion, certain relatives of permanent residents and adult children (sons and daughters) of U.S. citizens are also able to utilize the provisional waiver process. 93 Those in removal proceedings must take specific steps to use the provisional waiver process. They can apply for the provisional unlawful presence waiver with USCIS while in removal proceedings, but after the waiver is granted and before they depart the U.S. to attend their consular interview, they must have their removal proceedings terminated; administratively closed removal proceedings is not enough. 94

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Example: Sonia has lived illegally in the United States for seven months. Then, last week, she left to visit her home country. She later applies to immigrate through her permanent resident mother. Is Sonia inadmissible? Why or why not? If so, is a waiver available?

Example: Quan entered the United States as a visitor in January 2004 with permission to stay until June 1, 2004, but he never left. He was discovered, placed in removal proceedings, and finally removed on July 25, 2007. Later his U.S. citizen son became 21 years old and applied to immigrate Quan. Is Quan inadmissible? Why or why not? If so, is a waiver available? Quan is inadmissible and subject to the ten-year bar. Counting from June 1, 2004 (the day his presence became unlawful), he was in the United States for more than a year in unlawful status before he was removed. Unfortunately, if Quan’s son is his only lawful permanent resident or U.S. citizen relative, Quan will not qualify for the family hardship waiver because it is not available to parents of U.S. citizens or lawful permanent residents. He will have to wait for ten years after the date of his removal to return. If, 91

The regulations relating to the provisional waiver may be found at 8 CFR § 212.7(e). USCIS, USCIS to Allow Additional Applicants for Waiver Process, (Jul. 29, 2016) available at www.uscis.gov/news/news-releases/uscis-allow-additional-applicants-provisional-waiver-process. 93 See www.dhs.gov/sites/default/files/publications/14_1120_memo_i601a_waiver.pdf. 94 At a forum in April 2017, ICE stated that Offices of Chief Counsel are no longer willing to systematically administratively close removal proceedings to allow individuals to apply for the provisional unlawful presence waiver. Instead, they are willing to offer voluntary departure. However, practitioners still report success on a case-by-case basis in seeking administrative closure, so even if OCC opposes a request to administratively close to file an I-601A, you should still pursue it under Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). 92

3-47

Chapter 3

Yes, Sonia is inadmissible and comes within the three-year bar. After April 1, 1997, she was unlawfully present in the United States for more than 180 days but less than a year before she left voluntarily. Because Sonia is the daughter of a permanent resident, she can apply for the family hardship waiver of the three-year bar. To qualify for the waiver, Sonia must show that her mother will suffer extreme hardship if the waiver is not granted. If the waiver is denied, Sonia cannot immigrate until she has lived outside the United States for three years.

however, Quan’s wife or at least one of his parents is a U.S. citizen or lawful permanent resident, Quan will be eligible for the waiver. He will have to show that the wife or parent will suffer extreme hardship if the waiver is denied. If the waiver is denied, Quan cannot immigrate until July 25, 2017. Note that if Quan had not been discovered, and was not ordered removed, he could probably adjust status in the United States without triggering the unlawful presence bar. Because Quan initially entered with a visa, he was inspected and admitted and thus would qualify to adjust through an immediate relative in the United States even though he had overstayed his visa. The problem for Quan is that he was removed, and thus departed the United States before he could pursue this option. B.

Exceptions to Unlawful Presence under INA § 212(a)(9)(B) 1. Statutory exceptions

Under the statute, certain periods of time will not count in calculating the period of unlawful presence. Under INA § 212(a)(9)(B)(iii), unlawful presence does not accrue for purposes of the three- and ten-year bars during times that the noncitizen: (1) is under 18 years of age;

Chapter 3

(2) has a bona fide asylum application or bona fide Asylee-Refugee Relative Petition pending, unless the noncitizen works without authorization during that time (the DHS stated in memoranda that the term “bona fide” will be defined generously, as an asylum application that has any arguable basis in law and fact); 95 (3) is the beneficiary of Family Unity protection under § 301 of the Immigration Act of 1990; 96 (4) was battered or subjected to extreme cruelty by a U.S. citizen or permanent resident spouse or parent, or a U.S. citizen son or daughter or a member of the spouse or parent’s family, where there was a substantial connection between the battery or cruelty and the violation of the terms of the person’s nonimmigrant visa; (5) is a victim of a severe form of trafficking in persons, where the individual can demonstrate that the trafficking is at least one central reason for their unlawful presence in the United States. 2. Other cases when unlawful presence is not counted Other kinds of immigration status or procedures also affect unlawful presence for the three- and ten-year bars under INA § 212(a)(9)(B) and the permanent bar under INA § 212(a)(9)(C) (discussed in § 3.10 below). Some of these exceptions are policy determinations by USCIS, rather than statutory exemptions, and are thus subject to change. 1. People Who Have Affirmatively Applied for Adjustment of Status (i.e., filed their applications for adjustment before USCIS and not in removal proceedings). USCIS 95

See May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, pp. 29-31. 96 By USCIS policy, this exemption has been extended to Family Unity under § 1504 of the LIFE Act Amendments of 2000, for both § 212(a)(9)(B) and the permanent bar (see below).

3-48

Tab Position 1

Immigrant Legal Resource Center June 2017

policies indicate that properly filed applications for adjustment of status or registry under the following sections of law stop accrual of unlawful presence and toll that accrual until the application is denied, even if it is determined that the individual was ineligible for the benefit in the first place: registry under INA § 249 and adjustment of status under: (1) INA § 209, § 245 and § 245(i); (2) NACARA § 202(b); (3) HRIFA § 902; and (4) Cuban-Haitian Adjustment Act of § 202. 97

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

2. Voluntary Departure. The period during which the DHS, an immigration court, or the Board of Immigration Appeals (BIA) grants voluntary departure will not count as unlawful presence for the three- and ten-year bars. If the person granted voluntary departure fails to depart, unlawful presence begins as of the day the voluntary departure period expired. In addition, unlawful presence accrued prior to the grant of voluntary departure still counts against a person for the three- and ten-year bars. If a denial of voluntary departure is reversed on appeal, the time from the denial to the reversal is not considered unlawful presence. Unlawful presence before voluntary departure was granted still counts. 98

4. Duration of Status for Nonimmigrants. If the person was admitted to the United States as a nonimmigrant for “duration of status” usually indicated by “D/S” on the I-94 or passport stamp, neither the expiration of lawful status nor a violation of the nonimmigrant’s lawful status triggers the start of unlawful presence. 100 This policy applies to people who enter as F-1 students and their dependents or J-1 exchange students, scholars, and visitors and their dependents. It also applies to Canadians who enter “uncontrolled” as B-1/B-2 tourists or business visitors, but without an I-94, as they are also considered here for “duration of status.” See 8 CFR 214.1(b).

97 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 33-34 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. The policies further indicate that, except in cases of NACARA or HRIFA applications, persons filing the listed applications after being served with a Notice to Appear in removal proceedings will not be protected from accrual of unlawful presence. 98 For additional information regarding the effect of reinstatements of voluntary departure, petitions for review, and motions to reopen, see USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 39-42 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS /Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 99 Michael Pearson, INS Memorandum (Mar. 3, 2000), available at 77 Interpreter Releases 316 (June 5, 2000). 100 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 25 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF.

3-49

Chapter 3

3. Authorized Stay for Nonimmigrants. If the person was admitted to the United States as a nonimmigrant, “unlawful presence” is only counted after the expiration date on the person’s I-94 entry document. Unlawful presence does not begin, for example, on the date that the person does something to violate her visa, but only when there is a determination that she is no longer in status. INA § 212(a)(9)(B)(ii). 99

5. Application to Extend or Change Nonimmigrant Status. The statute indicates that unlawful presence is tolled (stopped) for 120 days for people who apply to extend or change their nonimmigrant status. See INA § 212(a)(9)(B)(iv)(III). However, given DHS backlogs, the DHS has interpreted the statute to mean that the clock is stopped for up to the length of time it takes the DHS to adjudicate a change or extension of status. This applies only to certain people who timely apply to extend or change their nonimmigrant status (e.g., extend a visitor’s visa). Although the statute states that this exception applies to the three-year bar only, USCIS policies indicate that it will extend the tolling protections to the ten-year and permanent bars as well, provided several requirements are met, including that (1) the non-frivolous request for extension or change of status was timely filed; (2) the individual has not engaged in unauthorized employment either before or during the pendency of the application; and (3) the individual’s status has not lapsed prior to the filing of the request. 101 6. Lawful Permanent Residents. LPRs in removal proceedings do not begin to accrue unlawful presence until the issuance of a final administrative order by an immigration judge or the BIA terminating LPR status. 102

Chapter 3

7. Lawful Temporary Residents. Unlike conditional residents (see below), LTRs pursuant to INA § 245A(b) do not automatically begin accruing unlawful presence following the expiration of their temporary residence status. Rather, LTRs do not accrue unlawful presence until issuance of a notice of termination by DHS (but administrative appeals of this notice toll unlawful presence), or until the commencement of removal proceedings. 103 8. Pending Applications for Legalization or Special Agricultural Worker Status under INA § 245A or § 210, or § 1104 of the LIFE Act, if properly filed, will also stop the accrual of unlawful presence until a final administrative denial. 104 9. People with Family Unity Protection under both § 301 of the Immigration Act of 1990 (IMMACT 90) and § 1504 of the LIFE Act Amendments of 2000. 105 10. Pending Applications for TPS. If properly filed, a TPS application will only cure unlawful presence retroactively until the time of filing if the application is approved. If

101

For additional information regarding the effect of departure on certain immigration applications, such as applications for extension of status or change of status or motions to reopen, see USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 35-38 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/rev ision_redesign_AFM.PDF. 102 Id. at 44. 103 Id. at 22-23. 104 Id. at 38. 105 Family unity under § 301 of IMMACT 90 is a statutory exception under § 212(a)(9)(B) but only a policy exception for § 212(a)(9)(C); Family Unity under § 1504 of the LIFE Act Amendments of 2000 is a policy exception for both § 212(a)(9)(B) and § 212(a)(9)(C).

3-50

Tab Position 1

Immigrant Legal Resource Center June 2017

the application is denied, unlawful status will have accrued since the time the previous authorized stay expired. 106 11. Stay of Removal. Persons granted a stay of removal do not accrue unlawful presence during that period, including automatic stays granted as a result of motions to rescind an order of removal in absentia. 107

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

12. Deferred Action. Individuals granted discretionary deferral of removal or deferred action will not accrue unlawful presence during the period for which deferral is granted. 108 Likewise, someone granted deferred action for childhood arrivals (DACA) will not accrue unlawful presence once the application is granted. If a person files for DACA prior to their eighteenth birthday, and the application is granted, USCIS will consider that person not to have accrued unlawful presence. 13. Withholding of Removal or Deportation. Unlawful presence ceases during the period for which withholding of removal or deportation is granted. 109 14. Withholding or Deferral of Removal under the Convention Against Torture (CAT) stops accrual of unlawful presence through the period of the grant. 110 15. Deferred Enforced Departure (DED) commences authorized stay on the date specified and ends when the DED is no longer in effect. 111

C.

Time Periods That Do Count as Unlawful Presence 1. Time spent in removal/deportation proceedings does count as unlawful presence time unless the person has a valid nonimmigrant visa during the proceedings, or is renewing an affirmative application for adjustment of status in removal proceedings. A nonimmigrant in removal proceedings does not accrue unlawful presence until the visa expires or the immigration judge orders the person removed, whichever comes first. An applicant who is renewing an affirmative application for adjustment of status does not accrue unlawful presence until a final administrative order of removal is entered. 113

106

USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 38-39 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. 107 Id. at 42. 108 Id. 109 Id. 110 Id. at 43. 111 Id. 112 Id. 113 Note, however, that if someone files a defensive application for adjustment of status in removal proceedings, meaning the application was never filed with USCIS, the applicant does accrue unlawful presence in removal proceedings. See id., p. 45.

3-51

Chapter 3

16. Satisfactory Departure granted under 8 CFR § 217.3 does not subject an individual to accrual of unlawful presence during the satisfactory departure period. Should the individual remain following the expiration of this period, unlawful presence begins to accrue the day after expiration. 112

2. Conditional residents who do not timely file a petition to become lawful permanent residents will automatically become “unlawfully present” on the date the conditional status expires. In the narrow set of circumstances in which late filings by conditional residents are permitted, acceptance and approval of such a filing will cure unlawful presence back to the expiration of the conditional status. 114 3. Persons admitted due to false claim of citizenship are regarded by USCIS as not having been admitted or inspected, and thus all time spent in the United States subsequent to such entry is regarded as unlawful presence unless some other authorization exists.

Chapter 3

D.

The Person Must Leave the United States in Order to Come within This Ground of Inadmissibility

The three- and ten-year bars only apply where the noncitizen seeks admission to the United States after departure or removal. Thus, it does not apply, no matter how long a noncitizen has been unlawfully present, if the person never departs the United States. Some people are eligible to immigrate through family members at their local USCIS office, in a process called adjustment of status. If a person is able to adjust status in the United States, she can sometimes avoid this ground of inadmissibility if she was able to remain in the United States after any period of unlawful presence. Others must leave the United States and go to a U.S. consulate in their home country in order to immigrate. By leaving the United States, they trigger this ground, and their unlawful presence will be counted against them. They must qualify for a waiver excusing such unlawful presence. 115 Those people fortunate enough to adjust their status without triggering this ground by a departure avoid the three- and ten-year bars regardless of how much unlawful presence they have accumulated. E.

Additional Waivers and Exemptions

Waivers. In addition to the Family Hardship Waiver discussed above, several other classes of individuals may be eligible for waivers of the three- and/or ten-year bars, including: • • • •

Nonimmigrants, who may apply for advance permission to enter pursuant to the discretionary waiver available under INA § 212(d)(3); Asylees and refugees, pursuant to INA § 209(c); Applicants for Temporary Protected Status (TPS), pursuant to INA § 244. See also 8 CFR 244.2 (however a separate waiver may still be required to adjust status); 116 Certain legalization applicants pursuant to INA § 245A or § 210. 117

114

See id., p. 23. Now that there is a provisional unlawful presence waiver, the applicant applies before having actually departed the U.S. to consular process and therefore before having actually triggered the unlawful presence bar; the waiver is submitted in anticipation of triggering this inadmissibility ground. 116 See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013). In the Flores case, the Court held that the plain language of the TPS statute, INA § 244(c)(2) provided broad waivers of inadmissibility and that INA § 244(f) clearly states that TPS recipients are considered to be in lawful status for adjustment purposes. 117 See May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, pp. 46-48. 115

3-52

Tab Position 1

Immigrant Legal Resource Center June 2017

Additional Exemptions. In addition to these waivers and the exceptions listed in the section above, inadmissibility under INA § 212(a)(9)(B)(i) or (ii) does not make an individual ineligible for: • • • • • •

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Adjustment of status under INA § 245(h) (Special Immigrant Juvenile Status); Adjustment of status under § 902 of the Haitian Refugee Immigration Fairness Act (HRIFA); Adjustment of status under INA § 249 (Registry); Adjustment of status under § 202 of the Nicaraguan Adjustment and Central American Relief Act (NACARA); Change of status to V nonimmigrant status under 8 CFR 214.5 (however a waiver may be required to subsequently adjust status to a legal permanent resident); or Adjustment to LPR status pursuant to the LIFE Act. 118 § 3.10 “Permanent Bar” to Persons Who Were Unlawfully Present for More than One Year or Were Ordered Removed, and Who Enter or Attempt to Enter without Being Admitted

A more severe ground of inadmissibility punishes people who have problems with their immigration status, leave the United States, and then reenter or try to reenter illegally instead of applying for admission. A noncitizen is subject to this ground if:

or b) was ordered deported or removed (regardless of how much unlawful presence the person has), and then enters or attempts to reenter the United States without being admitted after April 1, 1997. The DHS will count any unlawful reentry after April 1, 1997, even if the deportation occurred before that date. See INA § 212(a)(9)(C)(i)(II). These people are inadmissible for ten years. They cannot even apply for a discretionary waiver of this ground until ten years after their last departure from the United States. INA § 212(a)(9)(C). Because this provision is so harsh, it has been dubbed the “permanent bar” even though it is not, technically, permanent. Notice that an important difference between the permanent bar and the three- and ten-year bars is that a person must enter or attempt to enter without admission to come within the permanent bar. Immigration advocates should see a red flag any time that a person says that he or she entered the United States illegally after April 1, 1997. If the person ever was deported in his or her life before that time, and came back unlawfully, the new illegal reentry triggers the permanent bar and 118

See id., p. 20. There was a case that held that any unlawful presence, regardless of the date, counts: Palacios v. Holder, 651 F.3d 969 (9th Cir. June 21, 2011). However, this decision was subsequently vacated and therefore is no longer followed. See Carrillo v. Holder, 662 F.3d 1128 (9th Cir. December 1, 2011). Nevertheless, you should be aware that the date that unlawful presence counts from could change in a subsequent court case.

119

3-53

Chapter 3

a) He or she has been unlawfully present in the United States for an aggregate period of more than one year beginning on April 1, 1997 119 and then enters or attempts to reenter the United States without being admitted. See INA § 212(a)(9)(C)(i)(I);

destroys hope of immigration through a family petition until the person has spent ten years outside the United States. Once the ten years have passed, the person must ask for consent from DHS to reapply for admission before trying to enter from outside the United States or attempting to be readmitted from a country abroad. Very few people are willing to make such a sacrifice of staying outside the United States for ten years in order to overcome the permanent bar. Consent from DHS does not authorize a person to be admitted or authorize a person to reenter the United States without admission, but merely allows the person to apply for admission. See Subsection E for information on waivers of the permanent bar in limited circumstances. A.

Parole and the Permanent Bar

By statute, INA § 212(a)(9)(C) punishes those who either accrue a year of unlawful presence or who have been removed, deported, or excluded from the United States, then enter or attempt to enter the United States without being admitted. Parole is not an “admission” as defined in the INA. See INA § 101(a)(13). However, USCIS does not consider parole pursuant to INA § 212(d)(5) to be an illegal reentry without admission that will trigger the permanent bar. This is both because a person who is paroled into the United States has obtained official permission, and because a person with parole is still considered an applicant for admission. Therefore, reentry by parole does not trigger the permanent bar. 120

Chapter 3

B.

Exceptions to Unlawful Presence for the “Permanent Bar”

As noted in § 3.9, USCIS has interpreted the term “unlawful presence” differently for the threeand ten-year bars in § 212(a)(9)(B) and for the permanent bar in § 212(a)(9)(C). The following types of status are not considered “unlawful presence” for purposes of both the permanent bar and the three- and ten-year unlawful presence bars under current USCIS policy. 121 The exceptions are listed below; please see § 3.9 above for details on each. 1. 2. 3. 4. 5. 6. 7. 8.

Unlawful presence before April 1, 1997; People who have affirmatively applied for adjustment of status or registry; Voluntary departure; Authorized stay for nonimmigrants; Duration of status for nonimmigrants; Application to extend or change nonimmigrant status; 122 Lawful permanent residents (until a final order of removal); 123 Lawful temporary residents (until termination or commencement of removal proceedings); 124 9. People with family unity protection;

120

See May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, pp. 16-18. 121 Remember, however, that the permanent bar can be triggered either by a year of unlawful presence prior to departure and illegal return, or by a prior deportation, removal, or exclusion order, if the noncitizen reenters to attempts to reenter the U.S. illegally after April 1, 1997. 122 For additional information regarding the effect of departure on certain immigration applications, such as applications for extension of status or change of status or motions to reopen, see id. at 35–38. 123 Id. at 44. 124 Id. at 22–23.

3-54

Tab Position 1

Immigrant Legal Resource Center June 2017

10. 11. 12. 13. 14. 15. 16. 17. C.

Pending applications for legalization or special agricultural worker status; 125 Pending applications for TPS; 126 Stay of removal; 127 Deferred action; Withholding of removal or deportation; Withholding or deferral of removal under the Convention Against Torture (CAT); Deferred enforced departure (DED); and Satisfactory departure granted under 8 CFR § 217.3.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Differences between Unlawful Presence for the Three- and Ten-Year Bars in INA § 212(a)(9)(B) and the Permanent Bar in INA § 212(a)(9)(C)

Because USCIS interprets the statute as providing more generous exceptions and waivers for the three- and ten-year bars in INA § 212(a)(9)(B) than for the permanent bar in INA § 212(a)(9)(C), it is important to be aware of the following differences. 128 1. Minors are not exempt from accumulating unlawful presence for the permanent bar, according to USCIS policy and the U.S. Consulate in Ciudad Juarez.

3. The permanent bar counts the “aggregate” (added together) periods of unlawful presence beginning on April 1, 1997 in calculating the one-year limit. For the three- and ten-year bars, the DHS will only consider continuous unlawful presence of 180 days or one year. If a person was in unlawful presence from July to December 2013 then left and returned from February to November of 2014, she would not have a total of one year or more for the ten-year bar because there would be no continuous one-year period. However, she would have over one year of unlawful presence for the permanent bar, because the DHS counts the total time spent in unlawful presence since April 1, 1997.

125

Id. at 38. Id. at 38–39. 127 Id. at 42. 128 ILRC believes that some of the distinctions USCIS makes between the definition of unlawful presence for INA §§ 212(a)(9)(B) and 212(a)(9)(C) are arbitrary, and should be challenged. Nevertheless, unless someone challenges these interpretations, they will be difficult to overcome. 129 Under certain circumstances a person applying for benefits under the Violence Against Women Act will not be subject to the permanent bar. See the ILRC’s VAWA Manual: Immigration Relief for Abused Immigrants for additional information. 130 USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 28-29 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo randa/2009/revision_redesign_AFM.PDF. 126

3-55

Chapter 3

2. Certain exemptions from unlawful presence found in INA § 212(a)(9)(B) (such as battered women) 129 are not deemed to apply to unlawful presence in INA § 212(a)(9)(C). USCIS takes this position, holding that these “statutory” exemptions (listed under § 3.12 Exceptions to Unlawful Presence), apply only to the three- and ten-year bars, and not the permanent bar. 130

D.

Prior Deportations and the “Permanent Bar”

In addition to being triggered by a year of unlawful presence followed by departure and unlawful return to the United States, the permanent bar can also be triggered either by a prior deportation, removal, or exclusion order under § 235(b)(1), § 240, or any other provision of law, followed by an unlawful return to the United States. INA § 212(a)(9)(C)(i)(II). According to DHS, even deportations that occurred before April 1, 1997 trigger the permanent bar, if the person makes or attempts an illegal reentry after April 1, 1997. Again, many advocates disagree with this DHS position and argue that only deportations or removals after April 1, 1997 should count. 131 The DHS position is that if a person was deported in 1990 and reentered illegally in 1998, he would be subject to the permanent bar. PRACTICE TIP: Remember that if the client was deported or removed and then reenters illegally, she is subject to the permanent bar even if she had no unlawful presence before the deportation or removal. 132 Additionally, this person is also subject to reinstatement of the prior order. If someone is subject to reinstatement, but receives a notice to appear in immigration court, counsel can argue to pursue relief in removal proceedings. (ICE might argue to terminate proceedings and reinstate the prior order.)

Chapter 3

E. Waivers of the “Permanent Bar”There are some narrow circumstances in which the permanent bar can be overcome: 1. Once ten years have passed, the person can ask for consent from DHS to reapply for admission before trying to enter from outside the United States or attempting to be readmitted from a country abroad. Consent from DHS does not authorize a person to be admitted or authorize a person to reenter the United States without admission, but merely allows the person to apply for admission. INA § 212(a)(9)(C)(ii). 2. HRIFA and NACARA applicants can file a waiver of the permanent bar on Form I-601; the standard of adjudication is the same as if the applicant were filing form I-212. See 8 CFR § 245.13(c)(2); 8 CFR § 245.15(e)(3). 3. For legalization, SAW, LIFE Act Legalization, and Legalization Class Settlement Agreement Applicants, INA § 212(a)(9)(C) can be waived based on humanitarian reasons, to ensure family unity, or if it is in the public interest. 4. For TPS Applicants, INA § 212(a)(9)(C) can be waived based on humanitarian reasons, to ensure family unity, or if it is in the public interest. However, this waiver does not serve a TPS grantee who applies for adjustment of status. 5. VAWA self-petitioners can apply for a waiver of § 212(a)(9)(C) on Form I-601 if they can establish a connection between the abuse suffered and the unlawful presence, the removal, and the subsequent illegal reentry.

131

The statute does specifically apply to those who were “ordered removed under section 235(b) [expedited removal], section 240 [removal proceeding] or any other provision of law.” INA § 212(a)(9)(C)(i)(II). 132 Such an individual would also be subject to reinstatement of removal. See § 3.7 below.

3-56

Tab Position 1

Immigrant Legal Resource Center June 2017

6. Asylee and refugee adjustment applicants under INA § 209(c) can file a waiver on Form I-602, but the application can also be waived at the discretion of USCIS. The waiver can be granted based on humanitarian reasons, to ensure family unity, or if it is in the public interest.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

7. It is possible, although not necessarily likely, for a nonimmigrant to be granted a waiver of § 212(a)(9)(C) under INA § 212(d)(3). The form for a waiver of inadmissibility for a nonimmigrant is Form I-192. The nonimmigrant should make the application when applying for the nonimmigrant visa abroad. 133 8. U visa applicants can apply for a waiver of § 212(a)(9)(C), and are eligible to adjust status notwithstanding § 212(a)(9)(C). See INA § 245(m). 9. Special Immigrant Juveniles are eligible for a waiver of § 212(a)(9)(C) for humanitarian purposes, family unity, or when it is otherwise in the public interest. See INA § 245(h)(2)(B). 10. T visa applicants can apply for a waiver of § 212(a)(9)(C). See 8 CFR 212.16.

12. An applicant for non-LPR cancellation of removal under INA § 240A(b), will be exempt from the permanent bar if relief is granted. Section 240A(b) cancellation is likely to benefit only those who are subject to the permanent bar due to unlawful presence. Those who have a prior deportation order are likely to be subject to reinstatement of removal, 134 and thus would not have a right to a hearing to pursue § 240A(b) cancellation of removal as a remedy. WARNING: Clients who have accumulated over one year of unlawful presence since April 1, 1997 or who have been deported any time in the past should not leave the United States and attempt to reenter illegally. Many people want to return to their home country for holidays or because a loved one is ill and assume they will just reenter illegally. They must realize that if they reenter or attempt to reenter the United States illegally, they could be subject to the permanent bar. WARNING! Minors and the Permanent Bar: While the three- and ten-year unlawful presence bars under INA § 212(a)(9)(B) include an exception for minors, providing that while under the age of 18 they do not accrue unlawful presence, there is no such exception under the permanent bar provisions at INA § 212(a)(9)(C). For some time, the U.S. Consulate in Ciudad Juarez was 133

These exceptions are found in USCIS, Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, 49-50 (May 6, 2009), available at www.uscis.gov/sites/default/files/USCIS /Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 134 See § 3.16.

3-57

Chapter 3

11. Registry under INA § 249 permits someone who has been residing continuously in the United States since January 1, 1972, possesses good moral character, and is not ineligible for citizenship and not deportable under INA § 237(a)(4)(B) to apply for adjustment of status to permanent residence. Applicants for Registry under INA § 249 are not subject to the permanent bar.

applying the exception for minors to the permanent bar provisions. However, in July 2008 it changed its policy and now will find that a minor with more than a year of unlawful presence in the aggregate who reenters or attempts to reenter the United States without inspection is subject to the permanent bar. The BIA has also held, in an unpublished decision, that there is no exception to the permanent bar for minors. 135 Example: Joaquin, a citizen of Mexico, entered the United States unlawfully in 1998 at age 5 along with his parents. The whole family stayed in the United States for over a year and then returned to Mexico in 2000. In 2003, Joaquin and his family returned to the United States again without inspection. Joaquin has triggered the permanent bar because he has more than a year of unlawful presence in the aggregate, followed by an entry without inspection. The fact that he is 15 years old does not protect him from triggering the permanent bar under INA § 212(a)(9)(C). Note that some minors may be eligible for a waiver of the permanent bar if they are applying for one of the few kinds of relief where waivers are available, such as special immigrant juvenile status.

Chapter 3

F.

INA § 245(i) Adjustment and the “Permanent Bar”

Adjustment of status is the process by which someone applies for an immigrant visa within the United States, rather than at a U.S. consulate abroad. Normally, an applicant for adjustment of status through a family member or through employment must have been “inspected and admitted or paroled” into the United States in order to be eligible to adjust status, and except for immediate relatives, 136 the applicant must also have maintained lawful immigration status prior to applying for adjustment. See INA § 245(a). INA § 245(i) is a special adjustment provision that allows those who are unlawfully present within the United States and who entered without inspection to adjust their status if a relative or employer filed an immigrant visa petition or labor certification on their behalf on or before April 30, 2001 and if they pay a penalty fee. 137 It is the official position of DHS that those persons described in both provisions of the permanent bar under INA § 212(a)(9)(C)(i) are ineligible for adjustment of status under INA § 245(i). 138 The government’s position is based on BIA decisions. 139 At the time of this manual’s writing, most courts have found either that the BIA’s interpretation is reasonable, or that they must give

135

In Re: Jose Reyes Ramirez-Zermeno, 2009 WL 773234 (BIA Mar. 10, 2009). Immediate relatives are the parents, spouses, and minor children (unmarried and under age 21) of U.S. citizens, and some battered women and children under the Violence Against Women Act (VAWA). 137 Those whose visa petitions or labor certifications were filed on their behalf between January 15, 1998 and April 30, 2001 must also prove that they were physically present in the U.S. on December 21, 2000. Derivative children and spouses also benefit from this provision. 138 See May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, p. 20. 139 Matter of Briones, 24 I&N Dec. 355 (BIA 2007); Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). 136

3-58

Tab Position 1

Immigrant Legal Resource Center June 2017

deference to the BIA’s interpretation of the law. 140 Thus, unless a person is in a limited class of applicants that filed at a time such that their adjustment was already pending before the change in law, an application for adjustment under INA § 245(i) does not cure a violation of the permanent bar. A person can only adjust under § 245(i) if she did not trigger the permanent bar.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 3.11 The Differences between “Unlawful Presence” under INA § 212(a)(9)(B) & (C) and “Unlawful Status” The term “unlawful presence” is what is called a “term of art,” meaning that it has a legal meaning that does not necessarily coincide with its common sense meaning. As we have seen in §§ 3.9 and 3.10, “unlawful presence” under § 212(a)(9)(B) is not even the same as “unlawful presence” under § 212(a)(9)(C), mainly because of the way USCIS has chosen to interpret these statutory provisions. While USCIS’ interpretations may be arbitrary, and subject to challenge, until and unless they are overturned by case law or subsequent USCIS interpretation, practitioners need to be mindful of these differences.

1. For both the three- and ten-year bars and the permanent bar, “unlawful presence” does not begin until April 1, 1997; however a person who entered the United States illegally before April 1, 1997 is in “unlawful status.” 2. Children under 18 who entered without inspection or overstayed a visa have “unlawful status” yet are not unlawfully present under INA § 212(a)(9)(B), although they are unlawfully present under INA § 212(a)(9)(C). 3. People who have affirmatively applied for adjustment of status before USCIS are not “unlawfully present” for either § 212(a)(9)(B) or § 212(a)(9)(C); yet an applicant for adjustment of status is not considered “in status” unless he or she has some other status, such as nonimmigrant visitor, through which to claim lawful status. See Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008). 141 4. People with pending applications for asylum who have not worked without authorization are not “unlawfully present,” but are in “unlawful status” unless they have

140

See Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc) (reversing the Ninth Circuit’s previous holding in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006)); Mora v. Mukasey, 550 F.3d 231, 239 (2nd Cir. 2008); Ramirez-Canales v. Mukasey, 517 F.3d 904, 910 (6th Cir. 2008); Matter of LemusLosa, 24 I&N Dec. 355 (BIA 2007), vacated by Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009). 141 Matter of Rotimi actually discusses the term “lawful continuous residence” for LPRs applying for waivers under INA 212(h), but the terms “lawful presence” and “lawful continuous residence” are similar if not interchangeable.

3-59

Chapter 3

It is also important to distinguish between “unlawful presence,” that may trigger one of these bars, and “unlawful status.” Some types of “unlawful status” do not trigger the unlawful presence bars, yet may preclude someone from eligibility for adjustment of status under INA § 245(a) for failing to maintain lawful status, and may have other immigration consequences. The best way to understand the differences between “unlawful presence” and “unlawful status” is through examples:

some other status, such as nonimmigrant visitor, which has not yet expired. See Matter of Rotimi, supra. 5. Voluntary departure is not unlawful presence, but it is unlawful status. 6. A person with a nonimmigrant visa begins to accrue unlawful presence only when the date on the I-94 expires or the application for a stay or extension of status expires or a USCIS officer or immigration judge makes a determination that the status has been terminated. However, a nonimmigrant visa holder who works without authorization has violated the terms of his or her nonimmigrant status, and is in unlawful status. 7. People with pending applications for legalization or special agricultural worker status under INA § 245A or § 210, or § 1104 of the LIFE Act, if properly filed, are not unlawfully present, but are in unlawful status until and unless their applications are approved.

Chapter 3

8. People who are granted TPS status do not accrue unlawful presence from the date the application is filed to the end of TPS status, even though they may have no legal status when they apply for TPS. People whose TPS applications are denied accrue unlawful presence during the application process, as well as after denial, unless they are in some other lawful immigration status. 142 People who have been granted TPS are also considered to be in, and maintaining, lawful status as a nonimmigrant, by statute. INA § 244(f)(4). 9. Time during stays of removal does not accrue unlawful presence, but is unlawful status. 10. People with deferred action do not accrue unlawful presence, but are in unlawful status, because although DHS has chosen not to try to remove them, they have no formal legal status. 11. People with grants of withholding of removal or deportation do not accrue unlawful presence during the period for which withholding of removal or deportation is granted but are in unlawful status. They are removable but cannot be returned to their home countries because they would be persecuted. 12. People with grants of withholding or deferral of removal under the Convention Against Torture (CAT) do not accrue unlawful presence during the period for which withholding of removal or deportation is granted but are in unlawful status. 13. People with Deferred Enforced Departure (DED) do not have unlawful presence but are in unlawful status. 14. Time in satisfactory departure under 8 CFR § 217.3 is not unlawful presence during the satisfactory departure period, but is unlawful status.

142

See May 6, 2009, USCIS Interoffice Memorandum on Consolidation of Guidance Concerning Unlawful Presence, pp. 38-39.

3-60

Tab Position 1

Immigrant Legal Resource Center June 2017

15. Time in Family Unity status is not unlawful presence, but it is an open question as to whether or not it is considered lawful status. Matter of Rotimi, supra. See also YepezRazo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 3.12 Failure to Attend Removal Proceedings Noncitizens who without reasonable cause fail to attend their removal proceedings are inadmissible for a period of five years following their subsequent departure or removal from the United States. INA § 212(a)(6)(B). This provision took effect on April 1, 1997. This only applies to removal hearings; it does not apply to noncitizens who failed to attend their deportation or exclusion hearings begun prior to April 1, 1997. Unlike INA § 212(a)(9)(A) (discussed in the next section) which applies to people who were previously ordered removed after attending their removal proceedings, INA § 212(a)(6)(B) applies to people who may or may not have been ordered removed (in absentia) but who did not attend their removal proceedings. Additionally, unlike 212(a)(9)(A), inadmissibility under INA § 212(a)(6)(B) is not waivable.

Note that under IIRIRA and pre-IIRIRA law, noncitizens who fail to attend removal or deportation proceedings after receiving notice may be further punished in several ways beyond this ground. Though not required, an in absentia removal order might be some evidence that the person had notice and failed to appear. 145 Under IIRIRA, if someone received adequate notice and cannot show that “exceptional circumstances” prevented them from attending the hearing, that person will be barred from applying for most kinds of relief for ten years. See INA § 240(b)(7). For this provision to apply, oral notice of the hearing in the person’s own language or a language the person understands is required. Exceptional circumstances are defined under INA § 240(e) 146 as battery or extreme cruelty to the person in removal proceedings or to any child or parent of that

143

See March 3, 2009, USCIS Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, p. 13. 144 See March 3, 2009, USCIS Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators at p. 12; Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 145 See id. 146 See id., p. 13; see also Matter of N-B-, 22 I&N Dec. 590 (BIA 1999) (reasonable cause is less stringent than exceptional circumstances standard; serious illness that required later surgery sufficient to meet burden); Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989) (properly documented illness a valid excuse for failure to appear).

3-61

Chapter 3

In order to establish inadmissibility, the person must have actually been in removal proceedings under INA § 240, initiated by a Notice to Appear (NTA) that had to have been served on the individual and also filed with the immigration court. 8 CFR § 1003.14(a). USCIS considers “constructive” notice adequate to establish notice in this context; for example if the notice of hearing was sent to the address the noncitizen provided, that person is considered to have received constructive notice. 143 Regarding the second requirement, that the NTA actually be filed with the immigration court, USCIS concedes that even if the person was served with an NTA, and the record establishes that the person had notice of the proceedings and her obligation to appear, but failed to do so, the person will not be inadmissible under this ground if the NTA was never actually filed with the immigration court. 144

person, or the person’s serious illness or the serious illness or death of an immediate family member, or something equally serious that is beyond the control of the applicant. Those whose cases arose before IIRIRA must show that there was a “reasonable cause” to justify their failure to appear. See former INA § 242B. The former provision would bar an applicant for 5 years from relief, but could be overcome with a motion to reopen or waiver. USCIS policies indicate that “reasonable cause” is generally regarded as “something that is not within the reasonable control of the alien,” and compare, but do not equate, this standard to the more stringent “exceptional circumstances” standard defined in INA § 240(e). Ultimately, these policies direct the officer considering an application for admission, adjustment of status, or other relief to make an independent determination based upon the “reasonable cause” standard after considering the evidence presented in the pending application. 147 WARNING: Any person in the United States with a prior deportation must obtain careful counseling and understand all their options before approaching the DHS. If you are not a highly skilled and experienced attorney or accredited representative, you should seriously consider referring out a case where the government might attempt to reinstate a prior removal or deportation order.

Chapter 3

Also, severe penalties apply to people who fail to attend their removal hearing or to depart under voluntary departure, or who disobey other laws relating to removal/deportation. § 3.13 Past Removal or Deportation/Exclusion A.

Past Removal or Deportation and Exclusion

Before the 1996 IIRIRA, a person who had been deported was inadmissible for five years, and a person who had been excluded was inadmissible for one year, following the departure from the United States. The IIRIRA increased these penalties, and applied them retroactively. See INA § 212(a)(9)(A). Under current law, the following persons are inadmissible for ten years following the departure from the United States: 1. People who were ordered removed under INA § 240, not arising from time of arrival (i.e., in any removal proceedings except those initiated at arrival); 2. People who left the United States after an order of removal was outstanding; and 3. People who were ordered excluded or deported (i.e., under the pre-IIRIRA deportation or exclusion proceedings). The law imposed a new, retroactive penalty on people in the third category, who at the time they were excluded or deported would have been inadmissible only for one or five years. Recognizing this, the DHS has stated that these people will have some advantage in terms of applying for a waiver.

147

See March 3, 2009, USCIS Interoffice Memorandum on Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, p. 14.

3-62

Tab Position 1

Immigrant Legal Resource Center June 2017

Under IIRIRA, a person who is subject to an expedited removal order at the border or a removal order from an immigration judge after proceedings initiated immediately upon the person’s arrival in the United States relating to the person’s “admissibility,” is then subsequently inadmissible for a period of five years after the date of removal. Anyone with a prior order is inadmissible for twenty years if she has been ordered excluded, deported, or removed more than once. People who were removed and who have an aggravated felony conviction are permanently inadmissible. B.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Waiver

DHS can waive this ground of inadmissibility, under INA § 212(a)(9)(A)(iii). The government asserts that this can only be done before the person returns to the United States, and the BIA agrees. See In Re Torres-Garcia, 23 I&N Dec. 866, 873 (BIA 2006). 148 Order of Exclusion or Deportation before IIRIRA. The DHS has stated that unless there are negative factors, it will grant the waiver if the person has already stayed out the five years past a deportation/removal, or one year past an exclusion/removal for inadmissibility, 149 although the bar that applies to them is ten years. In other words, the DHS appears to be willing to give a break to people who already have stayed out at least as long as they were required to before IIRIRA passed. 150 Note, however, that there is no time limit as to when the DHS can grant a waiver. DHS can grant a waiver of inadmissibility under this ground on the day after a person was removed.

People who are in the United States—as opposed to outside the United States immigrating through a U.S. consulate—may not be able to apply for this waiver, however, because of the “reinstatement of removal” provision, see below. C.

Important Warning about the Permanent Bar and about Automatic Reinstatement of Prior Deportation or Removal Order

The 1996 IIRIRA added two provisions that pose an extreme danger to persons who were deported or removed and then reentered the United States without inspection. Obtaining a waiver of the prior deportation may not be their biggest problem. Advocates should carefully analyze

148

DHS can grant a waiver for a prior deportation “nunc pro tunc,” meaning back to the time of entry if someone has already entered the U.S. without seeking this waiver in advance. However, someone in this situation is also subject to reinstatement of removal and the case will involve risk of deportation. 149 Before IIRIRA, people who had been ordered “excluded” were inadmissible for only one year. Under pre-IIRIRA law, the factors to be considered in whether or not to grant a waiver of the prior deportation or exclusion included the person’s character, hardship to family members, person’s length of residence in the United States, rehabilitation, and why and how recently the person was deported. See, e.g., Matter of Tin, 14 I&N Dec. 371 (Reg. Comm’r. 1973). These factors should still be applicable to applications for waivers of removal or deportation. 150 In deciding the waiver, the DHS should consider the same factors it did under the old standard.

3-63

Chapter 3

Example: Manuel was ordered deported in 2010 under an old Order to Show Cause and told that he was ineligible to immigrate for five years. His U.S. citizen daughter wants to immigrate him. Manuel remains inadmissible for ten years, until 2020, under current law. However, the DHS has said that it will be generous in granting waivers for people like Manuel who have already stayed out five years.

each case to see if the person comes under the reinstatement of removal or the permanent bar provisions. Reinstatement of Prior Removal or Deportation. If a person enters without inspection after being deported or removed, the DHS can simply “reinstate” the prior deportation or removal order and remove the person, without giving the person the opportunity to apply for any other relief such as cancellation, asylum, or adjustment of status. Under the statute, someone subject to reinstatement is “not eligible and may not apply for any relief.” See INA § 241(a)(5). The only exception is if the person will apply for withholding of removal, or protections under the Convention Against Torture, or NACARA.

Chapter 3

Effective Date. Initially, courts around the country were divided on whether the reinstatement of removal provision should apply to deportations and/or illegal reentries that occurred before April 1, 1997, the date the reinstatement provision became effective as part of IIRIRA. Subsequently, the U.S. Supreme Court held that reinstatement applies retroactively to all prior deportations and exclusions before and after April 1, 1997, and to all illegal entries after deportation or exclusion, whether before or after April 1, 1997. In other words, it does not matter when the person returned to the United States, reinstatement still applies if she returned illegally any time after a deportation or exclusion order. Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006). Because this is a ruling from the U.S. Supreme Court it is binding law throughout the country. Most federal circuit courts, however, have ruled that there is still an exception to reinstatement under Fernandez-Vargas for a person who, before the effective date of IIRIRA (April 1, 1997) had already taken steps to change status, such as applying for adjustment of status. 151 D.

Effect of Filing for Adjustment of Status under INA § 245(i) Prior to Reinstatement

The BIA and many circuits prohibit someone from applying to adjust status under § 245(i) if that person illegally reentered after being previously deported, excluded, or removed, on the grounds that the person is subject to the “permanent bar” provision in INA § 212(a)(9)(C). 152 See § 3.12. This means that the person must seek permission to reapply for admission from outside of the United States, and can only do so after ten years have passed since her most recent departure from the United States. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). 153

151 See Arevalo v. Ashcroft, 344 F.3d 1 (1st Cir. 2003); Faiz-Mohammed v. Ashcroft, 395 F.3d 799, 809-10. (7th Cir. 2005); Lopez-Flores v. DHS, 387 F.3d 773 (8th Cir. 2004); Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011); Valdez-Sanchez v. Gonzales, 485 F. 3d 1084 (10th Cir. 2007); Sarmiento-Cisneros v. Ashcroft, 381 F.3d 1277 (11th Cir. 2004). 152 In Duran-Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), the Ninth Circuit overturned Perez-Gonzales v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which had held if a person had filed an application for adjustment of status under INA § 245(i) along with an I-212 waiver application prior to the initiation of reinstatement proceedings, DHS could not reinstate the prior removal order until the application for adjustment was adjudicated. 153 There are a few people who applied for adjustment together with an I-212 waiver after the initial PerezGonzales ruling and before the Ninth Circuit’s reversal that may still be ultimately approved for adjustment. See Duran-Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), Duran-Gonzalez Settlement Agreement, (July 21, 2014) available at www.uscis.gov/sites/default/files/USCIS/Laws/Legal%20Settleme nt%20Notices/2014_March_DG_FINAL_settlement_agreement_SIGNED.PDF. For more information, see

3-64

Tab Position 1

Immigrant Legal Resource Center June 2017

Example: Miguel was deported in 1984. He came back to the United States with a fake visa in 1998. Now he wants to apply for adjustment of status through his U.S. citizen wife under INA § 245(a). Is it safe for him to do that?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

No! Miguel is subject to reinstatement of removal (in addition to having a fraud problem and a “permanent bar” problem). DHS may reinstate his prior deportation order when Miguel appears for his USCIS interview or at any other time. In many districts, ICE arrests people in Miguel’s situation when they appear for their adjustment interview, reinstates the deportation or removal order, and removes them from the United States very quickly. Some circuits allow an exception if the individual applied for relief before the IIRIRA effective date of April 1, 1997. See, e.g., Valdez-Sanchez v. Gonzales, 485 F.3d 1084 (10th Cir. 2007); Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011); see also Subsection A above. CAUTION: Reinstatement of Prior Order of Deportation or Removal. This is not a ground of inadmissibility, but it is important to remember. If a person who was deported or removed reenters the United States without permission, the DHS may be able to reinstate the old order and remove the person without any further consideration. INA § 241(a)(5). People facing reinstatement may still apply for withholding of removal should they have fear of return to their home country.

The following are several of the less common grounds of inadmissibility. A.

Security and Political Grounds: INA § 212(a)(3)

This ground of inadmissibility broadly defines a number of groups who are considered dangerous to U.S. security. It relates to espionage, sabotage, terrorist activity, people whose entrance would have “serious adverse foreign policy consequences, membership in Communist or totalitarian parties, Nazis, and people who have been involved in genocide.” The IIRIRA amended it to make inadmissible a noncitizen “who, under circumstances indicating an intention to cause death or serious bodily injury, incited terrorist activity.” This provision is effective upon enactment, and applies to incitement “regardless of when it occurs.” DHS refers to these grounds as TRIG, which stands for “Terrorism-Related Inadmissibility Grounds.” They may even apply to the spouse or child of a person who is determined to come within these grounds, so that the spouse or child is also deemed inadmissible. See INA § 212(a)(3)(B)(i)(IX). PRACTICE TIP: Security-related grounds and the persecution of others bar do arise in the context of removal proceedings. Make sure to screen for these potential issues with all asylum cases stemming from countries with civil conflict. If these issues are implicated, seek further information and expert advice.

also www.uscis.gov/laws/legal-settlement-notices/aurelio-duran-gonzalez-v-department-homelandsecurity.

3-65

Chapter 3

§ 3.14 Other Grounds: Terrorists, Draft Dodgers, Unlawful Voters, Stowaways, Child Abductors

There are a number of exceptions to this ground, which are described below. 1. Overview of legislation that shaped the security and terrorism grounds

Chapter 3

In response to the September 11, 2001 attacks, Congress enacted wide-ranging legislation dubbed the U.S. “Patriot Act.” Among other things the legislation: •

Adds new grounds of inadmissibility for representatives of foreign terrorist organizations or any group that publicly endorses acts of terrorist activity, and spouses and children of noncitizens who are inadmissible under any of the terrorism-related grounds;

•

Provides new unreviewable authority to the Secretary of State to designate any group, foreign or domestic, as a terrorist organization, upon publication in the Federal Register;

•

Makes any fundraising, solicitation for membership, or material support (even for humanitarian projects) of groups that are designated terrorist organizations by the Secretary of State a deportable offense (without regard to whether such activities were in furtherance of actual terrorist activity);

•

Makes solicitation of funds or other material support for groups not officially designated as “terrorist organizations” a deportable offense unless the person can prove that he “did not know, and should not reasonably have known,” that the solicitation would further the organizations’ terrorist activity;

•

Places certain limits on retroactivity where a person previously provided material support to the humanitarian projects of a terrorist organization before it was designated as such by the Secretary of State;

•

Provides that the Attorney General or the Deputy Attorney General (with no power of delegation) may certify a noncitizen as a terrorist if they have reasonable grounds to believe that the noncitizen is a terrorist or has committed a terrorist activity. In such cases, mandatory detention of a person so certified is required. Certified persons shall remain in custody irrespective of any relief from removal that they may be eligible for or granted. If the person is finally determined not to be removable, he or she may no longer be detained under this section;

•

Allows the DHS to detain a suspected terrorist noncitizen for seven days before bringing immigration or criminal charges. Noncitizens not charged within seven days shall be released;

•

Provides habeas review of the detention and the basis for the certification;

•

Provides judicial review by habeas in any district court otherwise having jurisdiction to entertain it. Decisions in any district will be based on the rule of law in the U.S. District Court for the District of Columbia, and all appeals will be made to the U.S. Court of Appeals for the District of Columbia;

•

For any person with a final order of removal who is detained under this section beyond the removal period, the Attorney General must review such detention every six months. Continued detention is allowed only upon a showing that “the release of the alien will

3-66

Tab Position 1

Immigrant Legal Resource Center June 2017

endanger the national security of the United States or the safety of the community or any person;” •

The Attorney General shall review the certification of any person every six months. If, in the Attorney General’s discretion, it is determined that the certification should be revoked the person may be released. Any certified person may request a reconsideration of their certification every six months and submit documents or evidence to support that request;

•

Requires that the Attorney General must submit a report to Congress on the use of this section every six months.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The REAL ID Act of 2005, which came into effect on May 11, 2008, expanded the terrorism grounds seen in the Patriot Act in the following ways: Expands the definitions of “terrorist activity” and “terrorist organization” thereby triggering the expansion of the terrorism-based grounds of inadmissibility and deportability.

•

Broadens the terrorism-based grounds of inadmissibility in INA § 212(a)(3)(B) and makes inadmissible anyone who “endorses or espouses” terrorist activity, anyone who has received “military-type training” from a terrorist organization, and anyone who is a member of a terrorist organization or has provided material support to a terrorist organization or a member of a terrorist organization.

•

Makes the terrorism-based grounds of deportability the same as the terrorism-based grounds of inadmissibility and therefore extends deportability to those persons who have never engaged in terrorist activity.

•

Makes anyone who is inadmissible in INA § 212(a)(3)(B) ineligible for asylum.

•

Gives the Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, the sole, unreviewable discretion to waive inadmissibility based on a material support of or membership in a terrorist organization. 2. Exceptions and exemptions from the security and terrorism grounds

By statute, a spouse or child of a person who falls within the terrorism grounds will not be found inadmissible if he or she did not know or should not reasonably have known of the person’s actions, or the consular officer or Attorney General has reasonable grounds to believe they have renounced the person’s actions. See INA § 212(a)(3)(B)(ii). In addition, INA § 212(d)(3)(B)(i) authorizes the Secretary to exempt certain people from the terrorism-related grounds of inadmissibility. The Secretary of Homeland Security has delegated the administration of these exemptions to USCIS. These determinations are not reviewable by any other government agency, including EOIR. Over the last few years, several exemptions have been created. USCIS separates exemptions into 1) group-based exemptions, and 2) situational exemptions. There is no affirmative process to request an exemption. The USCIS adjudicator bases her exemption decision solely on the information acquired in any affirmative application, or adjustment of status interview, and on any other records that DHS may have on the applicant. It is therefore imperative to develop the record in any affirmative application and related interview, as

3-67

Chapter 3

•

the applicant will not be offered an additional opportunity to produce evidence, testimony, or arguments. 154

Chapter 3

Group-Based Exemptions. Over the last few years, DHS has exercised its authority to implement twelve separate exemptions, affecting twenty-one organizations. All exemptions may be viewed on the USCIS “Terrorist Related Inadmissibility Grounds (TRIG): Group-Based Exemptions” webpage. 155 The first group-based USCIS Implementation Memorandum exempted ten organizations from TRIG. 156 Since then, DHS has also exempted eleven other organizations: 1) All Burma Students Democratic Front (ABSDF), 2) All India Sikh Students Federation-Bittu Factions (AISSF-Bittu), 3) Iraqi National Congress (INC), Kurdish Democratic Party (KDP), and Patriotic Union of Kurdistan (PUK), 4) Certain Association of Activities within the Kosovo Liberation Army (KLA), 5) Iraqi Uprisings, 6) Farabundo Marti para La Liberación Nacional (FLMN) and Nationalist Republican Alliance (ARENA), 7) Ethiopian People’s Revolutionary Party (EPRP), 8) Oromo Liberation Front (OLF), 9) Tigray People’s Liberation Front (TPLF), 10) Democratic Movement for the Liberation of Eritean Kunama (DMLEK), and 11) Eritrean Liberation Front (ELF). Because the exempted groups are always being changed or added to, it is important to check for the most updated information. Some exemptions are by Congress, and others are by the Secretary of Homeland Security, in consultation with the Attorney General and Secretary of State. Situational Exemptions. Situational exemptions are available for providing or receiving 1) material support under duress, 2) solicitation under duress, 3) military-type training under duress, 4) voluntary medical care, 5) certain applicants with existing immigration benefits, 6) certain limited material support, and 7) insignificant material support. 157 Persons charged under the security and terrorist grounds of inadmissibility and deportability need expert legal assistance. DHS may target people who are active in political movements that oppose the United States. It may target people who are not terrorists but who are linked to groups which the United States views as terrorist, such as guerrilla groups fighting U.S.-backed governments. Clients arrested in political demonstrations might possibly be charged under this ground. For assistance in such a case, contact the National Lawyers Guild National Immigration Project at 154

Cheri Attix, AILA Asylum and Refugee Liaison Committee, Practice Pointer: Mating Sense of Recent TRIG Exemptions, (Mar. 25, 2015). 155 See www.uscis.gov/unassigned/terrorism-related-inadmissibility-grounds-trig-group-basedexemptions#CAA. 156 USCIS Implementation Memo, Implementation of Section 691 of Division J of the Consolidated Appropriations Act, 2008, and Updated Processing Requirements for Discretionary Exemptions to Terrorist Activity Inadmissibility Grounds, (July 28, 2008). It exempted the following groups: (1) Karen National Union/Karen National Army (KNU/KNA), Burma; 2) Chin National Front/Chin National Army (CNF/CNA), Burma; 3) Chin National League for Democracy (CNLD), Burma; 4) Kayan New Land Party (KNLP), Burma; 5) Arakan Liberation Party (ALP), Burma; 6) Tibetan Mustangs, Tibet; 7) Cuban Alzados, Cuba; 7) Karenni National Progressive Party (KNPP), Burma; 8) Appropriate groups affiliated with the Hmong, Vietnam; 9) Appropriate groups affiliated with Montagnards, Vietnam; 10) African National Congress (ANC), South Africa. 157 For USCIS Policy Memorandum pertaining to each exemption see USCIS, Terrorism-Related Inadmissibility Grounds (TRIG): Situational Exemptions, available at www.uscis.gov/unassigned/terrorism -related-inadmissibility-grounds-trig-situational-exemptions.

3-68

Tab Position 1

Immigrant Legal Resource Center June 2017

www.nationalimmigrationproject.org or by telephone at (617) 227-9727. It is important to check for updates at USCIS for the latest on this issue.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PRACTICE TIP: Implementation of the REAL ID Act of 2005. The REAL ID Act established minimum security requirements for driver’s licenses and other government-issued forms of identification. Some U.S. licensing jurisdictions have not yet fully complied with the requirements of the REAL ID Act. See www.ncsl.org/research/transportation/count-down-to-realid.aspx for more information regarding identification requirements. B.

Ineligible for Citizenship; Draft Dodgers: INA § 212(a)(8)

INA § 212(a)(8) states that people who are “permanently ineligible” for U.S. citizenship are inadmissible. This inadmissibility ground, however, refers to a narrow group of people who have evaded military service. Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). It is not referring to anyone who does not meet the requirements to naturalize. It also does not refer to those who are ineligible for U.S. citizenship for other reasons, such as people convicted of aggravated felonies. See Matter of Kanga, above. As explained in Matter of Kanga, evading military service within the meaning of INA § 212(a)(8) includes those who leave or remain outside the United States to avoid training or service in the U.S. Armed Forces in time of war or a period declared by the President to be a national emergency.

It also does not apply to people who merely failed to register with the Selective Service, since the definition of who is a draft evader is specifically defined in the statute. See INA § 212(a)(8)(B). In addition, the amnesty given by President Carter to people who avoided the draft during the Vietnam War applies to noncitizens and should exempt them from this ground. Some draft dodgers and draft deserters are permanently ineligible for citizenship under another section of the INA. 158 The ineligible group is very small. It includes only people who requested an exemption from compulsory service in the U.S. Armed Forces on the ground of being an alien, or people who deserted the U.S. Armed Forces during World War II, the period 1971–1973, or during other conflicts. 159 The amnesty given by President Jimmy Carter to individuals who avoided the draft during the Vietnam War protects certain people from this bar. Keep in mind that while many different kinds of exemptions from military service are available, only a few of them bar a person from citizenship. A person might still be eligible for citizenship if the person falls into one of the situations set out in the USCIS Policy Manual, including if the person was not required to serve in the first place; if the request for exemption was not intelligently made; if the government granted the exemption automatically; if the exemption was not based on alienage; if the person had previously served with a NATO nation for a certain 158

INA §§ 212(a)(8), 314, 315. See, e.g., Cernuda v. Neufeld, 307 F. App’x. 427 (11th Cir. 2009) (finding that a non-citizen who filed an Application by Alien for Relief from Training and Service in the Armed Forces with his local Selective Service office could be a permanent resident, but he would never be eligible for naturalization).

159

3-69

Chapter 3

This ground does not apply to nonimmigrants who left the United States and are now seeking readmission as nonimmigrants.

length of time, or as a treaty national; of if the person served after the exemption was requested. 160 It is important to check the law in your circuit. The Ninth Circuit held that a person who is exempted or discharged on the basis of voluntary service as opposed to compulsory service is not barred from naturalizing. 161 Other circuit courts have not agreed with this distinction by the Ninth Circuit, however, and have held that if the release or discharge from voluntary service was based on alienage, the person is permanently ineligible to naturalize. 162 C.

Stowaways: INA § 212(a)(6)(D)

Stowaways are people who have boarded a ship without permission. They are inadmissible under INA § 212(a)(6)(D). Stowaways may seek parole into the United States pursuant to INA § 212(d)(5), or adjustment of status under INA § 245(h) (special immigrant juvenile status). D.

Miscellaneous Grounds

Miscellaneous grounds are listed in INA § 212(a)(10). These include: •

Chapter 3

• • •

Polygamists (who believe in and who are coming to the United States to practice polygamy); People who abduct children across international borders; Noncitizens who vote in an election in violation of any federal, state, or local law. See discussion below. People who renounce their U.S. citizenship in order to avoid U.S. taxation. 1. Polygamists: INA § 212(a)(10)(A)

Persons coming to the United States to practice polygamy are inadmissible. The ground to practice polygamy requires the person to intend to practice polygamy. For instance, someone who remarries before their divorce from a prior relationship is final is not inadmissible under this ground. Polygamy requires the belief and practice of having more than one spouse at the same time. Example: Joe married to Sally and never divorced her. However they have not been together for many years. Joe then marries Kim in Las Vegas. Joe is not inadmissible under this ground. He does not believe in the practice of polygamy; he just did not follow legal procedures of divorce. (In California, he does not have a valid marriage to Kim because one cannot get remarried until the present marriage is terminated.) This might cause other problems for Joe and Kim, if the relationships are the basis of any immigration status or benefit, but he is not inadmissible for polygamy.

160

USCIS-PM-12.I(4). Gallarde v. INS, 486 F.3d 1136 (9th Cir. 2007). 162 Dicicco v. U.S. Dept. of Justice INS, 873 F.2d 910, 913 (6th Cir.1989); see also Sakarapanee v. Department of Homeland Sec., 616 F.3d 595 (6th Cir. 2010). 161

3-70

Tab Position 1

Immigrant Legal Resource Center June 2017

2. Unlawful Voting: INA § 212(a)(10)(D) Any noncitizen “who has voted in violation of any Federal, State or local constitutional provision, statute, ordinance, or regulation” is deportable under INA § 237(a)(6) and inadmissible under INA § 212(a)(10)(D)(i). Unlike the grounds of inadmissibility and deportability for a false claim to U.S. citizenship, this ground is retroactive and therefore applies to voting at any time—before, on, or after September 30, 1996. No conviction is required.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

If this ground is raised against your client, get expert help and tell the person to check the relevant laws against illegal voting. As with the false claim to U.S. citizenship ground, this is a harsh provision with no waivers except for cancellation of removal for permanent residents under INA § 240A(a), or other special forms of relief. a. What constitutes illegal voting? The definition of unlawful voting in both INA § 212(a)(10)(D)(i) and INA § 237(a)(6) does not require guilty knowledge; it appears to include people who innocently believed that they were entitled to vote (a not uncommon occurrence).

There is at least one federal case analyzing the illegal voting removal provision that practitioners should consult. In MacDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005), the Ninth Circuit considered whether a woman was deportable for voting in violation of a Hawaii election law which provided that “any person who knowingly votes when the person is not entitled to vote” is guilty of a felony. While the Ninth Circuit did not explicitly hold that guilty knowledge or other specific intent is actually required to fall under the illegal voting ground, it did find that a court must find that the noncitizen violated all of the provisions of the law at issue to be removable and could not apply its own standard. In that case, the Court found that the immigration judge erred by applying his own knowledge standard requiring that the petitioner merely be aware that it is 163

The election laws will differ depending upon location and type of election. For instance, some criminalize the actual act of voting even though the noncitizen did not know he was ineligible to vote while others require an additional finding that the individual acted “knowingly” or “willfully.” California Election Code § 18560, for example, states that, “Every person is guilty of a crime punishable by imprisonment in the state prison … who: (a) Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.” Therefore, in certain circumstances in order to be found inadmissible or removable in California, DHS has to prove that the person voted fraudulently.

3-71

Chapter 3

A consular or USCIS official can consider whether it was a knowing violation where a knowing violation is required by the law violated. The key is that the person must not have merely voted, but that she also did so in violation of some federal, state, or local law. Practitioners should identify and analyze the voting law that was violated, and determine if there was a requirement of guilty knowledge or some other specific intent. 163 On the other hand, the DHS may argue that violation of a law with no intent requirement, such as a regulation stating who can vote, will be a basis for a finding of inadmissibility or deportability. For example, 18 USC § 611 makes voting by an alien in a federal election unlawful, with no intent or knowledge requirement. A noncitizen, therefore, who voted in a federal election could be found inadmissible or removable for unlawful voting even if she did not have any knowledge that she was prohibited from voting. If the voting occurred on or after September 30, 1996, this could also constitute a false claim to citizenship and thus trigger removability.

practically certain that her voting would result in a violation of law. The Court held that the correct standard under the Hawaiian law at issue not only required that the petitioner knowingly voted, but also that she knew she was not entitled to vote. Because the woman was not aware that she was ineligible to vote, she was not deportable. 164 The DHS might be persuaded to recognize the unfairness in targeting individuals who made an innocent mistake when voting and did not intend to do anything wrong even if the relevant election statute does not impose a mens rea requirement like that in MacDonald. For example, advocates reported in the past that the Dallas District DHS office has requested trial attorneys to move to dismiss the Notice to Appear as “improvidently issued” in the case of voters who did not have a bad intent. b. Exceptions and waivers for illegal voting i.

Narrow exception to the illegal voting inadmissibility and deportability provisions

Chapter 3

Under INA § 212(a)(10)(D) and § 237(a)(6)(B), some individuals who meet the following requirements will not be subject to the immigration and criminal consequences of having voted unlawfully or having falsely claimed to be U.S. citizens: 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. Effective Date: This change in the law is retroactive and cures false claims and illegal voting that took place before or after the enactment of the relevant statutes. Example: Claudia’s mother told Claudia that she was a U.S. citizen. Claudia grew up thinking that she was and when she was 22 she applied for a U.S. passport using the birth certificate her mother said was hers. In fact, the birth certificate was false and Claudia’s mother had lied to her all these years. Both Claudia and her mother were in fact undocumented. Claudia, thinking that she was a U.S. citizen, had voted. Claudia is still subject to the immigration penalties for unlawful voting because she doesn’t qualify for the narrow exemption. Unfortunately, there are no waivers for this ground. However, she should not fall within the inadmissibility ground for false claim to U.S. citizenship since USCIS recognizes that a false claim to U.S. citizenship requires knowledge of the falsity. See § 3.5.

164

In MacDonald, the petitioner mistakenly registered to vote on a driver license application because she thought she was a U.S. citizen based on her marriage to one. When she received a voter registration form in the mail, after conferring with her husband, she changed her answer to say she was not a U.S. citizen. Nonetheless, she received Notice of Voter Registration and believed that the government was allowing her to vote even though it had learned she was not a citizen. She then voted and was not aware that she could not.

3-72

Tab Position 1

Immigrant Legal Resource Center June 2017

ii. Waivers for illegal voting Like false claim to U.S. citizenship, there is no inadmissibility waiver for illegal voting. However, unlawful voting is not a bar to asylum or restriction on removal, and can be waived for the U visa and some other forms of relief. There is no statutory bar against the act or conviction of unlawful voting for applicants requesting cancellation of removal, although unlawful voting might impact the applicant’s ability to demonstrate good moral character.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

WARNING! Illegal Voting May Carry Other Possible Immigration Consequences. DHS, for example, could charge the noncitizen with deportability and inadmissibility for false claim to U.S. citizenship by arguing that he would not have been capable of voting at all without the false claim. This would only be true if the person actually made a false claim to U.S. citizenship, i.e., signed a voter registration card asking “Are you a U.S. citizen?” and not if the person merely showed up at the polls to vote. See § 3.5. A conviction or admission of illegal voting could also be considered a crime of moral turpitude if there was a specific intent or guilty knowledge requirement involved. See Chapter 5.

Chapter 3

3-73

Chapter 3

Tab Position 1

=

CHAPTER 4 NON-CRIMINAL GROUNDS OF DEPORTABILITY

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9

Removable for Being Inadmissible at Entry or Adjustment............................... 4-1 Present in Violation of Law................................................................................ 4-3 Violated Nonimmigrant Status ........................................................................... 4-3 Violation of Condition of Entry ......................................................................... 4-4 Marriage Problems ............................................................................................. 4-4 Failure to Register and Falsification of Documents ........................................... 4-5 Public Charge Ground of Deportation................................................................ 4-6 Alien Smuggling ................................................................................................ 4-7 Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility................................................................................................ 4-8

This chapter will discuss other non-criminal grounds of deportability. We have already mentioned some grounds of deportability such as document fraud (§ 3.4) and alien smuggling (§ 3.2) in our discussions of inadmissibility because the Immigration and Nationality Act (INA) has comparable grounds of deportability. While many grounds of deportability are closely related to grounds of inadmissibility we discussed in Chapter 3, the deportability grounds are generally much narrower than their inadmissibility counterparts. It is also important to keep in mind that in removal proceedings, the government bears the burden of proving a person is deportable by clear and convincing evidence (whereas an individual seeking admission bears the burden of proving that the grounds of inadmissibility do not apply to them). See § 1.5. The grounds of deportability operate against people who have been “admitted” to the United States—lawful permanent residents within the United States. 1 The criminal grounds of deportability will be discussed in a separate chapter. See Chapter 5. Removable for Being Inadmissible at Entry or Adjustment

The INA incorporates the grounds of inadmissibility into the deportability grounds. A noncitizen who was inadmissible when she entered the United States or adjusted her status to that of a permanent resident can be found deportable at a later time for having been inadmissible at time of entry or adjustment. INA § 237(a)(1)(A). To determine inadmissibility, courts look to the law as it was at the time of entry rather than at the time of the removal hearing. Francis v. Gonzales, 442 F.3d 131, 139-41 (2nd Cir. 2006). Example: In order to immigrate to the United States two years ago, Deepak fraudulently obtained a visa. If the DHS can show that Deepak obtained the visa by fraud, he can be 1

In some circumstances, permanent residents can be subjected to the grounds of inadmissibility rather than deportability if they are returning from travel abroad. See Chapter 1.

4-1

Chapter 4

§ 4.1

deported, because at the time of entry he was inadmissible for visa fraud even though DHS did not discover this until later, after he was admitted. Example: Lani’s father petitioned for her to immigrate as the daughter of a lawful permanent resident. When her visa was finally current, Lani attended her interview at the consulate and was admitted to the United States as a permanent resident. However, before Lani’s interview at the consulate she married her sweetheart. No one at the consular interview asked Lani if she was married, and Lani did not know she could not use her dad’s petition for her if she was married. Lani is deportable for having been inadmissible at the time of entry, even though it was not intentional fraud. Example: At the time Sylvie adjusted to become a permanent resident, she had just been convicted of a crime of moral turpitude and sentenced to seven months. It did not show up at the time United States Citizenship and Immigration Services (USCIS) checked her fingerprints, because the incident happened the week following her biometrics appointment. At the time of her interview to adjust, she did not disclose the new conviction. The officer granted her case, and she became a permanent resident. She is deportable because she was inadmissible at the time of her adjustment of status.

Chapter 4

Example: Gerry, a lawful permanent resident, was convicted of a criminal offense falling within a ground of inadmissibility. He later left the country to take a vacation abroad. When he returned from his trip, he was not questioned at the airport regarding the criminal offense and was permitted to re-enter the United States. He later applied for naturalization, and the mistake was discovered. Even though Gerry had already made it back into the United States, he is considered to have been improperly admitted since he was inadmissible upon making a new “admission” to the United States. INA § 101(a)(13). 2 According to USCIS, he is no longer considered to be a lawful permanent resident under the INA because his unlawful admission caused his status to change when he returned to the United States, and therefore he is ineligible for citizenship. INS Interpretations 318.2 and 318.3. Gerry cannot officially lose his status as a lawful permanent resident, however, until he has been found removable by an immigration judge or the Board of Immigration Appeals. PRACTICE TIP: Some people in situations like the above, who are deportable because they were inadmissible for visa fraud or mistake at the time of admission, can obtain a waiver. INA § 237(a)(1)(H). This waiver does not require a specific form and can only be requested in immigration court as relief from removal.

2

Under Vartelas v. Holder, 566 U.S. 257 (2012), if Gerry’s conviction predated the IIRAIRA effective date of April 1, 1997, he would not have been considered an “alien seeking admission” when he returned if his trip was “casual, innocent, and brief.” In that case, he would not have faced the grounds of inadmissibility upon entry and would not subsequently be deportable because of that entry.

4-2

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 4.2

Present in Violation of Law

A noncitizen who is in the United States in violation of the INA or “any other law of the United States” is deportable. INA § 237(a)(1)(B). This ground applies to all status violations, such as overstaying a visitor’s visa.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Example: Kiko entered on a visitor visa in 2006 and never left. She is deportable under this provision. § 4.3

Violated Nonimmigrant Status

A noncitizen who is in the United States on a nonimmigrant visa and does not obey the rules of the visa is deportable. INA § 237(a)(1)(C)(i). Each nonimmigrant visa has its own terms, and practitioners should research the specifics of their clients’ visas to ensure that they and their clients understand the requirements. Example: Martin has a tourist visa that does not allow him to work. Martin takes a job. He is therefore deportable for violating the terms of his tourist visa. Example: Kwan has a student visa which requires him to be a full-time student at the University of Ohio. After a few months, he drops half of his classes. Then he gets a job without getting student work permission. Kwan is deportable since he violated the terms of his student visa by not maintaining full-time coursework and working without permission. Note: The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added a new ground of inadmissibility barring F-1 students who violated a term or condition of their status from being admissible for a 5-year period. INA § 212(a)(6)(G).

Certain other nonimmigrant visa conditions are provided by regulation. One regulation provides, in addition to the criminal grounds of deportability, that a nonimmigrant violates their status by being convicted of a violent crime with a possible sentence of over a year, regardless if the visa conditions can be satisfied in jail. 8 CFR § 214.1(g). This is a separate way to violate one’s status, apart from the criminal grounds of deportation. Under 8 CFR § 214.1(f), a nonimmigrant who does not provide biometric and other required information may be deported. That regulation also provides that nonimmigrants who fail to provide “full and truthful information requested by the service” fall under this ground even if the misrepresentation was not material to admission. Id. 3

Matter of Halabi, 15 I&N Dec. 105 (BIA 1974). Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). 5 Matter of A, 6 I&N Dec. 762 (BIA 1955); Matter of C, 9 I&N Dec. 100 (BIA 1960) (incarceration of a student visa holder who continues schooling while in jail does not violate the visa status). 4

4-3

Chapter 4

This ground of deportability may be triggered even when a visa holder falls out of status for reasons outside her control. For example, a visa holder who overstays her visa because of a pending removal proceeding may come within this ground. 3 Even a nonimmigrant who timely files an application for extension of status, but falls out of status pending its approval, may face deportation under this ground. 4 Similarly, a nonimmigrant visa holder who becomes incarcerated may fall under this ground if the conditions of her status cannot be satisfied in jail. 5

The Ninth Circuit struck down this portion of 8 CFR § 214.1(f), holding that the regulation to require full and truthful disclosure of all information requested by the INS, regardless of whether the information is material, exceeded the Attorney General’s authority. Romero v. INS, 39 F.3d 977 (9th Cir. 1994). Advocates in jurisdictions outside the Ninth Circuit should still raise an argument under Romero that basing deportation on nonmaterial misrepresentations exceeds the authority Congress granted the Attorney General under INA § 237(a)(1)(C)(i). § 4.4

Violation of Condition of Entry

A person who received a waiver of one of the health grounds of inadmissibility that imposed certain conditions, and who does not comply with those conditions, is deportable. INA § 237(a)(1)(C)(ii). The Department of Health and Human Services (HHS) must issue a certificate verifying that the person has failed to comply with the terms, conditions, and controls of the waiver. In practice, this ground is rarely invoked. § 4.5

Marriage Problems

Many people immigrate through a U.S. citizen or lawful permanent resident spouse. DHS suspects that many of these marriages are fraudulent. There are two ways that a person can be found removable under this provision, INA § 237(a)(1)(G), for marriage fraud. A noncitizen who is caught participating in a fraudulent marriage is deportable. In addition, people who divorced a U.S. citizen or lawful permanent resident spouse soon after marrying or entering the United States can be found deportable if they cannot prove that their marriage was valid. INA § 237(a)(1)(G).

Chapter 4

A.

Annulment or Termination of Marriage

If a person enters the United States within two years of getting married, and then divorces or the marriage is annulled within two years of entry, the marriage is presumptively considered fraudulent, unless the person can show that it was not entered into for the purpose of evading immigration laws. INA § 237(a)(1)(G)(i). This provision essentially shifts the burden back to the immigrant in cases where the marriage terminated within the first two years. The government must only show that the immigrant married within two years of entry and that the marriage was terminated within two years after his or her entry. The termination is considered sufficient evidence to meet the government’s initial burden, and the immigrant must then show the marriage was entered in good faith. This ground is largely dealt with now through the conditional residency provisions that apply to all permanent resident applications through marriages that are less than two years old. See INA § 216; INA § 237(a)(1)(D). People who immigrate through a spouse within two years of marriage become conditional permanent residents for two years before they can become regular lawful permanent residents. If they cannot fulfill the requirements to complete their conditional residency, by filing an application to “remove the conditions” on their permanent residency, they can be placed in removal proceedings. INA § 237(a)(1)(D). Under INA § 237(a)(1)(D), a person is removable if her conditional residency is terminated. The statute also provides for exceptions for those who are

4-4

Tab Position 1

Immigrant Legal Resource Center June 2017

granted a waiver of the joint filing requirement. 6 See the ILRC’s manual Families and Immigration for more information on conditional residency. B.

Failure to Fulfill the Marital Agreement

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This second prong at INA § 237(a)(1)(G)(ii) is the traditional marriage fraud ground. In determining whether an immigrant is removable for marriage fraud, the government must show that the couple did not intend to establish a life together at the time they married. In making this determination, the court can look to conduct before and after the marriage. It is important to note that the government can also charge a person accused of marriage fraud under INA § 237(a)(1)(A) for having been inadmissible at time of entry or adjustment, and under INA § 212(a)(6)(C)(i) for having made a material misrepresentation. A waiver is available for those who committed marriage fraud if they now have a U.S. citizen or lawful permanent resident spouse, parent or child. This is a broad waiver provision and a very useful defense to those charged with deportation based on misrepresentation or fraud, in addition to those who might have been inadmissible at time of entry due to error. See INA § 237(a)(1)(H). § 4.6 A.

Failure to Register and Falsification of Documents

Failure to Meet Notification Requirements

Failure to notify DHS of a change of address is a deportable act. INA § 237(a)(3)(A). INA § 265 requires noncitizens to update DHS of each change of address within ten days of the change. This can be excused if the person shows that the omission was “reasonably excusable” or not willful. We have not heard of the DHS using this ground to remove someone, but it is a ground of deportability. Thus, it is possible that the DHS will use it, so noncitizens should make every effort to obey the rule. 7 A person is also deportable if he or she is convicted of failure to register as an alien or a foreign agent. INA §§ 237(a)(3)(B)(i) & (ii). Again, this ground is rarely prosecuted or enforced currently. B.

Conviction for Falsification of Documents

This ground of deportability should not be confused with the more common document fraud ground that depends upon a finding in a separate civil proceeding that the person has committed document fraud as defined in INA § 274C, as discussed in § 3.4. This ground should also be 6

A waiver of the joint filing requirement is available if the immigrant is no longer married to the petitioning spouse, or was battered or abused. 8 CFR 216. 7 To comply with the change of address requirement, noncitizens can file a Form AR-11, which is available (and can also be submitted) online at www.uscis.gov/ar-11. 8 U.S. v. Krstic, 558 F.3d 1010 (9th Cir. 2009).

4-5

Chapter 4

A person is deportable if she has a conviction of falsification of documents. INA § 237(a)(3)(B)(iii). This involves a violation of, or an attempt or a conspiracy to violate 18 USC § 1546, a federal criminal law relating to fraud and misuse of visas, permits, and other entry documents. One court has held that an immigrant could be prosecuted under 18 USC § 1546(a) for possessing an authentic immigration document that was procured through a false statement. 8

distinguished from false claims to U.S. citizenship under INA § 237(a)(3)(D), as discussed in § 3.5. Someone who is the subject of a final order for violation of INA § 274C document fraud is also deportable, but under a different ground, INA § 237(a)(3)(C). See below and § 3.4 for more information on this separate ground. Watch Out—a Document Fraud Conviction Might Be an Aggravated Felony! A conviction for falsely using, making, or altering a passport or other similar document can be a basis for deportation under two provisions. It is a deportable offense under INA § 237(a)(3)(B)(iii). It also can be an aggravated felony if a year’s sentence was imposed, unless it is a first offense and the person showed that he or she committed the offense to aid his or her spouse, child, or parent. INA § 101(a)(43)(P). This includes a conviction for using or making false documents. See Chapter 5 for information on aggravated felonies. C.

Final Order for Document Fraud under § 274C

Section 274C of the INA defines document fraud and sets out rules for a civil hearing and penalties for people who commit document fraud. A person who by final order in a § 274C civil hearing is found to commit document fraud is inadmissible and deportable. See INA §§ 212(a)(6)(F), 237(a)(3)(C). For a person to be inadmissible or deportable under this section, it is not enough that the person committed document fraud—she must have been notified to come to the § 274C civil hearing and be the subject of a final order from that hearing. This provision is discussed in Chapter 3, § 3.5. Limited waivers exist for inadmissibility and deportability for § 274C document fraud. In general, the waivers provide that some lawful permanent residents and some people who will immigrate through a family visa petition can obtain a waiver of the document fraud ground of inadmissibility. They must have committed the offense only to help or support their spouse or child. See INA §§ 212(d)(12), 237(a)(3)(C)(ii).

Chapter 4

§ 4.7

Public Charge Ground of Deportation

Under 1990 amendments to the INA, a person is deportable if she becomes a public charge anytime within five years of her last entry, unless she can prove that she became a public charge because of something that happened after entry. INA § 237(a)(5). Example: John is a permanent resident whose last entry into the United States was in 1989. In 1991, he was in an accident at work and became disabled. He collects Social Security Income (SSI) and other benefits, and he will never be able to work again. Is John deportable? No. John is not deportable, even though he became a public charge within five years of his last entry, because he can show that the cause of his becoming a public charge (his accident) is something that happened after his last entry. In practice, very few people are currently removed based on this ground, but a new administration could decide to enforce this provision more stringently. Often, the concern around public charge is about the inadmissibility ground because there are much stricter requirements for a person to be

4-6

Tab Position 1

Immigrant Legal Resource Center June 2017

considered deportable as a public charge as opposed to inadmissible as a public charge. A person may not be deported as a public charge for simply having received a public benefit. Matter of B, 3 I&N Dec. 323 (BIA and AG 1948). Rather, BIA case law also requires that the benefit program must provide that the state or other public entity can sue the recipient or other specified persons for repayment, the public entity must demand repayment, and the alien must refuse to pay; all three elements must be present for a person to be deported under this ground. See Matter of V., 2 I&N Dec. 78 (BIA 1944); Matter of Kowalski, 10 I&N Dec. 159 (BIA 1963); and Matter of C., 2 I&N Dec. 538 (BIA 1946). Compare this with the broader and more commonly applied ground of inadmissibility for public charge discussed in § 3.6.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Previously, individuals who because of mental illness were institutionalized for long-term care at public expense within five years of entry were deportable. However, this ground of deportability was removed when the IIRIRA revisions to the INA were enacted in 1996. § 4.8

Alien Smuggling

The alien smuggling deportation ground under INA § 237(a)(1)(E) is a little more generous than the corresponding ground of inadmissibility, because it has a time limit. The person must have committed alien smuggling before, during, or within five years of any entry into the United States to be deportable. INA § 237(a)(1)(E). The word “entry” means coming into the United States legally or illegally, with or without inspection by an immigration officer. Advocates should not concede deportability unless they have confirmed that the client knew that the person who they helped enter the United States did not have the legal right to enter, and the conduct itself meets the definition of alien smuggling, and the incident occurred during the time periods enumerated above. Additionally, as with all grounds of deportability, the government has the burden of proving that someone is deportable for alien smuggling. Example: Ricardo was admitted to the United States in 2003 as a permanent resident and never left the United States after that entry. In 2009, he paid an alien smuggler to help bring his father up from Mexico. Ricardo remained here and did not see his father until he arrived in the United States. Ricardo committed alien smuggling because he helped his father enter illegally. But he is not deportable, because he did this more than five years since his last entry into the United States in 2003. Example: Maria, a lawful permanent resident, was returning to the United States from a trip to Mexico. She was driving and had two passengers with her—her uncle and her uncle’s friend whom she had not met until agreeing to give him a ride back to San Diego. At the checkpoint, the officer asked for proof of status for all three of them. Her uncle’s friend presented an old California driver’s license, but unfortunately had no other documents. He had no valid immigration status in the United States. Without more facts, Maria should argue that she is not removable for alien smuggling at time of entry. First, she should emphasize it is the government’s burden to prove that she is deportable as charged. Second, she should argue that she did not commit alien smuggling because she did not bring an undocumented person across the border knowingly. See Chapter 3, § 3.2 for the elements of alien smuggling.

4-7

Chapter 4

For further information about what constitutes alien smuggling, see Chapter 3, § 3.2.

Even When It Is Clear Your Client Is Deportable, Relief Is Often Available! Many permanent residents can apply for § 240A(a) cancellation of removal. This will pardon any smuggling, including non-family members and even professional smuggling for pay, as long as the person was not convicted of alien smuggling. If the act of smuggling took place before April 24, 1996, a long-term permanent resident may apply for § 212(c) to waive the smuggling. Under § 212(c), even a conviction for alien smuggling may be waived, if it was entered before April 24, 1996. See Chapter 10. § 4.9

Other Grounds of Deportability That Are Similar to Grounds of Inadmissibility

Several important grounds of deportability are similar to grounds of inadmissibility. This chapter highlighted some important differences for certain grounds, however the following grounds of deportability rely largely on the same legal standard as for determining inadmissibility: 1. False claim to U.S. citizenship under INA § 237(a)(3)(D), discussed with the ground of inadmissibility at § 3.5. 2. Unlawful voting contrary to federal, state or local laws under INA § 237(a)(6), discussed with the ground of inadmissibility at § 3.14. 3. National security and terrorist grounds, under INA § 237(A)(4), discussed with the ground of inadmissibility at § 3.14.

Chapter 4

Please refer to Chapter 3 for more discussion on the above grounds. Although the grounds invoke the same language, definitions, or standards for the above grounds, it is important to remember that the burden of proof is on the government to show that an immigrant is deportable. If an immigrant is asking to be admitted, she must show that she is admissible and that the grounds of inadmissibility do not apply to her. If an immigrant is charged as deportable for one of these grounds, the initial burden is on the government. In many cases, it is important to see what evidence the government is using to meet their burden before the immigrant makes any concessions or admissions.

4-8

Tab Position 1

Immigrant Legal Resource Center June 2017

CHAPTER 5 CRIMES AND THE GROUNDS OF DEPORTABILITY, INADMISSIBILITY, AND BARS TO ESTABLISHING GOOD MORAL CHARACTER

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13 § 5.14 § 5.15

Clients with Criminal Records ........................................................................... 5-1 Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings ....................................................................... 5-3 What Is a Criminal Conviction? ......................................................................... 5-4 Definition of a Sentence ................................................................................... 5-13 The Categorical Approach in Three Steps........................................................ 5-16 Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach ................................................................ 5-24 Exceptions to the Categorical Analysis ............................................................ 5-26 Overview of Immigration Consequences of Crimes ........................................ 5-31 Aggravated Felonies ......................................................................................... 5-34 Inadmissibility and Deportability Based on Drug Offenses ............................. 5-38 Crimes Involving Moral Turpitude .................................................................. 5-58 Firearms Offenses ............................................................................................ 5-67 Other Criminal Grounds of Deportability and Inadmissibility......................... 5-72 Clearing Up a Criminal Record ........................................................................ 5-82 The Good Moral Character Requirement ......................................................... 5-85

GENERAL APPROACH: Be Cautious, but Don’t Give Up Hope. This area of the law is extremely complex and constantly changing, and even small criminal convictions can have terrible immigration consequences. Still, it is possible that your client has some hidden defense arguments that you do not suspect, even if the case looks like a slam-dunk loser. In many cases skilled attorneys have won terrific and surprising victories in this area. The rule is, if you think there is any danger that a conviction will cause immigration problems, do not send the person to immigration authorities, do not concede that the person is removable, and, if you need it, do get help in your analysis. Unless you are a real expert, often the best help that you can provide is (a) to refer the case out to an expert, and (b) at the same time, start the process of locating their criminal court records, which the expert will need to see. For a thorough analysis of the immigration consequences of crimes, refer to the ILRC’s Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (www.ilrc.org) or national books such as Immigration Law and Crimes (http://legalsolutions.thomsonreuters.com). § 5.1

Clients with Criminal Records

5-1

Chapter 5

People who have been convicted of certain crimes, or who have engaged in certain conduct without having been convicted, can be removed. Problems with drugs, crimes involving moral

turpitude (such as theft, fraud, or violence), prostitution, firearms, sexual crimes, and a host of other offenses can cause problems. Even very minor offenses can make the person inadmissible, deportable, or unable to establish good moral character. (The good moral character requirement is discussed in § 5.15.) In addition, a large group of offenses, ranging from murder to alien smuggling to theft with a suspended sentence of one year, have been designated as aggravated felonies. Many misdemeanor non-violent offenses qualify as “aggravated felonies.” Aggravated felonies carry the most severe immigration consequences. See § 5.9. If there is any chance that your client has been arrested or convicted of a crime, you must find out all the facts and analyze the case. Don’t rely on the client’s memory. Often people who go through the criminal court system do not understand or are not clearly told what has happened. Also, many people are embarrassed about criminal problems and may understate what really happened. (Conversely, sometimes clients know the reasons stated for arrest, but don’t recall the final plea, which in some cases is a lesser offense, or a careful plea to avoid immigration consequences.) You, or whoever handles the criminal part of the case, must obtain the facts yourself and do the analysis. If possible, the best time to do this is before the client has any contact with any immigration authority. In Chapter 2, you will find sample intake sheets, tips for talking to your client, and a section on obtaining criminal records for your client. This is an essential first step in analyzing your client’s criminal issues. Doing the Analysis. To analyze an immigration case with criminal issues, we must answer several questions: 1. Is the person inadmissible or deportable because of a conviction or criminal conduct? 2. If the person is in removal proceedings, what ground of inadmissibility or deportability is the client charged with? 3. What potential relief is available? 4. Is the conviction an aggravated felony? 5. Can the person eliminate the conviction under state law by using some form of postconviction relief? If so, will the post-conviction relief eliminate the conviction for immigration purposes?

Chapter 5

It is important to identify the rules under the most current case law. Federal courts and the Board of Immigration Appeals issue frequent decisions that can change the immigration consequences of an offense, and some of these changes are applied retroactively to past convictions. In addition, each state has its own criminal laws and ways of clearing up criminal records. If the client has been convicted in state court, we need to understand exactly how immigration authorities view the laws of that state. Resources. Special books are available. See “For Further Information” in Appendix A. In addition, it is a good idea to consult with a support center for criminal issues or an expert immigration attorney. If you need to get information about state criminal law and sentencing, it is

5-2

Tab Position 1

Immigrant Legal Resource Center June 2017

sometimes possible to get information by calling the Office of the Public Defender in the county where the person was convicted. § 5.2 A.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Forming Defense Goals: Deportability, Inadmissibility, and the Burden of Proof in Removal Proceedings

Deportability and Inadmissibility

In order to help your client avoid removal, you first need to know whether the person is charged with inadmissibility or deportability under the Immigration and Nationality Act (INA). As discussed in Chapter 1, which set of grounds applies to your client, or whether both apply, depends on your client’s particular situation. The criminal deportability grounds are applicable only to individuals who have been “lawfully admitted” to the United States, such as lawful permanent residents (LPR) and persons admitted as nonimmigrant visa holders. As we saw in Chapter 1, inadmissibility grounds also may be applied to lawful permanent residents when they travel abroad and return to the United States. Such individuals will be considered “arriving alien LPRs” if the government can prove that they fall within exceptions specified in INA § 101(a)(13)(C). For example, an LPR client with a drug possession conviction may be considered an “arriving alien” when returning from a trip abroad. Deportable LPRs also will be concerned with inadmissibility if they apply for adjustment of status as a defense to removal. If a deportable LPR has a family member who can file an immediate relative visa petition for him or her, the LPR may apply to adjust or “re-adjust” status, as long as he or she meets all requirements. Because those applying for adjustment of status are subject to the grounds of inadmissibility, when an LPR is found deportable for a crime, but asserts re-adjustment of status as a defense to removal, he or she must overcome any grounds of inadmissibility that may apply. By applying for adjustment of status, the LPR becomes subject to the inadmissibility grounds and not the deportability grounds. If the adjustment application is granted, the person has “new” LPR status and the deportation ground does not apply. 1 This is a useful defense where the person is not eligible for cancellation of removal, but is eligible for adjustment and is either admissible or eligible for a waiver. B.

Burden of Proof in Removal Proceedings Based on a Criminal Conviction or Activity

For lawful permanent residents who are subject to the grounds of deportability, the government bears the burden of proving, by clear and convincing evidence, that the LPR is deportable. INA § 240I(3)(A); 8 CFR § 1240.8(a). The Supreme Court has held that the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). A discussion of these standards and how they are applied in practice are in Chapter 1, § 1.4(B). Similarly, the government bears the burden of proving by clear and convincing evidence that a lawful permanent resident who returns from a trip abroad is seeking a new admission, by virtue of

Chapter 5

1

Matter of Rainford, 20 I&N Dec. 598 (BIA 1992).

5-3

coming within one of the exceptions listed at INA § 101(a)(13)(C). 2 A person who has not yet been admitted must show that she is admissible to the United States. INA § 240(c)(2). As a general rule, persons subject to removal for any reason, including a criminal conviction, bear the burden of proving that they are eligible for relief from removal, both statutorily and as a matter of discretion. INA § 240(c)(4)(A). For example, where a lawful permanent resident is found deportable, but wants to assert re-adjustment of status as a defense of removal, he bears the burden of proving that he is “clearly and beyond doubt entitled to be admitted and not inadmissible under section 212.” INA § 240(c)(2). See discussion at § 5.5. The burden of proof allocation is more complex, however, when the question is whether a conviction makes the person ineligible for relief. See discussion of the categorical approach at 5.5. § 5.3

What Is a Criminal Conviction?

The Big Picture: Most, although not all, deportation grounds based on criminal activity require a conviction. This section discusses how the term “conviction” is defined under immigration law and how to argue that your client does not have a conviction for immigration purposes. Practitioners must also be aware of the removal grounds that are based on mere conduct, even absent a conviction. Engaging in prostitution, being a drug addict or abuser, admitting to certain drug or moral turpitude offenses, being found in civil or criminal court to be in violation of a domestic violence protective order, or, especially, where the government asserts that it has “reason to believe” the person ever has been or helped a drug trafficker, can trigger adverse immigration consequences. Conduct such as making a false claim to citizenship, using false documents, and smuggling aliens also can cause inadmissibility and deportability; these are covered in Chapter 3. Many (but not all) of the criminal grounds of removal we will discuss require the person to have been convicted of a crime. For example, a person is not deportable under the aggravated felony ground unless he or she has a final conviction. If we can show that there is no conviction, the person is not removable. (Advocates should be aware that some grounds are triggered by conduct alone, but where a conviction exists, DHS will consider it proof that the person committed the conduct.) A.

Overview

Chapter 5

In almost all cases, once a defendant in adult criminal court enters a plea of guilty or no contest, a conviction has occurred for immigration purposes. This is true even if under a state rehabilitative law, the conviction ceases to exist or is held never to have finally come into being. That is because the INA at § 101(a)(48)(A), contains its own definition of when a conviction has occurred, which applies to evaluate state dispositions regardless of how state law characterizes

2

Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

5-4

Tab Position 1

Immigrant Legal Resource Center June 2017

them. It is important to note that this definition applies to all convictions, no matter when they occurred. 3 Under INA § 101(a)(48)(A) a conviction occurs (1) where there is “a formal judgment of guilt of the alien entered by a court” or, (2) “if adjudication of guilt has been withheld,

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and 2. the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 4 Thus, a guilty plea or a no contest plea, plus imposition of probation, a fine, or jail time is a conviction for immigration purposes, even if the plea is later withdrawn upon successful completion of these requirements and/or the state does not consider them to be a conviction. 5 Because most criminal courts impose requirements or restrictions upon a defendant, the second prong of the definition of conviction, imposition of punishment or restraint, can rarely be avoided. In contrast, if no penalty was imposed, or the only penalty was unconditionally suspended, the disposition arguably is not a conviction. 6 Therefore, you should first look to whether or not there was a plea, or a finding of guilt. If there is no guilty plea, no nolo contendere plea, and no finding of guilt made, there is no conviction. PRACTICE TIP: Immigration counsel should never concede that a program for rehabilitative relief resulted in a conviction without thoroughly researching the law of the state in which the person was convicted, and, if possible, getting records or a transcript to make sure that a plea or finding of guilt actually was made. B.

Dispositions That Are Not Convictions

There are many alternative dispositions that do not meet the definition of conviction under immigration law. These dispositions include:

3

5-5

Chapter 5

INA § 101(a)(48)(A) was added to the INA by § 322 of IIRIRA, which states that it “shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act. [September 30, 1996].” 4 INA § 101(a)(48)(A). 5 Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001). 6 See Retuta v. Holder, 591 F.3d 1181, 1188 (9th Cir. 2010), where the court found there was no conviction under the second prong where a noncitizen pled guilty and the judge deferred entry of judgment, imposed a small fine, and immediately suspended the fine with no conditions attached. The court ruled that the suspended fine did not amount to the “punishment, penalty or restraint” required to meet the statutory definition of a conviction for immigration purposes. Implicit in this holding was the conclusion that attending the required drug program also was not a “punishment, penalty, or restraint.” See also Romero v. Holder, 568 F.3d 1054, 1058 (9th Cir. 2009) (noting that the IJ found that requiring enrollment in a threemonth AIDS education program was not a “form of punishment, penalty, or restraint on the alien’s liberty”).

• • • • • • •

an acquittal (the person is found not guilty) a “deferred” (meaning, one that did not take place) prosecution, plea, or in some cases, sentence juvenile delinquency dispositions judgments vacated for cause infractions (sometimes; see below) dismissal under a pre-plea diversion scheme cases on direct appeal might not be a conviction in some circuits (see below) 1. Deferred prosecution, plea, or sentence

A deferred prosecution or plea means that the person never admits, and the judge never finds, that the person committed the offense. Generally the person is ordered to go to counseling or do other tasks, and if these are completed, the charges will be dropped or better charges imposed. Some states have formal, statutory deferred pleas. In other jurisdictions, defense counsel may be able to informally bargain for a deferred plea, for example by negotiating with the prosecution to put off the plea hearing for a period of time, so that the defendant can attend counseling, pay restitution, or otherwise show good faith; if the defendant succeeds, the prosecution will consider modifying or dropping the charges. A deferred sentence is not a conviction as long as there is no consequence to pleading guilty—no payment of court costs, fines, court-ordered restitution, and no probation or other requirements. Most often, the court imposes a fine or other requirements and immigration authorities will consider the result a conviction. However, the Ninth Circuit found that an unconditionally suspended fine was not a qualifying punishment or restraint, and counsel can argue that an order to attend educational or health-related counseling or treatment also is not. 7 2. Juvenile dispositions Court findings in juvenile delinquency proceedings are not criminal convictions for immigration purposes, regardless of the nature of the offense, because these are civil proceedings. 8 If the record of proceedings indicates that proceedings were in juvenile court, counsel can be assured that there is no conviction. Where there is an adult conviction for certain offenses that were committed while the person was a minor, immigration counsel may be able to argue that it does not have an immigration effect if the charge would not have been permitted to be brought in adult court in federal proceedings under the Federal Juvenile Delinquency Act (FJDA). 9 The Board of Immigration Appeals, in Matter of Devison, held that the youthful offender determination was not a conviction for immigration purposes because it was sufficiently analogous to a determination of juvenile delinquency. 10 In Devison, the Board considered a New York law which provides that the cases 7

See discussion in above footnote of Retuta v. Holder and Romero v. Holder. Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of C.M., 5 I&N Dec. 327 (BIA 1953). The exceptions are that certain delinquency dispositions may form a bar to applying for Family Unity or to petitioning for a relative. 9 18 USC §§ 5031-5042 (1994 & Supp. II 1996). 10 Matter of Devison, 22 I&N Dec. 1362, 1366 (BIA 2000)(en banc).

Chapter 5

8

5-6

Tab Position 1

Immigrant Legal Resource Center June 2017

of certain youth who are prosecuted in adult criminal court and found guilty of committing a crime while under the age of 19 may be handled in adult court as “youthful offender” adjudications. The Board held that the youthful offender determination was not a conviction for immigration purposes because it was sufficiently analogous to a determination of juvenile delinquency under the FJDA.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

In evaluating foreign convictions, the Board has held that a juvenile who is transferred to adult proceedings and suffers an adult conviction will be held to have suffered a “conviction” for immigration purposes only if he or she could have been transferred to adult court under the FJDA. 11 Advocates should argue that this federal test should also be applied to evaluate adult convictions of minors within the United States. Although any similar disposition to the New York youthful offender disposition at issue in Matter of Devison and any transfer to adult court that would not have been allowed to occur under the FJDA should not be considered a conviction for immigration purposes, the First, Sixth, and Ninth Circuits have not applied the FJDA standard to state convictions. For example, in Garcia v. INS, the First Circuit rejected the application of the FJDA standard to a Rhode Island conviction, holding that a state court conviction as an adult for an offense committed when petitioner was nearly 18 years old constituted a conviction for purposes of immigration law, and the fact that he might have been treated as a juvenile under federal law was not a violation of his right to equal protection. 12 See also Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005) (holding the Sixth Circuit held that a noncitizen designated as a “youthful trainee” under Mich. Comp. Laws § 762.11(1) had a conviction as that term was defined in INA § 101(a)(48)(A)), and Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007) (holding that a 16-year-old’s state court conviction as an adult for voluntary manslaughter constituted a conviction for purposes of immigration law). It is unclear whether counsel in those cases raised the argument that petitioner would not have been transferred to adult proceedings under the FJDA for the offense. Immigration practitioners should attempt to challenge these decisions for failing to follow uniform national definitions of terms in immigration statutes. The failure to follow a uniform national definition leads to unfair results, since the outcome of a removal case will depend upon the many variations in criminal laws among the 50 states. Increasingly, the U.S. Supreme Court and circuit courts have enacted uniform national definitions of terms in immigration statutes based on federal law. 13 It appears that none of the courts in the cases cited above addressed this question. Practitioners should therefore argue that following varying state determinations in cases involving juveniles is a violation of the equal protection clause because it will lead to disparities 11

5-7

Chapter 5

Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981)(since the juvenile’s foreign crime could not be transferred to adult court under the FJDA, it will not be considered a conviction for immigration purposes regardless of how the foreign country treated it); Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) (foreign offense which might or might not be transferred to adult court under FJDA must be treated as adult conviction by foreign jurisdiction in order to be held a conviction for immigration purposes). 12 239 F.3d 409 (1st Cir. 2001). 13 Lopez v. Gonzales, 549 U.S. 47 (2006) (holding that for the “federal analogue” drug offense analysis, the standard is whether the offense would be classed as a felony under federal law, and not the convicting jurisdiction); Cazarez-Gutierrez v. INS, 356 F.3d 1015 (same).

in the treatment of similarly situated juveniles under immigration law. Immigration counsel should argue that a noncitizen defendant should get the same treatment he or she could have received under federal law pursuant to the FJDA. Juvenile court proceedings still can create problems for juvenile immigrants under the so-called “conduct grounds.” A juvenile delinquency disposition that establishes that the youth has engaged in prostitution, is or has been a drug addict or abuser, or has been or helped a drug trafficker, is likely to cause immigration problems. 14 The inadmissibility ground based on the government having “reason to believe” the person was or helped a drug trafficker under INA § 212(a)(2)(C) is particularly onerous. Example: Andrea is 16. She was found guilty in juvenile court of theft. Because her case was handled in juvenile court, Andrea does not have a conviction. CAUTION! Although a juvenile disposition is not a conviction for immigration purposes, the immigration judge can still consider juvenile conduct in making discretionary decisions. Gang activity and inability to show rehabilitation after juvenile incidents might influence a judge’s final decision in a case. Additionally, these factors may impact a bond decision. For instance, a judge might determine a person is a gang member based on juvenile dispositions and decide that he poses a danger to others and deny bond. Finally, some “conduct-based” removal grounds do not require a conviction. DHS has asserted that minors can be inadmissible as drug abusers or addicts, for coming within the health grounds (including being a danger to self and others), and based on DHS having “reason to believe” the minor participated in drug trafficking. 3. Conviction vacated for legal error Immigration authorities will not question the validity of a state order vacating a conviction for cause, but will give “full faith and credit” to the state court. 15 When a court acting within its jurisdiction vacates a judgment of conviction for cause, the conviction no longer constitutes a valid basis for deportation or exclusion. 16 The conviction must have been vacated for cause, not merely for hardship or rehabilitation. In Matter of Pickering, the BIA held that a conviction is not eliminated for immigration purposes if the court vacated it for reasons “solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings.” 17 Therefore, an order vacating a conviction based solely on humanitarian or rehabilitative factors will not eliminate the conviction for immigration purposes. However, an order that cites legal or procedural errors, including ineffective assistance of counsel due to defense counsel’s failure to advise the client of the immigration consequences of the conviction, 18 will eliminate the conviction for immigration purposes. 14

See INA §§ 212(a)(2)(D), 212(a)(1)(A)(iv), 237(a)(2)(B)(ii) and 212(a)(2)(C). Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). 16 Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). 17 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). 18 The U.S. Supreme Court held that noncitizen defendants have a Sixth Amendment right to be affirmatively and competently advised of the immigration consequences of their criminal disposition(s).

Chapter 5

15

5-8

Tab Position 1

Immigrant Legal Resource Center June 2017

Example: Emilio filed a petition for writ of habeas corpus in the state superior court where he was convicted of a criminal offense. In his petition, he argued that at the time he entered his plea the court failed to inform him of the nature of the charge and elements of the offense. The court reviewing his petition agreed and vacated his conviction for legal cause.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

NOTE: An expungement, set-aside, or dismissal in most cases does not eliminate the conviction for immigration purposes. Vacating a conviction on constitutional grounds or due to legal error is distinct from statutes “erasing” a conviction for rehabilitative purposes. There are two exceptions to this rule. First, an “expunged” conviction is not a bar to eligibility for Deferred Action for Childhood Arrivals (DACA). Second, in immigration proceedings arising with the Ninth Circuit only, “expungement” of a first conviction of a minor drug offense, where the conviction occurred on or before July 14, 2011, may eliminate the conviction for all immigration purposes. See Subsection 5, below. 4. Infractions Under some state and municipal laws, certain minor offenses—sometimes called infractions or offenses—are handled in unconventional criminal proceedings, which do not require the usual constitutional protections of a criminal trial such as access to counsel, the right to a jury trial, or the requirement that the prosecutor prove guilt beyond a reasonable doubt. In some cases, these dispositions are held not to be “convictions” for immigration purposes. Consider these factors in arguing that a disposition is not a conviction for immigration purposes. The BIA has held that an infraction or other non-misdemeanor offense would not constitute a conviction for immigration purposes if the plea was entered in proceedings that lack the following constitutional protections: •

The prosecution’s burden of proof is lower than beyond a reasonable doubt. In Matter of Eslamizar, the BIA found that an Oregon violation was not a conviction because the prosecution only needed to prove guilty by a preponderance of the evidence.

•

The defendant does not have a right to a jury trial at the trial or appeal stage. In Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012), the immigrant argued that a conviction under a Kansas municipal ordinance was not a conviction because he was not entitled to a jury trial. The BIA rejected this argument noting that the defendant had a right to appeal the conviction to a higher court where he would be entitled to jury trial. Without a right to a jury trial at some stage in the proceeding, the offense should not qualify as conviction.

The above factors were central to the BIA’s determination of whether the offense qualified as a conviction under INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A). The BIA stated that the offense constitutes a conviction “so long as it was entered in a ‘genuine criminal proceeding,’ that is, a proceeding that was ‘criminal in nature under the governing laws of the prosecuting jurisdiction.’” Matter of Rivera-Valencia, 24 I&N Dec. 484, 486-87 (BIA

5-9

Chapter 5

Criminal defense counsel’s failure to do so will be held ineffective assistance of counsel sufficient to vacate the conviction, if prejudice is shown. Padilla v. Kentucky, 130 S.Ct. 1473 (2010).

2008) (quoting Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004)). In addition to the above constitutional factors, the BIA has relied on other factors to determine if the plea was entered in “genuine criminal proceedings.” The following are factors against holding the disposition to be a conviction: •

The infraction cannot be used as a basis to enhance the sentence for a subsequent misdemeanor or felony offense. Cuellar, 25 I&N Dec. at 853. In Cuellar, the BIA emphasized that the Kansas criminal code allowed courts to consider prior municipal ordinance violations in calculating the sentence for subsequent convictions. Id.; see also State v. Vega-Fuentes, 264 Kan. 10, 14-15 (Kan. 1998).

•

The infraction is only punishable by a fine or jail of six months or less. In Eslamizar, the BIA noted that these offenses would be categorized as “petty offenses” for which there is no right to a jury trial. See Eslamizar, 23 I&N Dec. at 684 n. 4.

•

The local, state, or federal law explicitly states that a plea to the infraction imposes no disability or legal disadvantage or that prosecution of such conduct is not prosecution of a crime. Id. at 687.

If a misdemeanor/infraction is prosecuted as a misdemeanor, with the attendant constitutional protections, and only reduced to an infraction following conviction, it is likely that the disposition will be found to be a conviction for immigration purposes. Example: Jose was convicted of petty theft, classified as a Class A violation under the criminal laws of Oregon. The prosecution of this offense involved a non-conventional criminal proceeding. Jose had no right to a jury and the prosecution only had to prove guilt by a preponderance of the evidence instead of beyond a reasonable doubt. Because Jose’s offense was classified as a minor one and the constitutional safeguards that are normally present in a criminal proceeding were absent, Jose was convicted of an infraction which is not considered a conviction for immigration purposes. NOTE: Because states differ widely in their definitions of quasi-criminal offenses, or infractiontype offenses, and their procedures for adjudicating them, be sure to compare these procedures and definitions under the law of the state in which the offense occurred to those in Eslamizar and Cuellar to ensure that they are sufficiently analogous to support an argument that the minor offense is not a conviction for immigration purposes. 5. Effect of rehabilitative relief such as expungements: DACA rules, and Ninth Circuit exception for some first minor drug offenses from before July 15, 2011

Chapter 5

“Rehabilitative relief” refers to state laws that will eliminate a conviction for state purposes, not based on a legal error in the proceedings, but based on the fact that the defendant subsequently completed probation or some other rehabilitative requirement. Different states have different names for rehabilitative relief provisions, such as expungement, diversion, set-aside, sealing of records, deferred action, etc. Some state forms of relief eliminate almost all state consequences of the conviction or arrest, while others provide that the conviction still exists for some purposes (for example, it can count as a prior conviction if the person offends

5-10

Tab Position 1

Immigrant Legal Resource Center June 2017

again, or can be a basis to forbid possession of a firearm). The same phrase, e.g., “expungement,” can refer to very different laws depending on the state. With a few exceptions, state rehabilitative relief does not eliminate a conviction for immigration purposes. If there has been a plea or finding of guilt and the court has ordered any kind of penalty or restraint, immigration authorities will consider the disposition to be a conviction despite the fact that it has been eliminated under state law by some kind of rehabilitative relief. 19 This is now the rule in all circuits, including the Ninth Circuit, which previously had made an exception for first time simple possession or lesser drug offenses (see further explanation below). It is therefore important to research what types of state dispositions do not require an up-front plea of guilty or do not impose a form of punishment, penalty, or restraint. Without a plea or finding of guilt, and/or imposition of some kind of penalty, a disposition cannot be defined as a conviction under INA § 101(a)(48).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

a. Exceptions: Where rehabilitative relief is effective in immigration proceedings First, in immigration proceedings arising with the Ninth Circuit only, any rehabilitative relief will eliminate a conviction for all immigration purposes, if it was a first drug conviction, from on or before July 14, 2011, for simple possession, possession of paraphernalia, or a less serious offense (but not for being under the influence), and if the defendant meets other requirements.20 Second, for purposes of the Deferred Entry for Childhood Arrivals (DACA) program, an “expungement” (interpreted as any rehabilitative relief) eliminates a conviction as an absolute bar to eligibility, although the conviction still may be considered as a negative factor for discretion. 21 The Obama Administration initiated the original DACA program on June 15, 2012. At this writing, it is not clear what the Trump Administration will do with the program. NOTE: In immigration proceedings arising within the Ninth Circuit (Alaska, Arizona, California, Idaho, Hawaii, Montana, Nevada, Oregon, and Washington), a first conviction for certain minor drug offenses that occurred before July 15, 2011 will not be a “conviction” for immigration purposes even if the individual plead guilty, as long as some kind of state relief erased the conviction and the person meets other requirements. This is the one exception to the rule—where an “expunged” conviction after a guilty plea under a first offender program will not constitute a conviction for immigration purposes. But if a person travels outside the Ninth Circuit (e.g., flies back into the United States at Miami), this rule will not be upheld. Additionally, beware! Unless it has subsequently been vacated for cause, a conviction under the same diversion program, with a guilty plea, on or after July 15, 2011, will be considered a conviction for immigration purposes. 19

5-11

Chapter 5

See Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), and subsequent cases, interpreting INA § 101(a)(48). 20 The person also must not have violated probation or had a conviction or prior pre-trial diversion program. It is possible that two convictions received in the same hearing can be eliminated in this manner, if each would qualify. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), prospectively overturning Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. July 14, 2000), and see ILRC Practice Advisory at www.ilrc.org/sites/default/files/resources/practice_advisory_lujan_and_nunez_10.11.pdf. 21 See DACA Frequently Asked Questions at www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-daca, and see ILRC, DACA: The Essential Legal Guide at www.ilrc.org/daca-manual.

6. Cases on direct appeal Before the definition of a conviction in INA § 101(a)(48) was enacted in 1996, both the Board of Immigration Appeals and the Supreme Court had required that a conviction be final before it could be used to support a conviction-based ground of deportability. 22 Some courts have held that the enactment of § 101(a)(48) subverted the requirement of finality in immigration proceedings. A key question is, under § 101(a)(48), must the right to file a direct appeal of a criminal conviction be exhausted or waived, in order for the conviction to be sufficiently “final” for immigration purposes? In other words, is a conviction on direct appeal of right a “conviction” for immigration purposes? To date the BIA has declined to publish a decision on the issue. In 2009, it held that a conviction that was the subject of late appeal, filed with court permission, was a conviction for immigration purposes, due to the lateness of the filing. It reserved decision as to the effect of § 101(a)(48) on finality in general. Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). 23 In 2015 the Board held that removal proceedings may be delayed and administratively closed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Montiel, 26 I&N Dec. 555 (BIA 2015). In Montiel the Board again declined to reach the issue of the effect of § 101(a)(48) on finality. It noted that the case arose in the Ninth Circuit, which had interpreted § 101(a)(48) to mean that a conviction on direct appeal remained a conviction for immigration purposes, and it noted that courts are split on the issue of finality. Id. at 558 and n. 5. Federal courts are split. The First, Fifth, Seventh, Ninth, and Tenth Circuit Courts of Appeals have held that INA § 101(a)(48) erodes the finality requirement in some way, and upheld the various dispositions at issue as convictions. 24 In 2014, the Third Circuit held that a judgement on direct appeal of right is not a conviction for immigration purposes. 25 In its examination of prior decisions, the court pointed out that the decisions by the First, Fifth, and Seventh Circuits addressed finality outside of the context of a direct appeal of right.26

Chapter 5

If a conviction is on a direct appeal of right, counsel should argue that it is not sufficiently final for immigration purposes, and in the alternative should argue under Matter of Montiel that circumstances warrant that removal proceedings be administratively closed, to await the outcome of the criminal appeal. 22 Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955) (holding that an “on file” system in Massachusetts did not constitute sufficient finality to be a basis for deportation under the Act); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). See also 8 CFR § 242.2(b). 23 In an unpublished decision, the Second Circuit remanded that case to the BIA, on the grounds that an appeal filed late with permission is the same as other appeal Cardenas Abreu v. Holder, 378 Fed. Appx. 59 (2nd Cir. 2010). 24 Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004); Planes v. Holder, 652 F.3d 991, 995-96 (9th Cir. 2011) pet. for reh’g den., 686 F.3d 1033 (9th Cir. 2012); Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir. 2011); Puello v. Bureau of Citizenship and Immigration Services, 511 F.3d 324, 332 (2nd Cir. 2007). For further discussion of appeals and finality, see Kesselbrenner and Rosenberg, Immigration Law and Crimes, § 2.5 (http://legalsolutions.thomsonreuters.com). 25 Orabi v. AG of the United States, 738 F.3d 535 (3rd Cir. 2014). 26 See Orabi, 738 F.3d at 540-444.

5-12

Tab Position 1

Immigrant Legal Resource Center June 2017

Example: Frederick was charged with passing false checks. He was convicted at trial. His lawyer has appealed his conviction to a higher court. Depending on the circuit in which he lives, Frederick may or may not have a conviction for immigration purposes during the pendency of his appeal. It is likely that DHS will consider this a final conviction while the appeal is pending. Frederick might have an argument that it is not a final conviction, depending on which circuit has jurisdiction over his case.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

If the appeal is successful resulting in the conviction being vacated for legal or constitutional defect, a conviction for immigration purposes no longer exists. 27 § 5.4

Definition of a Sentence

Many removal grounds are triggered only when a certain sentence requirement is met. These sentence requirements can vary from the sentence imposed, actual sentence served, or potential sentence of the offense. If counsel can argue that the sentence requirement has not been met, then the person may not be removable as charged. It is important, therefore, that counsel analyze the sentence in the criminal case at hand and compare it with the relevant sentencing provision in the immigration law before conceding removability. A.

Definition of “Sentence Imposed” for Immigration Purposes

Usually the immigration ground depends on the sentence imposed (“term of imprisonment”). The immigration statute defines “sentence imposed” as the “period of incarceration or confinement ordered by a court of law, regardless of suspension of the imposition or execution of that imprisonment in whole or in part.” INA § 101(a)(48)(B). This means that any amount of time that a judge orders the person to spend in jail or prison as a result of a conviction counts as a “sentence imposed,” even if the person never actually spends a single day in jail. Sometimes a criminal court judge will “suspend imposition” of a sentence, meaning that the sentence, though ordered, is not imposed. The judge instead will just order the person to go to jail as a condition of probation. While the time on probation does not count towards the sentence, the jail time imposed as a condition of probation will count as the “sentenced imposed” for immigration purposes. Sometimes a judge imposes a sentence and “suspends execution,” meaning that he does not make the person serve the entire time. In this case, the entire sentence the judge imposed will count as the “sentence imposed.” If no jail time is mentioned, then there is no sentence. Example: Bernardo was convicted of misdemeanor theft, his first offense. He was given three years of probation. Imposition of sentence was suspended and he was ordered to spend 100 days in jail as a condition of probation. Bernardo has a “sentence imposed” of 100 days. (Notice that the three years of probation has no effect.) Example: Josephine was convicted of misdemeanor theft, her first offense. She was sentenced to a year in jail, but the judge suspended execution of all of it and she did not have to go to jail at all. However, for immigration purposes Josephine had a “sentence imposed” of one year, which makes her theft offense an aggravated felony. 28

28

See, e.g., Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011). See INA § 101(a)(43)(G).

5-13

Chapter 5

27

Some additional points to consider when dealing with the definition of the term “sentence” in INA § 101(a)(48)(B) include: •

This language refers to the sentence actually imposed, not to the potential sentence.

•

It does not include the period of probation or parole. Counsel should be sure to distinguish this from a sentence of imprisonment. However, under the law of a few states, such as Georgia and Texas, the term probation sometimes is used to refer to a sentence. Persons dealing with convictions and probation from those states should consult an expert to determine what sentence actually was imposed.

•

The Supreme Court held that time imposed by recidivist sentence enhancements (e.g., petty theft with a prior) will count towards the length of sentence imposed. United States v. Rodriquez, 553 U.S. 377 (2008), overruling in part United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc).

•

The time served after a probation or parole violation is included as part of the “sentence imposed.” 29 Example: The judge suspends imposition of sentence, orders three years’ probation, and requires jail time of four months as a condition of probation. The defendant is released from jail after three months with time off for good behavior. For immigration purposes the “sentence imposed” was four months. However, if this defendant then violates probation and an additional 10 months is added to the sentence, she will have a total “sentence imposed” of 14 months.

B.

Offenses That Are Aggravated Felonies Based on a One-Year Sentence Imposed

The following offenses are aggravated felonies if and only if a term of imprisonment of at least one year was imposed. A sentence of 364 days or less will prevent them from being aggravated felonies. 30 • • • • • • • •

Crime of violence, defined under 18 USC § 16 Theft (including receipt of stolen property) Burglary Bribery of a witness Commercial bribery Counterfeiting Forgery Trafficking in vehicles which have had their VIN numbers altered

Chapter 5

29

Matter of Perez-Ramirez, 25 I&N Dec. 203, 205 (BIA 2010) (“the modification of the respondent’s sentence following his probation violation, which resulted in a sentence to confinement of 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings, rather than punishment for a separate offense”); United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (a defendant sentenced to 365 days probation who then violated the terms of his probation and was sentenced to two years imprisonment had been sentenced to more than one year for purposes of the definition of an aggravated felony). 30 See INA § 101(a)(43), subsections (F), (G), (P), (R), and (S).

5-14

Tab Position 1

Immigrant Legal Resource Center June 2017

• • •

Obstruction of justice Perjury, subornation of perjury Falsifying documents or trafficking in false documents (with an exception for a first offense for which the alien affirmatively shows that the offense was committed for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Even a misdemeanor offense with a suspended one-year sentence imposed may be an aggravated felony. Note that many other offenses are aggravated felonies regardless of the sentence imposed, such as offenses relating to drug trafficking, firearms, sexual abuse of a minor, or rape. For example, a conviction of possession for sale of a controlled substance is an aggravated felony regardless of the sentence. C.

Other Sentence Provisions in the INA 1. Inadmissible for two or more convictions resulting in sentences of five years or more

A noncitizen is inadmissible if she has been convicted of two or more offenses for which the aggregate “sentences to confinement actually imposed” equaled five or more years. INA § 212(a)(2)(B). Any two valid convictions will trigger the statute; whether they arose from a single scheme of misconduct or involved moral turpitude is not relevant. 2. The petty offense exception to the moral turpitude inadmissibility ground The above definition of “sentence imposed” also applies to persons attempting to qualify for the petty offense exception to the moral turpitude ground of inadmissibility, which holds that a person who has committed only one crime involving moral turpitude is not inadmissible if the offense has a maximum possible sentence of one year or less, and the sentence actually imposed was six months or less. INA § 212(a)(2)(B). 3. Deportable for one conviction of a crime involving moral turpitude A noncitizen is deportable for one conviction of a moral turpitude offense committed within five years of admission if the offense has a maximum possible sentence of one year or more. INA § 237(a)(2)(A). 31 This applies in removal proceedings that were initiated on or after April 1, 1997. 32 4. Bar to withholding of removal 33 for one or more aggravated felony convictions where an aggregate five-year sentence was imposed Withholding of removal, sometimes referred to as restriction on removal, is a form of relief similar to political asylum. 34 A noncitizen who has been sentenced to an aggregate term of

5-15

Chapter 5

31 See also former INA § 241(a)(2)(A), as amended by AEDPA 436(a). Effective date provided under AEDPA § 436(b). 32 Noncitizens whose deportation cases were initiated before April 24, 1996 are subject to the former deportation ground, which requires that a sentence of one year had to have been imposed. See former INA § 241(a)(2)(A)(i), in effect before passage of AEDPA. 33 Formerly called withholding of deportation.

imprisonment of five years or more for one or more aggravated felony convictions is barred from eligibility for withholding. 35 5. Bar to the former § 212(c) relief for those who served five years of imprisonment for one or more aggravated felonies A permanent resident is barred from applying in removal proceedings for the former § 212(c) relief if he has actually served five years in prison for one or more aggravated felony convictions, based on a plea taken on or after November 29, 1990. § 5.5

The Categorical Approach in Three Steps

Once the government has proved the existence of the noncitizen’s conviction, the removability inquiry may have only just begun. The categorical analysis controls the next question, which is whether the offense of conviction actually triggers the ground of removal alleged in the NTA. The issue is whether the conviction is of an offense that actually is an aggravated felony, crime involving moral turpitude, firearm offense, offense relating to a controlled substance, or other ground of deportability or inadmissibility. With a few exceptions (see § 5.6), immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal. Competent use of the categorical approach may be the single most important defense strategy available to immigrants convicted of crimes. This is especially true now that the Supreme Court has addressed how the analysis must be applied, in three recent decisions: Mathis v. United States, 136 S.Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). In Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) the BIA adopted the Supreme Court’s analysis. 36 Mathis, Descamps, and Moncrieffe effectively overrule a lot of past precedent, to the benefit of immigrants. In fact, if you represent an immigrant convicted of a crime and do not understand how to use the categorical approach in light of these decisions, you may be doing your client a terrible disservice. Relying on older precedent, you may decide that the conviction has adverse immigration consequences, when under these cases it should have no consequences or at least less serious ones.

34

See INA § 241(b)(3), replacing former INA § 243(h). INA § 241(b)(3)(B). 36 The BIA’s 2016 Chairez decision adopts the Supreme Court’s reasoning in Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013) and clarifies the earlier BIA decisions Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015). The Attorney General had stayed the earlier Chairez opinions while awaiting the Supreme Court’s decision in Mathis. After Mathis was published, the Attorney General lifted the stay and remanded Chairez to the Board to decide in accord with Mathis. See Matter of Chairez and Sama, 26 I&N Dec. 796 (AG 2016), lifting the stay imposed at 26 I&N Dec. 686 (AG 2015). The Board published Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) to affirm its adherence to Mathis. The Board further clarified that, when determining whether a statute is divisible under Mathis, immigration judges may “peek” at a conviction record to discern whether the statutory alternatives define “elements” or “means,” provided state law does not otherwise resolve the question. See Matter of Chairez, 27 I&N Dec. 21 (BIA 2017).

Chapter 5

35

5-16

Tab Position 1

Immigrant Legal Resource Center June 2017

This section provides a step-by-step guide on how to use the categorical approach under recent Supreme Court precedent. It is more of a how-to guide than an analysis of the reasoning and full implications of the key decisions. For an in-depth discussion of Moncrieffe, Descamps and Mathis, as well as related opinions such as Mellouli v. Lynch, 135 S.Ct. 1980 (2015) and Johnson v. United States, 135 S.Ct. 2551 (2015), see Practice Advisories on these opinions that are available online. 37 For an expanded version of this article, including case examples and further discussion of Mathis, see “How to Use the Categorical Approach Now” at www.ilrc.org/crimes and see other online Advisories. 38

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

As always, how one uses new arguments depends on where one is in proceedings. Advocates representing people in removal proceedings can advance any good argument. Advocates considering whether to file an affirmative application, where this would expose a potentially removable person to authorities, must be somewhat more conservative and should consider the chances that the argument might be rejected while the application is pending. Criminal defenders always try to act conservatively by pleading specifically to one of the “good” immigration offenses within a criminal statute, even if the specific plea ought not to be necessary under the categorical approach. OVERVIEW OF THE CATEGORICAL APPROACH Let’s say that a client comes in who has an Iowa conviction for burglary for which she was sentenced to 16 months. You know that a burglary conviction with a sentence of a year or more is an aggravated felony under INA § 101(a)(43)(G). How do you know if her conviction is an aggravated felony? Is every offense that a state labels “burglary” an aggravated felony if a year or more is imposed? No, it isn’t, and this is the core of the categorical approach. The title of the offense—burglary, theft, assault—does not control. Instead, we undertake a detailed legal analysis, based on the minimum conduct to violate the criminal statute. This approach can take up to three steps. 37

5-17

Chapter 5

At www.nipnlg.org/publications.htm, scroll to see “How Johnson v. United States May Help Your Crime of Violence Case” (by the National Immigration Project of the National Lawyers Guild (NIP/NLG)); (July 6, 2015); Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds” by the NIP/NLG and the Immigrant Defense Project (IDP) (June 8, 2015); “Matter of Chairez-Castrejon: BIA Applies Moncrieffe and Descamps to Modify and Clarify Its Views on Proper Application of the Categorical Approach” by NIP/NLG and IDP (July 31, 2014); “Descamps v. United States and the Modified Categorical Advisory Approach” by NIPNLG and IDP (July 17, 2013) (hereafter “Descamps Advisory”); and “Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach” by NIP/NLG, IDP, and the Legal Action Center of the American Immigration Counsel (May 2013) (hereafter Moncrieffe Advisory). At www.ilrc.org/crimes scroll to see “Some Felonies Should No Longer Be “Crimes of Violence” for Immigration Purposes under Johnson v. United States” (August 2015); “Great Ninth Circuit Case On Divisible Statutes; California Burglary Never Is Attempted Theft (Rendon v. Holder) August 2014); “Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses In The Ninth Circuit” by ILRC (May 2013) (hereafter “Fourteen Crim/Imm Defenses”). 38 See also, e.g., July 1, 2016 “Mathis Practice Alert” by National Immigration Project of the National Lawyers Guild and Immigrant Defense Project at www.nipnlg.org.

In Step 1 of the categorical approach, we compare the “generic” definition in the removal ground with the elements of the criminal statute. Every criminal law term that appears in removal grounds (e.g., burglary, crime involving moral turpitude) must have its own technical, federal definition, referred to as the “generic” definition. We will compare this generic definition to the state (or federal or other) statute our client was convicted of. Here we do not look at what the client actually did, or pled guilty to doing. Instead, we identify the minimum possible conduct that has a realistic probability of being prosecuted under the criminal statute, and compare that conduct to the generic definition. If the elements match up sufficiently, the removal ground applies and the immigrant loses. In that case, anyone who ever is convicted of that offense will come within the removal ground. But if the elements don’t match sufficiently, the statute is “overbroad.” There is no categorical match. If there is no categorical match, we breathe a sigh of relief. Our client will win as long as the statute is not “divisible.” We now move to Step 2 to determine whether the statute is divisible. In Descamps and Mathis, the Supreme Court affirmed that a statute must meet a strict standard to be “truly” divisible. In many prior decisions, federal courts and the Board of Immigration Appeals have not correctly applied this test. Because of this, a lot of published precedent on specific offenses must be considered overruled, in favor of the immigrant. This is one reason that it is important to have a basic understanding of the categorical approach: we can’t rely on (bad) past precedent. In many cases, the criminal statute will not be truly divisible under the Supreme Court’s standard. In that case—where the statute is overbroad (not a categorical match per Step One) and indivisible (not a divisible statute per Step Two)—the client wins big. No conviction under the statute ever triggers the removal ground, for any purpose: deportability, inadmissibility, or eligibility for relief. It does not matter to what facts the person pled guilty; no one convicted under the statute, under any circumstances, comes within the removal ground. If instead the statute is truly divisible, we go on to Step 3, the “modified” categorical approach. Here an immigration judge or officer may look at a limited set of documents from the client’s criminal record, called the reviewable record of conviction, to see if it conclusively shows of which statutory elements he or she was convicted. If the record identifies those elements, the adjudicator performs the categorical analysis on those. Now that we’ve described the whole process once, we will go over it again in a more formal manner discussing the three questions: Is there a categorical match? If not, is the statute divisible? If so, does the record of conviction identify the specific crime? STEP 1: IS THERE A CATEGORICAL MATCH?

Chapter 5

To determine if there is a categorical match we determine: (a) What are the elements of the crime that is listed in the applicable removal ground (the “generic” definition)? (b) What are the elements of the offense in the criminal statute of which the client was convicted (the minimum conduct required to violate that statute)? and (c) Does the removal ground definition match every element of the offense in the criminal statute? As the Supreme Court summarized: To determine whether a prior conviction is for generic burglary (or other listed crime), courts apply what is known as the categorical approach: They focus solely on whether the

5-18

Tab Position 1

Immigrant Legal Resource Center June 2017

elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Identify the “generic” definition of the crime listed in the removal ground39 The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of criminal law terms, e.g., “crime involving moral turpitude,” “crime of child abuse,” “controlled substance,” “crime of violence,” “burglary,” “firearm,” “sexual abuse of a minor,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the crime that appears in the removal ground. To define a crime, we identify its elements. “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248. To illustrate the categorical approach and its use of elements, let’s consider whether an Iowa burglary conviction can be an aggravated felony as burglary. First, we must identify the federal generic definition of “burglary.” Example: The definition of aggravated felony includes conviction of “burglary” if a sentence of a year or more is imposed. INA § 101(a)(43)(G). How is “burglary” defined here? The Supreme Court held that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added) How do we identify the generic definition? First, look at the applicable removal ground and check for references to federal statutes or specific information. Some removal grounds refer directly to a federal statute, for example for the definition of a “crime of violence” at 18 USC § 16. Second, consider all of the general law terms, e.g., theft, attempt, child abuse. In most cases, courts create these definitions in case law. Secondary sources can save time in this inquiry. Norton Tooby’s books such as Aggravated Felonies, Crimes Involving Moral Turpitude, and Safe Havens summarize all decisions on these topics nationally, and the books are kept updated online. See www.nortontooby.com. See also national books such as Immigration Law and Crimes at http://legalsolutions.thomsonreuters.com/law-products/Treatises/Immigration-Law-and-Crimes2017-1-ed. Circuit-wide books, such as Defending Immigrants in the Ninth Circuit, www.ilrc.org/publications/defending-immigrants-ninth-circuit, go into great detail, and some Circuit Courts of Appeals publish outlines on the topic on their websites; see especially the Ninth Circuit’s outline. Some states have state-specific books, 40 online charts, 41 and articles. But 39

See, e.g., Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). For example, in California, besides Defending Immigrants in the Ninth Circuit (www.ilrc.org), see Tooby, Brady, California Criminal Defense of Immigrants (www.ceb.com), and in New York see Vargas, Representing Immigrant Defendants in New York (www.immigrantdefenseproject.org). 41 See, e.g., the California Chart and the Arizona Chart at www.ilrc.org/crimes. See several other state charts and a federal chart at www.nipnlg.org. Current employees of public defender and other indigent 40

Chapter 5

5-19

secondary sources are the starting, not ending point. Do further research to see if there are new developments. Advocates can litigate what should be the best generic definition. Note that federal courts and the BIA both create generic definitions. If these definitions conflict, federal courts have disagreed as to if or when they must give Chevron 42 deference to the BIA’s generic definition. In particular, because federal criminal courts (as a sentence enhancement) and the BIA (as a removal ground) both apply the definition of aggravated felony, INA § 101(a)(43), arguably federal courts need not defer on that issue. Federal courts never defer to the BIA if the generic definition is a federal statute, such as the definition of a crime of violence at 18 USC § 16. 2. Identify the minimum prosecuted conduct that violates the criminal statute43 Next, using state case law, jury instructions, or other materials, we identify the elements of the criminal statute of which the person was convicted, and the minimum conduct required to commit these elements. (In some courts this is called the “least adjudicated elements” or “least criminalized act” required for guilt.) Note that we are focusing solely on the minimum conduct required for guilt, and “ignoring the particular facts of the case.” Mathis, 136 S. Ct. at 2248. The Supreme Court cautioned that an immigrant may not simply imagine some possible minimum conduct for an offense, but must demonstrate a “realistic probability” that the conduct actually would be prosecuted under the criminal statute. 44 We can demonstrate a realistic probability of prosecution by producing published or unpublished decisions, or the person’s own case, where that conduct actually was prosecuted, or (at least in some circuits) showing that the specific conduct is set out in the language of the criminal statute. Example: Iowa Code § 702.12 prohibits in part a burglary of “building and structures, [or] land, water, or air vehicle” (emphasis added). The language of the statute as well as Iowa cases demonstrate that the statute is used to prosecute burglary of vehicles, not just burglary of buildings. Thus the minimum prosecuted conduct includes burglary of a vehicle. 3. Do the elements of the crime of conviction (the minimum conduct required for guilt) necessarily meet the elements of the generic definition? 45

Chapter 5

Here is where we compare the generic definition and the criminal statute. One way of articulating this test is, if the minimum conduct to violate the statute necessarily (in every case) comes within the generic definition, there is a categorical match. Another way is to ask, could someone be

criminal defense offices can access a library at www.defendingimmigrants.org, and current immigration non-profits can access a similar library at www.immigrationadvocates.org. 42 See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), discussing when federal courts must defer to an administrative agency’s interpretation of the statute it administers. For a basic overview of deference issues in immigration law see Brady, “Who Decides? Chevron, Brand X, and Mead Principles” at www.ilrc.org/files/documents/overview_of_chevron_mead__brand_x.pdf. 43 Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). 44 See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 193 (2007), cited in Moncrieffe, 133 S. Ct. at 1684. 45 See, e.g., Moncrieffe, supra.

5-20

Tab Position 1

Immigrant Legal Resource Center June 2017

convicted of the criminal statute who could not also be convicted of the generic definition? If not, there is no categorical match. Example: A person can be convicted of Iowa burglary for illegally entering a vehicle with intent to commit a crime. Could that person also be convicted of generic burglary?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

No. Generic burglary includes entry into a building or structure, but excludes entry into a vehicle. Because of this discrepancy, there is no categorical match between the Iowa burglary statute and the generic definition of burglary found in the removal ground. If there is no categorical match then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. If instead there is a categorical match, the removal ground will apply to every immigrant convicted under the statute. The client loses and our analysis is over. STEP 2: IS THE CRIMINAL STATUTE DIVISIBLE? 46 This step may appear complex, but stay with it until the example. The Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: 1. The statutory language must set out multiple discrete elements in the alternative (i.e., the statute must use the word “or”). 2. At least one, but not all, of the offenses created by these alternatives is a categorical match to (comes within) the generic definition. 3. In every case, a jury would have to agree unanimously between these alternatives in order to find the defendant guilty. This jury unanimity requirement what makes the statutory alternatives constitute “elements” rather than mere “means.” If any of these criteria are not met, the statutory alternatives are not elements and do not create different offenses. The statute is indivisible (not divisible). Example: Let’s use these three criteria to determine whether the Iowa burglary statute is divisible between burglary of a building and burglary of a vehicle. 1. Does Iowa Code § 702.12 set out multiple discrete elements in the alternative? Yes. It prohibits entering a building “or” a vehicle. 2. Is at least one but not all of these alternatives a categorical match to the generic definition? Yes. Burglary of a building meets the definition of generic burglary, but burglary of a vehicle does not. 3. Must a jury decide unanimously between “building” and “vehicle” in order to convict the defendant?

See, e.g., Mathis, 136 S.Ct. at 2248-2249; Descamps, 133 S.Ct. at 2281, 2283, 2288.

5-21

Chapter 5

46

No. In Mathis, supra, the Supreme Court considered whether the Iowa burglary statute met this requirement. It found that under Iowa law a jury could convict the defendant even if it split, with some jurors finding that a building was burgled and others finding a vehicle was. Therefore, “building” and “vehicle” are not alternative elements, creating multiple offenses, but are mere alternative means or examples of different ways to commit a single offense. Because it does not list elements in the alternative, the Iowa burglary statute is indivisible between a building or vehicle. The jury unanimity requirement is a new concept to many immigration advocates. In Mathis the Supreme Court provided some guidance for how one can determine whether a particular criminal statute carries a jury unanimity requirement. First, the Court suggests looking to case law. (However, case law and jury instructions frequently do not answer this question). Next, the Court suggests looking to the language of the statute. For example, if the statute sets out different punishments for different alternatives, the alternatives are elements and the statute is divisible. But “if a statutory list is drafted to offer ‘illustrative examples,’” then the alternatives are not elements and the statute is not divisible. Mathis, 136 S.Ct. at 2256. If the answer still is not clear, the Court condones taking a “peek” at the record. If the charging document or jury instructions lists the statutory alternatives in a single count (charge), this is very strong evidence that the statute is not divisible. The Court stated: Suppose, for example, that one count of an indictment and correlative jury instructions charge a defendant with burgling a ‘building, structure, or vehicle’—thus reiterating all the terms of Iowa’s law. That is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt. So too if those documents use a single umbrella term like ‘premises’ …” Conversely, an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime. Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy “Taylor’s demand for certainty” when determining whether a defendant was convicted of a generic offense. Shepard.

Chapter 5

Mathis, 136 S.Ct. at 2256-2257 (emphasis supplied). Thus, if your client’s charging document—or any defendant’s charging document for the same offense—sets out the various statutory alternatives in a single count, this is very strong evidence that the statute is not divisible. If your client’s charging document does not do this—for example, if it charges the person specifically with burgling a building, but not a vehicle—this is not necessarily the end of the inquiry. If some other defendants’ charging documents list the statutory alternatives for the same offense in a single count, that should count as strong evidence. (A particular criminal statute either is divisible or not; there is not a different answer for different defendants.) In that case, note also that the court admitted that record materials do not always “speak plainly” and that evidence that “Taylor’s demand for certainty” requires conclusive evidence that the defendant was convicted of a generic defense.

5-22

Tab Position 1

Immigrant Legal Resource Center June 2017

For further discussion of the jury unanimity requirement, see online Practice Advisories.47 If the statute is indivisible because it does not meet all of these criteria (as in the Iowa burglary example), the immigrant wins. The minimum conduct test controls, and we already found that the statute is overbroad under that test. When a criminal statute is both overbroad and indivisible, no one who is convicted under it comes within the removal ground. This is true for purposes of deportability, admissibility, and eligibility for relief, and regardless of facts in the record.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Example: In Mathis, the Supreme Court found that the Iowa burglary statute was not divisible between burglary of a building and a vehicle. Since it was not divisible, the minimum conduct test controlled. The court already had found that the minimum conduct to commit the offense (burglary of a vehicle) was not a categorical match with the generic definition, and that the statute therefore was overbroad. Because the statute was both overbroad and indivisible, the Court found that no conviction under it ever amounts to generic burglary. Note that this is true even if a defendant specifically pled guilty to burglary of a building. If the statute is not divisible, the adjudicator cannot rely on individual facts or record; she can consider only the minimum conduct prosecuted under the statute. In immigration proceedings the conviction does not trigger the removal ground regardless of whether the issue is deportability, inadmissibility, or eligibility for relief. No conviction of the Iowa statute is generic “burglary” under any circumstances. See, e.g., the Supreme Court’s holding in Moncrieffe, supra, which is that because the minimum conduct to commit the offense is not an aggravated felony, Mr. Moncrieffe is eligible to apply for LPR cancellation. If the statute is divisible because it meets all of the above criteria, we go on to Step 3. For example, if Iowa did have a rule that a jury must agree unanimously between burglary of a building and a vehicle, the statute would be divisible and we would go to Step 3. STEP 3: IF THE STATUTE IS DIVISIBLE, DO DOCUMENTS IN THE RECORD OF CONVICTION ESTABLISH OF WHICH CRIME THE DEFENDANT WAS CONVICTED (THE “MODIFIED CATEGORICAL APPROACH”)? 48 If and only if a statute is divisible according to the criteria in Step 2, the modified categorical approach applies. Here the immigration judge or officer may review certain documents from the client’s record of conviction, 49 with the sole purpose of identifying which offense (which of the alternative elements set out in the statute) the person was convicted of.

47

5-23

Chapter 5

See in particular “Mathis Practice Alert” (July 1, 2016) by National Immigration Project of the National Lawyers Guild and Immigrant Defense Project at www.nipnlg.org and “How to Use the Categorical Approach Now” by ILRC at www.ilrc.org/crimes. 48 See ibid. 49 Although the specifics vary across circuits, generally the reviewable record of conviction by plea consists of “the statutory the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 20 (2005). The reviewable record of a conviction by jury includes

See § 5.6 for discussion of the documents that are contained in the reviewable record of conviction, and for the burden of proving eligibility for relief when a statute is divisible. § 5.6

Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach

In § 5.5 we learned that a statute is divisible only if it meets the Supreme Court’s strict and recently clarified test. The statute must set out elements in the alternative (using “or”). A jury must be required to unanimously agree between the statutory alternatives in order to find guilt, in every case. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If and only if a statute is divisible under that standard, we proceed to Step 3, which often is referred to as the modified categorical approach. Under this approach, the adjudicator may examine a limited set of documents known as the reviewable “record of conviction,” to consult facts that were required for a finding of guilt, in order to determine which of the statutory alternatives was the basis for the conviction in the particular case. If this limited review of documents fails unequivocally to establish that the elements of the offense of conviction match those of the generic definition, then the conviction does not make the person deportable. A.

What Documents Can Be Consulted to Determine the Elements of the Offense of Conviction?

When an immigration adjudicator reviews a prior conviction that is a divisible statute under the modified categorical approach, she should only consult a limited number of documents to identify the elements of the offense of conviction. The Supreme Court has stated that the permissible documents for review in a conviction by plea are only “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). The Board of Immigration Appeals has long imposed similar restrictions on what an immigration judge can review. The reviewing authority may only consult information in the charging papers (indictment, complaint, information), the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and the sentence and transcript from sentence hearing. In immigration proceedings this group of permitted documents often is referred to as “the record of conviction.” 50

Chapter 5

Sources of information that are not allowed include: a prosecutor’s remarks during the hearing, police reports, probation or “pre-sentence” reports, statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration documents such as the charging document and jury instructions. Taylor v. United States, 495 U.S. 575, 602 (U.S.1990). 50 Matter of Pichardo, Int. Dec. 3275 (BIA 1996); Matter of Teixeira, Int. Dec. 3273 (BIA 1996); Matter of Madrigal-Calvoi, Int. Dec. 3274 (BIA 1996); Matter of Sweetser, Int. Dec. 3390 (BIA 1990); Matter of Short, 20 I&N Dec. 136 (BIA 1989); Matter of Mena, 17 I&N Dec. 38 (BIA 1979); Matter of Cassissi, 120 I&N Dec. 136 (BIA 1963); Matter of Y, 1 I&N Dec. 137 (BIA 1941).

5-24

Tab Position 1

Immigrant Legal Resource Center June 2017

judge), or information from a co-defendant’s case. 51 Thus, for example, where a wife was convicted of assault with intent to commit “any felony,” the immigration authorities could not look to her husband’s record of conviction to define the felony. 52 Courts may impose further limitations on the documents in a criminal court file that may be consulted by case law. For example, in the Fifth Circuit, an abstract of judgment cannot be consulted: “Because an ‘abstract of judgment is generated by the [convicting] court’s clerical staff, … it is not an ‘explicit factual finding by the trial judge to which the defendant assented,’ which the court may consider under Shepard.” 53

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Note, however, that if defense counsel stipulated to a document that provides a factual basis for the plea, such as the police report or probation report, the contents may well become part of the reviewable record. 54 B.

Burden of Proof with a Divisible Statute

As we discussed, if and only if the statute is divisible under the above standard, we proceed to the modified categorical approach. This is the only step in the categorical approach where the adjudicator is permitted to rely upon facts in the record of conviction, and where the immigrant might be required to produce his or her record. Who has the burden of producing the record of conviction, and persuading the adjudicator that the record shows deportability or is a bar to eligibility to relief? Burden of Proof: Deportability. Because ICE must prove deportability, ICE always has the burden of producing a reviewable record that shows that a conviction under a divisible statute was for a deportable offense. If the record is inconclusive as to which offense in a divisible statute was the subject of the conviction, ICE cannot meet its burden and the immigrant is not deportable. An inconclusive record might be, for example, evidence of a plea of guilty to a charge of committing “x or y,” or no record from the proceeding at all other than proof of conviction under the statute. Burden of Proof: Eligibility for Relief. Here authorities are split as to what happens if the record is inconclusive. The First, Second, and Fifth Circuit Courts of Appeals have held that an 51

5-25

Chapter 5

See, e.g., Taylor v. United States, supra; Matter of Short, 20 I&N Dec. 136 (BIA 1989) (co-defendant’s conviction is not included in reviewable record of conviction); Matter of Y, 1 I&N Dec. 137 (BIA 1941) (report of a probation officer is not included); Matter of Cassissi, 120 I&N Dec. 136 (BIA 1963) (statement of state’s attorney at sentencing is not included); Matter of Madrigal-Calvo, 21 I&N Dec.323 (BIA 1996) (transcript of plea and sentence hearing is included); Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996)(police report is not included); Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996)(admission by respondent in immigration court is not included). 52 Matter of Short, 20 I&N Dec. 136 (BIA 1989). 53 United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir.2005) (quoting Shepard v. United States, 544 U.S. 13, 15 (2005)). 54 See, e.g., Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA 2010) (“The signed guilty plea reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. While a police report, standing alone, is not part of the record of conviction, the respondent’s decision to incorporate the police report into the guilty plea made the report an explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent]’”) (internal quotations omitted); United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008).

inconclusive record is sufficient to meet the immigrant’s burden of proving that a conviction under a divisible statute does not bar eligibility for relief.55 The BIA and the Fourth, Ninth, and Tenth Circuits have held that an inconclusive record does not meet the immigrant’s burden, 56 and the Third and Seventh Circuits have agreed with this reasoning (although in cases that did not employ the full categorical approach). 57 Advocates are contesting some of the negative decisions based on Moncrieffe v. Holder, supra. 58 If you are litigating this issue, please contact the Immigrant Defense Project. 59 PRACTICE TIP: Carefully examine all past adverse precedent that is based on a finding that a statute is divisible. Many criminal statutes that in the past were held “divisible” and subject to the modified categorical approach, now should be found “indivisible” under Supreme Court rulings. Making the government strictly follow the rules governing the categorical and modified categorical analysis can turn a hopeless-looking case into a winner and is a key tool for advocates representing immigrants with criminal convictions. It is important to limit the immigration judge’s inquiry into the record of conviction. If you are not an accredited representative or attorney with expertise in this area, refer any case that might involve a “divisible statute” or complex criminal analysis to an expert. § 5.7

Exceptions to the Categorical Analysis

The categorical approach potentially applies any time the phrase “convicted of” is used in a federal statute. As the Supreme Court’s interpretation of the phrase “convicted of,” it is the default option for how to characterize the type of offense that was the subject of the conviction. There are several instances, however, where the categorical approach does not apply either wholly or in part. These include convictions in some contexts, and almost all factual and discretionary inquiries. A.

Removal Grounds Based on a Conviction

The categorical approach generally governs whether a conviction of a particular type of offense brings a consequence as a ground of inadmissibility or deportability (including as an aggravated felony). This includes when the removal ground functions as a bar to eligibility for relief, or statutory bar to establishing good moral character under INA § 101(f). For example, the categorical approach applies in determining whether a person is ineligible to apply for non-LPR

Chapter 5

55

Behre v. Gonzales, 464 F.3d 74 (1st Cir. 2006); Martinez v. Mukasey, 551 F.3d 113 (2nd Cir. 2008); Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005). 56 Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009); Salem v. Holder, 647 F.3d 111 (4th Cir. 2011); Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc); Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009). 57 See Syblis v. Atty. Gen., 763 F.3d 348 (3rd Cir. 2014) (addressing a moral turpitude determination under Matter of Silva Trevino I (see discussion of Silva-Trevino in Part IV of this article)), Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014) (addressing “relating to” a controlled substance) (petition for rehearing denied). 58 See a sample brief on the issue filed at the Ninth Circuit, at www.ilrc.org/brief-arguing-inconclusiverecord-conviction-establishes-eligibility-relief-because-moncrieffe. 59 Please contact Andrew Wachtenheim at [email protected].

5-26

Tab Position 1

Immigrant Legal Resource Center June 2017

cancellation because she was convicted of a deportable offense, or is unable to adjust status based on conviction of an inadmissible offense. There are some exceptions, however.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Crimes Involving Moral Turpitude Is No Longer an Exception. In 2008, the Attorney General held that the categorical approach does not fully apply to moral turpitude determinations. After several federal courts rejected that interpretation, she withdrew the decision in 2015. Now the BIA has affirmed that “the categorical and modified categorical approaches provide the proper framework for determining when a conviction is for a crime involving moral turpitude.” See Matter of Silva-Trevino, 26 I&N Dec. 826, 827 (BIA 2016), on remand from Matter of SilvaTrevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015), in which the Attorney General vacated Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec. 687 (A.G. 2008). “Ordinary Case” and Felony Crime of Violence Exception, 18 USC § 16(b). An offense that qualifies as a “crime of violence” under 18 USC § 16 is an aggravated felony if a sentence of a year or more is imposed, and is a deportable “crime of domestic violence” regardless of sentence if there is sufficient evidence that the victim and defendant shared a protected domestic relationship. 60 Under 18 USC 16(b), a felony conviction qualifies as a “crime of violence” if it involves a substantial risk that violence will be used in committing the offense. Some courts held that a felony meets this risk-based test if the “ordinary” case would involve such a risk, but have interpreted the “ordinary” case test in a way that conflicts with the minimum conduct test. In 2015 the Supreme Court held that a different federal definition of crime of violence, which uses language nearly identical to 18 USC § 16(b), is unconstitutionally vague. It further held that the “ordinary case” standard may no longer be used to determine if an offense is a crime of violence, and it overturned its own precedent setting out the “ordinary case” standard. Johnson v. United States, 135 S.Ct. 2551 (2015), overruling James v. United States, 550 U.S. 192 (2007) and Sykes v. United States, 564 U.S. 1 (2011). After that, federal courts differed as to whether 18 USC § 16(b) similarly is void for vagueness. In 2016, the Supreme Court accepted certiorari on this issue, reviewing Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). The decision will issue in 2017. See also Practice Advisories 61 (written before the Supreme Court opinion) for further discussion of the potential effect on crimes of violence under Johnson. Circumstance-Specific Exception: Fraud or Deceit in which Loss to Victim/s Exceeds $10,000. In Nijhawan v. Holder, 557 U.S. 29 (2009) the Supreme Court held that some aggravated felony definitions are made up of two parts: one or more “generic” offenses that are subject to the categorical approach, and one or more “circumstance-specific” factors that are not. Nijhawan concerned the aggravated felony of a crime of fraud or deceit in which the loss to the 60

5-27

Chapter 5

See INA § 101(a)(43)(F) (aggravated felony); INA § 237(a)(2)(E)(i) (domestic violence deportation ground). 61 See, e.g., Zota, “How Johnson v. United States May Help Your Crime of Violence Case” (July 6, 2015, NIPNLG) at www.nipnlg.org/legalresources/practice_advisories/pa_Johnson_and_COV_07-06-2015.pdf and see discussion of Johnson applied to offense examples in Brady, “Some Felonies Should No Longer Be Crimes of Violence under Johnson v. United States” at www.ilrc.org/resources/some-felonies-should-nolonger-be-crimes-of-violence-for-immigration-purposes-under-johnso.

victim/s exceeds $10,000. INA § 101(a)(43)(M). Parsing the statutory definition, the Court found that the requirement of loss exceeding $10,000 is circumstance-specific and need not be proved under the categorical approach, while fraud and deceit are generic offenses that are subject to the categorical approach. 62 This means that (a) the offense does not have to have a loss exceeding $10,000 as an element; instead the adjudicator will look at the loss in this particular case, and (b) the amount of loss can be showed by qualifying evidence from outside the record of conviction, as long as the evidence is tethered to the count of conviction. For more information on “circumstance specific” inquiries and Nijhawan, see Practice Advisories available online.63 Circumstance-Specific: Crime of Domestic Violence. A deportable “crime of domestic violence” is a crime of violence as defined in 18 USC § 16 that is committed against a victim with whom the defendant shares or shared a qualifying domestic relationship. INA § 237(a)(2)(E)(i). It is settled that the categorical approach is used to determine whether the conviction is of a crime of violence. The issue is what standard governs proof of the required domestic relationship. The BIA held that the domestic relationship is a “circumstance specific” factor that can be proved using any reliable evidence, including evidence from outside the record of conviction. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). In practice, this already was the rule in immigration proceedings in several circuits. The Ninth Circuit has employed a different rule: the domestic relationship does not need to be an element of the offense, but it can be proved only with conclusive evidence found in the reviewable record of conviction. See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). But advocates in the Ninth Circuit should be prepared for possible change; see Practice Advisory on Matter of H. Estrada online. 64 Circumstance-Specific: 30 Grams or Less of Marijuana. The deportation ground based on conviction of an offense relating to a controlled substance has an exception for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.” In Matter of Davey, 26 I&N 37 (BIA 2012) the BIA held that the amount of marijuana is proved in a circumstancespecific inquiry that can consider relevant evidence from outside the record. The BIA held that a person convicted of more than one statutory crime may be covered by the exception if all the person’s crimes were closely related to or connected with a single incident in which the person possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimes was inherently more serious than simple possession. In Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014), the BIA reaffirmed the rule in Davey and found it was not implicitly reversed by the Supreme Court in Moncrieffe v. Holder, supra. The BIA rejected the respondent’s argument that the minimum prosecuted conduct test must apply, and therefore because a statute prohibiting possession of “more than an ounce” (i.e., more than 28.5 grams) of marijuana, had been used to prosecuted less than 30 grams, the conviction was not a deportable controlled substance offense. Instead the BIA reaffirmed that the circumstance-specific test 62

See also Kawashima v. Holder, 132 S.Ct. 1166 (2012). See NIP/NLG and IDP, “The Impact of Nijhawan v. Holder on the Categorical Approach” (2009) at www.nipnlg.org and see ILRC, “Preliminary Advisory on Nijhawan v. Holder” (2009) at www.ilrc.org/crimes. 64 Brady, “Practice Advisory: Deportable Crime of Domestic Violence and Matter of H. Estrada,” at www.ilrc.org/advisory-deportable-crimes-domestic-violence-matter-h-estrada.

Chapter 5

63

5-28

Tab Position 1

Immigrant Legal Resource Center June 2017

applies to the amount of marijuana. It remanded to the immigration judge so that DHS could “proffer any evidence that is reliable and probative” to prove that the amount was over 30 grams, and the respondent would have a reasonable opportunity to challenge or rebut the evidence. Dominguez-Rodriguez, supra at 414. Note that some advocates assert that the 30 grams exception should be evaluated using the regular categorical approach, not the circumstance-specific approach. For more on the 30 grams or less of marijuana exception, see § 5.10.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Circumstance-Specific: Family Exception to the Alien Smuggling Aggravated Felony. A conviction under 8 USC § 1324(a)(1)(A) is an alien smuggling aggravated felony “except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual).” 65 The Ninth Circuit held that the family exception is a circumstance specific factor. United States v. Guzman-Mata, 579 F.3d 1065, 1070 (9th Cir. Ariz. 2009). Circumstance-Specific: Transportation for Prostitution if Committed for Commercial Gain. In Nijhawan, supra, the Supreme Court stated in dicta that “commercial gain” in the aggravated felony defined at INA § 101(a)(K)(ii) is a circumstance-specific factor. See also Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007). B.

Conduct-Based Removal Grounds

The categorical approach generally does not apply to fact-based inquiries, such as whether the person comes within a removal ground based on conduct rather than on a criminal conviction. Examples of conduct-based grounds are being inadmissible for engaging in prostitution, or being inadmissible or deportable as an abuser or addict. The Ninth Circuit has held that the categorical approach does apply if a criminal conviction is the only evidence of the conduct (and where the government has the burden of proof). It held that a returning permanent resident was not inadmissible 66 under the prostitution ground where (a) the criminal conviction was the only evidence, and (b) the conviction was for an offense that did not meet the generic definition of prostitution under the categorical approach, because the minimum conduct was a broadly defined “lewd act” for a fee, whereas the generic definition of prostitution is sexual intercourse for a fee. 67 C.

Purely Discretionary Decisions

The categorical approach does not apply in a purely discretionary decision, i.e., whether an applicant who meets statutory requirements, actually merits a grant of asylum, a waiver of inadmissibility, or a finding of good moral character as a matter of discretion. Thus the strict limits of the categorical approach might apply to a conviction during the “deportability” phase of a hearing, but the judge may consider underlying facts of the conviction, as well as any other relevant and probative evidence, in making a purely discretionary decision during the relief phase. 65

INA § 101(a)(43)(N), 8 USC § 1101(a)(43)(N). See discussion of burden of proof at Kepilino v. Gonzales, 454 F.3d 1057, 1059-61 (9th Cir. 2006). It appears that a conditional resident was returning from a trip abroad, so that the government had the burden of proving that she was seeking a new admission under INA § 101(a)(13)(C). 67 Kepilino v. Gonzales, supra. 66

Chapter 5

5-29

Example: Because his conviction is not an aggravated felony under the categorical approach, Mr. Moncrieffe may apply for LPR cancellation. When it comes to deciding whether to grant the cancellation application, however, the immigration judge may consider the underlying facts. Moncrieffe v. Holder, 136 S.Ct. at 1692 (noting that the judge can decide to “deny relief if he finds that the noncitizen is actually a member of one ‘of the world’s most dangerous drug cartels’” or “if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons”). D.

Conviction-Based Bars to Eligibility for Relief That Are Not Removal Grounds

A conviction that comes within a removal ground can act as a bar to eligibility for lawful status or relief. For example, a person is not eligible for LPR cancellation of removal if she is convicted of an aggravated felony, and is not eligible for naturalization if she is statutorily barred from establishing good moral character due to conviction of an inadmissible offense within the required period. 68 The categorical approach applies to removal grounds in the context of eligibility for relief. See, e.g., Moncrieffe v. Holder, supra, Matter of Chairez-Castrejon, supra (because the minimum prosecuted conduct to commit the offense was not an aggravated felony, the immigrant was permitted to apply for LPR cancellation). Other statutory or regulatory bars to eligibility for relief are not based on removal grounds. The BIA has held that the categorical approach does not wholly apply to at least some of these. This includes conviction of a particularly serious crime” (bar to asylum and withholding) 69 or conviction a violent or dangerous offense (potential bar to asylum, asylee or refugee adjustment waiver under INA § 209(c), a waiver under INA § 212(h), or potentially adjustment under INA § 245). 70 DHS indicated that the categorical approach would apply to the definition of at least one significant misdemeanor—a crime of domestic violence—in the context of enforcement priorities under the Obama Administration. 71 Besides making the person an enforcement priority, conviction of a significant misdemeanor acts as a bar to DACA, and the categorical approach has not been applied to crime of domestic violence in the DACA context. 72 The BIA held that the circumstance-specific test applies in determining whether a visa petitioner was convicted of a specified offense against a minor, which under the Adam Walsh Act can bar a U.S. citizen or permanent resident from immigrating a close relative.73

Chapter 5

68

See discussion of eligibility for relief and criminal bars at Immigration Relief Toolkit at www.ilrc.org/chart. 69 Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). 70 See “violent or dangerous” crime in cases such as Matter of Jean, 23 I&N Dec. 373 (A.G. 2002)(asylum) and the regulation governing waivers under INA § 212(h), 8 CFR 8 CFR § 1212.7(d). See discussion in Torres-Valdivias v. Holder, 766 F.3d 1106 (9th Cir. 2014), declining to apply the categorical approach to determining whether the offense is a violent or dangerous crime. 71 See USCIS, Frequently Asked Questions Relating to Executive Action on Immigration at www.ice.gov/immigrationAction/faqs, providing that the significant misdemeanor relating to domestic violence is defined by a “crime of domestic violence” in the domestic violence deportation ground. 72 For more on these issues, see materials www.ilrc.org/daca. 73 Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014).

5-30

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 5.8

Overview of Immigration Consequences of Crimes

Immigration practitioners should know that there are three categories of crimes that comprise the most common of the adverse immigration consequences that flow from criminal offenses for lawful permanent residents. 74 They are: • • •

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The grounds of deportability, at INA § 237(a)(2); The grounds of inadmissibility, at INA § 212(a)(2) 75 and The definition of aggravated felony, at INA § 101(a)(43), which serves as a ground of deportability and triggers additional penalties.

Criminal offenses may fall into either the grounds of inadmissibility, the grounds of deportability, or both. In addition, conviction of an aggravated felony is not only a ground of deportability, but a bar to eligibility for many forms of relief from removal. Immigration practitioners should be aware that a criminal offense can trigger more than one inadmissibility and/or deportability ground or bar to relief from removal. Thus, a single offense can cause numerous adverse consequences. To determine whether your client is subject to the grounds of inadmissibility or deportability, consult § 5.1 above and Chapter 1. A.

Comparing the Criminal Grounds of Deportability and Inadmissibility

The criminal grounds of inadmissibility and deportability are similar, but they are not identical. Thus, whether your client is being charged with a ground of inadmissibility or deportability can have a significant impact on his or her chances of prevailing in immigration court or obtaining an immigration benefit. Certain offenses will make a noncitizen deportable but not inadmissible, and vice versa. First, review these lists to see what grounds are identified in each. Criminal Grounds of Inadmissibility: 1. Admission or conviction of a crime involving moral turpitude (unless it comes within the petty offense or youthful offender exceptions) [INA § 212(a)(2)(A)(i)(I)] 76 2. Admission or conviction of a controlled substance (drug) offense [INA § 212(a)(2)(A)(i)(II)] 3. Where a DHS or consular official knows or has reason to believe the person is a controlled substance trafficker [INA § 212(a)(2)(C)] 4. Being a drug addict or abuse [a health inadmissibility ground, INA § 212(a)(1)] 5. Engaging in prostitution and commercialized vice [INA § 212(a)(2)(D)] 6. Conviction for two or more criminal convictions where the total aggregate sentence(s) is 5 years or more [INA § 212(a)(2)(B)] 7. Serious criminal activity where the person has asserted immunity from prosecution [INA § 212(a)(2)(E)]

5-31

Chapter 5

74 Other consequences beyond the three categories listed below can adversely affect persons applying for asylum (if convicted of a “particularly serious crime”), temporary protected status (if convicted of two misdemeanors or a felony), or a few other types of immigration status. 75 The crimes-based grounds of inadmissibility are also incorporated as bars to establishing “good moral character” under INA § 101(f). 76 Note the exceptions to this ground in INA § 212(a)(2)(A)(ii).

8. Foreign Government officials who have committed particularly severe violations of religious freedom [INA § 212(a)(2)(G)] 9. Significant traffickers in persons, including beneficiaries of trafficking, [INA § 212(a)(2)(H)] and 10. Money laundering [INA § 212(a)(2)(I)]. Criminal Grounds of Deportability: 1. Conviction for a crime involving moral turpitude that was committed within 5 years after the date of admission and that carries a potential sentence of a year or more [INA § 237(a)(2)(A)(i)] 2. Conviction, at any time after admission, of two or more crimes involving moral turpitude that did not arise out of “a single scheme of criminal misconduct” [INA § 237(a)(2)(A)(ii)] 3. Conviction of an aggravated felony any time after admission [INA § 237(a)(2)(A)(iii)] 4. Conviction for high speed flight as defined in 18 USC § 758 [INA § 237(a)(2)(A)(iv)] 5. Conviction of a controlled substance violation any time after admission [INA § 237(a)(2)(B)(i)] 6. A person who, at any time after admission, has been a drug abuser or addict (no conviction required) [INA § 237(a)(2)(B)(ii)] 7. Conviction of certain firearms offenses [INA § 237(a)(2)(C)] 8. Conviction for miscellaneous crimes relating to espionage, treason and sedition [INA § 237(a)(2)(D)] 9. Conviction for a crime of domestic violence, stalking or child abuse, child neglect, or child abandonment [INA § 237(a)(2)(E)(i)] 10. Persons whom a civil or criminal court judge has found to have violated a domestic violence protection orders [INA § 237(a)(2)(E)(ii)] Compare the two lists to see what offenses deportability and inadmissibility have in common, and what are different. The below chart may be helpful. Inadmissibility, INA § 212(a)(2)

Deportability, INA § 237(a)(2)

Conviction or admission of an offense relating to a controlled substance

Conviction after admission of an offense relating to a controlled substance, except arising out of a single incident that involves 30 grams or less marijuana

Being a current drug abuser or addict (see INA 212(a)(1))

Drug abuser or addict at any time since admission

Immigration authorities have “reason to believe” the person participated in drug trafficking, and certain relatives who benefited

Chapter 5

Conviction or admission of one crime involving Conviction of one CIMT committed within five years moral turpitude (CIMT), unless it comes within after admission, if it has a potential sentence of one year the petty offense or youthful offender or more exceptions, or is a purely political offense Conviction of two CIMTs after admission, that don’t arise from a single scheme of criminal misconduct

5-32

Tab Position 1

Immigrant Legal Resource Center June 2017

Is coming to U.S. to engage in prostitution or commercialized vice or has engaged in prostitution within 10 years prior to application

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Conviction of two or more offenses with sentence of 5 years or more imposed Foreign officials who committed severe violations of religious freedom Immigration authorities have “reason to believe” the person participated in trafficking in persons and certain relatives who benefited Immigration authorities have “reason to believe” the person participated in money laundering Conviction of aggravated felony after admission Conviction of a crime of domestic violence, stalking, or a crime of child abuse, or a civil or criminal court finding of violation of certain portions of a DV protective order. Conviction or finding must be after admission and after 9/30/96. Conviction of a firearms offense after admission Conviction of certain federal crimes: high speed chase near the border; importing noncitizens for commercialized vice; and miscellaneous crimes relating to espionage, treason and sedition

Some of the differences between the two lists are especially worth noting. First, there is no inadmissibility ground relating to domestic violence, child abuse, or firearms. If a lawful permanent resident is subject to the deportability grounds, however, and has a conviction for any offense that comes within these grounds, no matter how minor, that person is deportable. In contrast, if a lawful permanent resident is subject to the inadmissibility grounds, the offense may not have any adverse immigration consequences. 77 For example, possession of an unregistered firearm is a deportable offense under INA § 237(a)(2)(C), but is not an offense that comes within the grounds of inadmissibility. Therefore, if your client were subject to the grounds of inadmissibility, this offense would not jeopardize his permanent residence. (Note, however, that if the firearms offense also is a crime involving moral turpitude—for example, assault with a firearm—it could trigger inadmissibility under the moral turpitude grounds). Second, an aggravated felony is not a ground of deportability but is not a per se ground of inadmissibility. There is no ground of inadmissibility for an aggravated felony. However, in many cases an aggravated felony will trigger other grounds of inadmissibility, as a crime involving moral turpitude or as drug related offense. In limited situations, where the conviction

However, a returning LPR could be found admissible (therefore not making a new admission upon return to the US from abroad) then charged with a deportation ground once inside the U.S.

5-33

Chapter 5

77

does not come within the controlled substance or perhaps moral turpitude grounds, a person with an aggravated felony conviction may be able to avoid removal by adjusting status as an immediate relative. For instance, a permanent resident facing the deportation grounds could readjust to permanent resident anew if they have a relative that can petition for them. 78 Third, different rules govern when a moral turpitude conviction makes a noncitizen inadmissible versus deportable. For example, conviction of a single crime involving moral turpitude that falls within the petty offense exception would not make someone inadmissible.79 However, that same offense, if committed within five years of the person’s admission, would make him deportable. Check the person’s entire criminal record against the formulae discussed in § 5.11 below. Fourth, certain “conduct-based” grounds make a noncitizen inadmissible, but not deportable. These include engaging in prostitution, formally admitting commission of an inadmissible drug or moral turpitude offense, and where the government has “reason to believe” (but no conviction) that the person aided in drug trafficking. An in-depth discussion of each of the criminal grounds of inadmissibility and deportability is beyond the scope of this manual. 80 However, we will look at the most common grounds of inadmissibility and deportability: crimes involving moral turpitude, controlled substance offenses, domestic violence/protection order offenses, prostitution, multiple criminal convictions, failure to register as a sex offender, and aggravated felonies. B.

Aggravated Felonies

Conviction of an aggravated felony is a ground of deportability, but it is worth discussing separately because it triggers many other terrible consequences for noncitizens, including lawful permanent residents. With a few important exceptions, conviction of an aggravated felony ensures deportation, bars eligibility to obtain new lawful status, and blocks any hope of a waiver or defense. In contrast, a person who is “merely” inadmissible or deportable under other grounds still might be able to apply for a discretionary waiver, application or defense that will let him or her continue in status. In addition, a noncitizen who is convicted of an aggravated felony and then deported (“removed”) is subject to a greatly enhanced federal sentence if she attempts to re-enter the U.S. illegally. See 18 USC § 1326(b)(2). Aggravated felonies are discussed in detail in the next section. § 5.9 A.

Aggravated Felonies

Overview and Penalties

A person convicted of an aggravated felony after admission is deportable under INA § 237(a)(2)(A)(iii). It is important to note that although there is no aggravated felony ground of inadmissibility, a person who is both convicted of an aggravated felony and removed is permanently inadmissible under INA § 212(a)(9)(A)(i). 78

See § 5.2. See INA § 212(a)(2)(A)(ii)(II). 80 For a detailed analysis of these grounds, see ILRC’s publication Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (www.ilrc.org) and updates.

Chapter 5

79

5-34

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Definition of Aggravated Felony

Aggravated felonies are defined at INA § 101(a)(43), which is a list of dozens of common-law terms and references to federal statutes. It covers conviction for a broad range of conduct, including some that might not appear to some to be especially egregious, such as selling $10 worth of marijuana, or “smuggling” one’s baby sister across the border illegally. 81 Federal and state offenses can be aggravated felonies, as can foreign offenses unless the resulting imprisonment ended more than 15 years earlier. Notably, many misdemeanors are aggravated “felonies.” See below for an alphabetical list of the crimes defined as aggravated felonies under INA § 101(a)(43).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Due to the extensive nature of this topic, a discussion of each individual aggravated felony is beyond the scope of this manual. For more information, consult books such as ILRC’s Defending Immigrants in the Ninth Circuit (www.ilrc.org); Tooby, Aggravated Felonies (www.nortontooby.com); and the National Immigration Project of the National Lawyers Guild, Immigration Law and Crimes (http://legalsolutions.thomsonreuters.com). Where a federal criminal statute is cited in the aggravated felony definition, a state offense is an aggravated felony only if all of the substantive elements of the state offense are included in the federal offense. But the fact that the state offense lacks a federal jurisdictional element—e.g., crossing state lines, or affecting interstate commerce—generally will not prevent a state offense from being an aggravated felony. See Luna-Torres v. Lynch, 136 S.Ct. 1619 (2016) (state arson offense that matches the elements of 18 USC § 844(i) but for the federal jurisdictional element, is an aggravated felony as an offense “described in” the federal statute). Advocates who want to investigate defenses after Luna-Torres should see Practice Advisory available online. 82 Where the aggravated felony is identified by general or common law terms that have no set definition—such as theft, burglary, or sexual abuse of a minor—courts will consider various potential definitions and then choose a contemporary, “generic” definition setting out the elements of the offense. To be an aggravated felony, a state offense must be entirely covered by the generic definition. See discussion of the categorical approach at §§ 5.5–5.7. Effective Date. Congress created the aggravated felony category in 1998, and continued to expand the definition frequently up until the September 30, 1996 enactment of IIRIRA. For most purposes, the aggravated felony penalty applies regardless of when the conviction occurred, but some applications have an effective date. For example, conviction of an aggravated felony is a permanent bar to establishing good moral character only if the conviction occurred on or after November 29, 1990. If your client is being harmed by a conviction that pre-dates September 30, 1996, check technical manuals and see regulations, to make sure that there is no argument based on effective date (and of course, consider § 212(c) relief, discussed in Chapter 11).

81

See INA §§ 101(a)(43)(B) and (N). See National Immigration Project of the National Lawyers Guild and Immigrant Defense Project, “Practice Alert: Luna-Torres v. Lynch” (May 20, 2016) at www.nipnlg.org/PDFs/practitioners/practice_advisories/crim/2016_20May_luna-torres-alert.pdf. 82

Chapter 5

5-35

1. List of aggravated felonies Every offense should be examined closely to determine whether it is an aggravated felony or not. Some offenses are aggravated felonies only if a sentence of a year or more has been imposed, while others are aggravated felonies regardless of the sentence. Even misdemeanor offenses can be held to be aggravated felonies. See, e.g., Matter of Small, 23 I&N Dec. 448 (BIA 2002) (sexual abuse of a minor). It is important to do a close analysis to determine whether an offense is an aggravated felony, because there may be a surprising defense. The categorical analysis discussed at § 5.5 above is a great resource for arguing that many serious offenses that appear to be aggravated felonies are actually not. The following is a list of the offenses referenced in INA § 101(a)(43), arranged in alphabetical order. The capital letter following the offense refers to the subsection of INA § 101(a)(43) where the offense appears. • • • • • • • • • • • • • •

Chapter 5

• • • • •

alien smuggling: smuggling, harboring, or transporting of aliens except for a first offense in which the person smuggled was the parent, spouse or child (N) attempt to commit any aggravated felony (U) bribery of a witness: if the term of imprisonment is at least one year (S) burglary: if the term of imprisonment is at least one year (G) child pornography (I) commercial bribery: if the term of imprisonment is at least one year (R) conspiracy to commit any aggravated felony (U) counterfeiting: if the term of imprisonment is at least one year (R) crime of violence as defined under 18 USC 16 resulting in a term of at least one year imprisonment, if it was not a “purely political offense” (F) destructive devices: trafficking in destructive devices such as bombs or grenades (C) drug offenses: any offense generally considered to be “drug trafficking,” plus cited federal drug offenses and analogous felony state offenses (B) failure to appear: to serve a sentence if the underlying offense is punishable by a term of 5 years, or to face charges if the underlying sentence is punishable by 2 years (Q and T) false documents: using or creating false documents, if the term of imprisonment is at least twelve months, except for the first offense which was committed for the purpose of aiding the person’s spouse, child or parent (P) firearms: trafficking in firearms, plus several federal crimes relating to firearms and state analogues (C) forgery: if the term of imprisonment is at least one year (R) fraud or deceit offense if the loss to the victim exceeds $10,000 (M) illegal re-entry after deportation or removal for conviction of an aggravated felony (O) money laundering: money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if the amount exceeds $10,000 (D) murder (A)

5-36

Tab Position 1

Immigrant Legal Resource Center June 2017

• • • • • • • • • • • • • • • •

national defense: offenses relating to the national defense, such as gathering or transmitting national defense information or disclosure of classified information (L)(i) obstruction of justice: if the term of imprisonment is at least one year (S) perjury or subornation of perjury: if the term of imprisonment is at least one year (S) prostitution: offenses such as running a prostitution business (K) ransom demand: offense relating to the demand for or receipt of ransom (H) rape (A) receipt of stolen property if the term of imprisonment is at least one year (G) revealing identity of undercover agent (L)(ii) RICO 83 offenses: if the offense is punishable with a one-year sentence (J) sabotage (L)(i) sexual abuse of a minor (A) slavery: offenses relating to peonage, slavery and involuntary servitude (K)(iii) tax evasion: if the loss to the government exceeds $10,000 (M) theft: if the term of imprisonment is at least one year (G) trafficking in vehicles: with altered identification numbers if the term of imprisonment is at least one year (R) treason: federal offenses relating to national defense, treason (L)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

2. Penalties for conviction: Barred from immigration applications Conviction of an aggravated felony brings severe punishments. The conviction triggers deportability and bars eligibility for many kinds of relief and waivers that would stop deportation. In contrast, a noncitizen who is “merely” deportable or inadmissible might qualify for a waiver or application that would preserve current lawful status or permit the person to obtain new status. People with aggravated felony convictions are also subject to mandatory detention during removal proceedings under INA § 236(c). Example: Marco has been a permanent resident for 20 years and has six U.S. citizen children. He is convicted of an aggravated felony, possession for sale of marijuana. The aggravated felony conviction bars him from applying for the basic waiver “cancellation of removal” for long-time permanent residents. There are some immigration remedies for persons convicted of an aggravated felony, but they are limited. The following are some important options. Persons convicted of an aggravated felony are barred from applying for asylum, but if the offense is not also a “particularly serious crime” they can apply for withholding of removal under INA § 241(b)(3) (also called restriction on removal), if they can show a clear probability that they will persecuted in their home countries.

•

Persons convicted of an aggravated felony can apply for relief under the Convention Against Torture (CAT) if they can show they are in danger of being tortured in their home countries.

RICO stands for “racketeer influenced corrupt organization.” See 18 USC § 1962.

5-37

Chapter 5

83

•

•

Persons whose aggravated felonies do not involve controlled substances might be able to re-adjust status (become a permanent resident again) through an immediate U.S. citizen relative with a waiver under INA § 212(h). Note: a person whose aggravated felony does not trigger inadmissibility may be able to re-adjust their status without a § 212(h) waiver.

•

An aggravated felony conviction is not an absolute bar to eligibility for the “T” visa for persons who are victims of sex trafficking, forced labor, or other trafficking offenses. See INA § 101(a)(15)(T).

•

An aggravated felony conviction is not an absolute bar to eligibility for the “U” visa for persons who are victims of a certain crimes and who cooperate with authorities in prosecuting the crime, although in practice it is difficult to get an approval with an aggravated felony conviction. See INA § 101(a)(15)(U).

•

Permanent residents who pled guilty to one or more aggravated felonies before April 24, 1996 or in some cases April 1, 1997 might be able to obtain a waiver of those offenses under the former § 212(c) relief. See Chapter 11. 3. Penalties for conviction: Federal offense of illegal re-entry

A noncitizen who is convicted of an aggravated felony, deported or removed, and then returns to the U.S. without permission faces a tough federal prison sentence up to 20 years under 8 USC § 1326(b)(2). This applies even to persons whose aggravated felonies were relatively minor offenses, such as possession for sale of marijuana. Note, that persons convicted of certain felonies—whether or not they are aggravated felonies— also face severe sentence enhancements for illegal re-entry. See 8 USC § 1326(b)(1). § 5.10 Inadmissibility and Deportability Based on Drug Offenses Drug offenses are treated very seriously under immigration law and have numerous and harsh consequences. Before you concede that your client is inadmissible or deportable for a controlled substance offense, you should be aware that there are several key strategies to argue that an offense is not a controlled substance offense for immigration purposes. These key strategies are summarized in Subsection C below. The controlled substance inadmissibility and deportability grounds are triggered only by substances that are listed in federal drug schedules. If a state offense reaches substances not on the federal schedules, there may be a defense. See Mellouli v. Lynch, 135 S. Ct. 1980 (2015) and Subsection D, below. A.

Overview of Penalties for Drug Offenses

Chapter 5

1. Aggravated felony Under INA § 101(a)(43)(B), a controlled substance offense can be an aggravated felony in either of two ways: (1) if it is an offense that meets the general definition of trafficking, such as sale or possession for sale, or (2) if it is a state offense that is analogous to certain federal felony drug offenses, even those that do not involve trafficking, such as cultivation, manufacture, or some prescription offenses. There are special rules governing whether a simple possession offense constitutes an aggravated felony. Case law has established that a state possession conviction with

5-38

Tab Position 1

Immigrant Legal Resource Center June 2017

no prior drug convictions is not an aggravated felony, unless it is possession of flunitrazepam. Lopez v. Gonzales, 549 U.S. 47 (2006). If someone with a prior conviction for a controlled substance offense is subsequently convicted of a state possession conviction, that subsequent conviction will not be an aggravated felony unless the record of conviction contains a specific finding that the person has a prior drug conviction and is therefore being convicted as a recidivist. 84

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

2. Deportability grounds a. Conviction of an offense relating to controlled substances There are two grounds of deportability that refer specifically to controlled substances. The first is conviction any time after admission of any offense “relating to” a (federally-defined) controlled substance, or attempt or conspiracy to commit such an offense under INA § 237(a)(2)(B)(i). Note that for this ground, a conviction is necessary. Therefore, juvenile findings, and other dispositions that do not meet the definition of a conviction in INA § 101(a)(48)(A) do not trigger this ground. The conviction also must have occurred after admission. Therefore, pre-admission convictions do not trigger this ground, though they might have made the person inadmissible. This deportability ground includes “any state, federal, or foreign law or regulation relating to controlled substances.” Even minor offenses such as being under the influence of drugs, or possessing a small amount of drugs, will make the person deportable. The only exception is someone who has one or more convictions arising from a single incident involving simple possession of 30 grams or less of marijuana, or some closely related offenses such as being under the influence of, or possessing paraphernalia for use with, a small amount of marijuana or hashish. See further discussion of this exception at Subsection C.3, below. b. Drug abuser or addict at any time after admission A noncitizen is deportable if she was a drug addict or abuser at any time after admission into the United States, even if she has overcome the problem. INA § 237(a)(2)(B)(ii). This ground of deportability does not require a conviction. The government must prove deportability by clear and convincing evidence. INA § 240(c)(3). The standard for determining who is a drug abuser or addict is not defined in INA § 237(a)(2)(B)(ii), although it’s possible DHS will use the same standard as the drug abuser or addict health ground of inadmissibility in INA § 212(a)(1)(A)(iv). This statute leaves it to Health and Human Services (HHS) to define drug addict or abuser. An HHS agency, the Center for Disease Control (CDC), has created a definition, which can be found in “Technical Instructions for Medical Examinations of Aliens,” by The Center for Disease Control at www.cdc.gov and 42 CFR §§ 34.2(g) and (h). Drug addiction in the interim Public Health Service (PHS) regulations is defined to include the non-medical use of a controlled substance “which has resulted in physical or psychological dependence.” Drug addict is defined under 42 USC § 201(k) as a person who has “lost the power 84

5-39

Chapter 5

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010); see also U.S. v. Munoz-Camarena, 631 F.3d 1028, 1029-30 (9th Cir. 2011) (per curiam) (applying Carachuri-Rosendo to the illegal reentry sentencing context).

of self-control” over his or her addiction, or whose habitual drug use poses a threat to public morals, health, safety, or welfare. A “mere user” is not an addict, 85 but conviction for use or a finding of drug abuse carry separate immigration penalties. In practice, however, some consular offices have used an older definition, which is that if the person engaged in more than mere onetime experimentation in the last three years, she is inadmissible for drug abuse. A permanent resident facing removal for drug addiction or abuse should challenge either the regulation or a finding in the case. Noncitizens who contest removability can submit evidence from an independent physician on the issue of drug abuse or addiction. 86 A permanent resident can seek a waiver of deportability for this ground under LPR cancellation of removal. Note that a finding of drug addiction or abuse does not “stop the clock” for establishing seven years of continuous residence after admission for purposes of LPR cancellation of removal, because it is not an offense listed in INA § 212(a)(2). 87 3. Inadmissibility grounds a. Convicted of, or admits committing, an offense relating to a federallydefined controlled substance (including state-legalized marijuana) A noncitizen who admits committing, or is convicted of, an offense “relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC § 802)” or attempt or conspiracy to commit such an offense is inadmissible under INA § 212(a)(2)(A)(i)(II). If the person is inadmissible under this ground, he is not eligible for a waiver of inadmissibility under INA § 212(h) unless the conviction(s) or the conduct admitted to relates to a single incident involving possession of 30 grams or less of marijuana, or the equivalent amount of hashish. 88 In any other case, the person is inadmissible and cannot apply for re-adjustment of status based on a family visa petition as a defense to removal. Some other forms of relief might be available, however, such as LPR Cancellation; see Chapter 11. i.

Admitting commission of a controlled substance offense

This ground of inadmissibility applies even if the person was never charged or convicted of the crime. Warn your clients that if they admit to drug use they can be found inadmissible, even without an arrest or conviction. There must be a formal admission to trigger this ground, where the immigration official states all of the elements of the offense. (However, the Ninth Circuit upheld an inadmissibility charge based on an immigrant’s statements at a consular medical appointment.) 89 In addition, if charges on the conduct were brought before a criminal court and

Chapter 5

85

See In re KCB, 6 I&N Dec. 374 (BIA 1954) (holding that conviction for use or under the influence does not necessarily show addiction). 86 See Matter of FSC, 8 I&N Dec. 108 (BIA 1958) (a noncitizen’s admission of addiction was held to be not sufficient when contradicted by two physician’s opinions and repudiated by the alien). 87 See Chapter 4, § 4.4, Subsection B. Drug addiction or abuse is listed at IAN § 212(a)(1), not (2). 88 Thirty grams or less of marijuana has been defined to include being under the influence of marijuana, and possession or being under the influence of hashish. 89 Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

5-40

Tab Position 1

Immigrant Legal Resource Center June 2017

resulted in less than a conviction, the person cannot be held inadmissible for admitting the conduct, either due to a guilty plea or due to an admission to the immigration official. 90 See further discussion of requirements for admitting conduct at § 5.11, below.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

If a DHS officer or any other person asks a client if he or she has ever committed a drug offense, the client should stop the interview and ask to speak with a lawyer. Be sure to warn them about the possible consequence of admitting drug use at a visa medical appointment. Warn clients that any admission of a crime might be used against them. ii.

Medical and legalized marijuana

Ironically, noncitizens who live in states that make it legal to possess and use marijuana for medical and/or recreational purposes face an increased immigration risk. They may reasonably believe that because possession of marijuana is permitted under state law, it is safe to possess and use it, and to admit this conduct to an immigration official. This is not safe. Possession of a small amount of marijuana still is a federal offense—even if it is legal under state law. Admitting this conduct to an immigration official can make the person inadmissible under the controlled substance ground. Further, while in the past immigration officials rarely charged inadmissibility based on the person’s admission of a drug offense absent a conviction, the situation may be changing. At least in Washington State, there are several recent reports of immigration officials asking specific questions about marijuana use, including use while such conduct was legal under state law. Again, the inadmissibility finding is not based on the fact that the person committed a federal drug offense, but on the fact that the person formally admitted to an immigration official that she had committed such an offense. How can conduct that is legal under state law be an immigration problem? To be inadmissible, a noncitizen must formally admit to conduct that is considered a crime in the jurisdiction where the act was committed. If a state legalizes possession of marijuana, the conduct is not a crime under state jurisdiction. The problem is that possession of marijuana remains a crime under federal law—even if the conduct takes place in a private home and not on federal property. 91 In a recent case, USCIS officials in Seattle denied a naturalization application where the permanent resident admitted to legal use of marijuana. The denial was based on the applicant’s failure to establish good moral character under 8 CFR § 316.10(b)(2)(iv), INA 101§ (f). Advocates should warn all non-citizens about this risk. Best practices for all non-citizens include the following: •

Do not use recreational marijuana until you are a U.S. citizen, even if that conduct is legal under the law of your state. Do not use medical marijuana unless there a real medical need and no good alternative treatment. In that case, consult with a legal adviser. Do not work in a marijuana shop.

90

5-41

Chapter 5

See, e.g., Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968) Matter of Seda, 17 I&N Dec. 550 (BIA 1980). 91 See Gonzales v. Raich, 545 U.S. 1 (2005).

•

Never carry marijuana, a medical marijuana card, paraphernalia, or marijuana “accessories” like stickers or T-shirts. Don’t have photos or text concerning you and marijuana use on your phone, on social media, or anywhere else. (In fact, it is good practice not to bring one’s regular phone, which contains contact information, photos, and other data, when traveling outside the U.S. Consider bringing a substitute phone.) If discovered, this could prompt aggressive questioning.

•

If an immigration official asks you if you have possessed marijuana, decline to answer. Stop the interview and say you want to speak to an attorney. Try to stay strong and remain silent, because once you admit to marijuana use, that bell cannot be un-rung.

•

Traveling outside the U.S. after using marijuana carries risks. Permanent residents may be able to re-enter by simply declining to answer questions (see below), but it still is a risk. An admission of possessing 30 grams or less of marijuana on a single occasion should be waivable under INA § 212(h), just as a conviction would.

Unfortunately, many noncitizens already have possessed and used marijuana in the belief that this would not create any immigration problems because it was legal under state law. Admitting to an immigration official that they used marijuana can harm a noncitizen in at least four contexts: return from a trip abroad; application for adjustment of status as a defense to removal; application for LPR cancellation; and application for naturalization. Return from a Trip Abroad. A permanent resident who is returning from a trip abroad is in a relatively strong position. If the person declines to answer any questions about marijuana use, her silence should protect her. This is because a returning permanent resident is deemed not to be seeking a new admission, and thus not to be subject to grounds of inadmissibility, unless officials can prove that she comes within an exception listed at INA § 101(a)(13)(C). One of these exceptions is that the resident has “committed an offense identified in” INA § 212(a)(2). INA § 101(a)(13)(C)(v). To come within this exception, the permanent resident must have been convicted of, or formally admitted committing, a qualifying offense 92 such as possession of marijuana. If the permanent resident was not convicted, and if she declines to admit to the conduct, authorities cannot prove that she comes within the exception and is seeking admission, and she should be permitted to enter. But if instead the permanent resident formally admits to a border official that she has possessed marijuana, authorities may charge that she comes within § 101(a)(13)(C)(v), that she is inadmissible under the controlled substance ground, and that she must be granted some waiver of the inadmissibility ground—such as under LPR cancellation or § 212(h), if she is eligible—in order to be admitted into the United States. A nonpermanent resident at the border has the burden of showing that she is admissible. If she refuses to answer questions about marijuana, she can be turned away. Adjustment of Status on a Family Petition. An applicant for adjustment of status as a defense to removal is in a more difficult situation. A refusal to answer questions about marijuana may

Chapter 5

92

See, e.g., Vartelas v. Holder, 132 S. Ct. 1479, 1492, n. 11 (2012) (“The entire § 1101(a)(13)(C)(v) phrase ‘committed an offense identified in section 1182(a)(2),’ on straightforward reading, appears to advert to a lawful permanent resident who has been convicted of an offense under § 1182(a)(2) (or admits to one).”)

5-42

Tab Position 1

Immigrant Legal Resource Center June 2017

result in the denial of the application for failure to prosecute. A response that admits possessing marijuana will likely result in a permanent determination of inadmissibility with no option for adjustment. But if the only admitted conduct is a single incident involving possession of 30 grams or less of marijuana, the person may be eligible to apply for a § 212(h) waiver.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Other Bases for Adjustment. Marijuana may not be as serious a problem with other types of adjustment. For example, an applicant for adjustment as an asylee or refugee could apply for a waiver of inadmissibility under INA § 209(c), and a person adjusting pursuant to a T or U visa also could apply for waiver. Non-LPR Cancellation. An applicant for non-LPR cancellation has the burden of establishing that he is admissible. If he formally admits to having used marijuana and it does not come within one of the exceptions (it occurred when he was a juvenile, or charges were brought before criminal court and resulted in less than a conviction), he may be found inadmissible and barred from eligibility for cancellation. LPR Cancellation. A permanent resident who applies for LPR cancellation should be advised that admitting having possessed marijuana in the past may affect the accrual of the required seven years of residence. To qualify for LPR cancellation, a permanent resident must have resided in the U.S. for seven years, starting from the date of first admission, and ending (in some cases) 93 “when the alien has committed an offense referred to in [INA § 212(a)(2)] that renders the alien inadmissible to the United States under [INA § 212(a)(2)] or removable from the United States under [INA § 237(a)(2) or (a)(4)].” In other words, under this section the clock stops if the offense meets two requirements. First, it must be referred to in § 212(a)(2). Second, it also must make the person inadmissible or deportable under the crimes or terrorism grounds. See INA § 240A(d)(1) and see discussion of the residence requirement for cancellation in Chapter 11. Immigration judges have ruled differently as to how admission of prior conduct involving marijuana affects the seven-year clock. In removal proceedings in Seattle, a person who was deportable based on a conviction of a non-marijuana offense was held ineligible for LPR cancellation because he admitted that he had possessed marijuana several years earlier, at a time before he had accrued the seven years. The IJ held that this long-ago conduct stopped the clock under § 240A(d)(1), because he admitted to a federal drug offense that is referred to in INA § 212(a)(2), which made him inadmissible under § 212(a)(2). 94 In removal proceedings in Chicago, however, advocates successfully argued that if the person is charged with deportability in removal proceedings, then under INA § 240A(d)(1) the seven years stops only if she commits an offense that is referred to in § 212(a)(2) and that also makes her deportable, as opposed to inadmissible, under the crimes grounds. 95 The respondent was charged

93

5-43

Chapter 5

The seven years also cease to accrue when the person is served a Notice to Appear. See INA § 240A(d)(1). 94 Thanks to Matt Adams for this information. The court held that as long as the offense is referred to in INA 212(a)(2), the seven-year clock will stop regardless of whether it causes inadmissibility or deportability. In contrast, see analysis in next footnote. 95 Thanks to Maria Baldini Potermin for this information. See INA 237(a)(2)(B)(i). Therefore, admitting possessing marijuana is an offense referred to in § 212(a)(2), but it does not make the person deportable

with being deportable for a non-marijuana offense. The government asserted that an earlier single conviction for possessing 30 grams or less of marijuana stopped the seven-year clock. The IJ disagreed, holding that while the marijuana conviction was referred to in § 212(a)(2), it did not also make the person deportable under § 237(a)(2) (due to the automatic exception in the deportation ground for conviction relating to a single incident involving a small amount of marijuana); it only made him inadmissible under § 212(a)(2). Therefore it did not stop the clock under § 240A(d)(1). This argument also works where the person only admitted marijuana use, and is charged with deportability (for some other offense). Naturalization. A permanent resident who applies for naturalization must establish a certain period of good moral character. Being inadmissible under INA § 212(a)(2) is a statutory bar to establishing good moral character if it occurred during the period for which good moral character must be shown. INA § 101(f)(3). As stated above, Seattle officials denied a naturalization application where the permanent resident admitted to legal use of marijuana, where the incident had not been brought before a court. The remedy was to start the period of good moral character over and not use marijuana during it, and then re-apply. A waiver of inadmissibility may be available if the admitted conduct was a single incident involving use, possession, or possession of paraphernalia relating to 30 grams or less of marijuana. See INA § 212(h), 8 USC § 1182(h). b. Current drug abuser or addict Conduct can cause inadmissibility even absent a conviction. A noncitizen who is a “current” drug addict or abuser is inadmissible. INA § 212(a)(1)(A)(iv). “Current” drug abuse or addiction may be held to include any use in the past three years. See further discussion in Subsection A.2.b, above. c. Reason to believe the person engaged or assisted in drug trafficking A noncitizen is inadmissible if immigration authorities have probative and substantial “reason to believe” that she ever has been or assisted a drug trafficker in trafficking activities, or if she is the spouse or child of a trafficker who benefited from the trafficking within the last five years. INA § 212(a)(2)(C). A conviction is not necessary, but a conviction or substantial underlying evidence showing sale or offer to sell will alert immigration officials and serve as reason to believe. Because “reason to believe” does not depend upon proof by conviction, the government is not limited to the record of conviction and may seek out police or probation reports or use defendant’s out-of-court statements. This is a very serious ground that cannot be waived, and it applies to juveniles as well as adults.

Chapter 5

The standard of “reason to believe” is lower than that required for an admission to an offense. For instance, someone whom USCIS believes dealt drugs in the past, even as a juvenile and without a conviction, could be found inadmissible. USCIS, however, must have more than a mere suspicion—they must have “reasonable, substantial, and probative evidence,” that the person

under § 237(a)(2) and thus does not stop the seven-year clock where removal proceedings are predicated on a charge of deportability.

5-44

Tab Position 1

Immigrant Legal Resource Center June 2017

engaged in drug trafficking. 96 This means that an arrest or charge of drug trafficking by itself should not suffice as substantial evidence to prove inadmissibility under “reason to believe.” The government must support the charge with other evidence such as a police report or other documentation of the drug trafficking, testimony from police, detectives, or other officers, or admissions from the person himself. 97

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Convictions for straight possession, being under the influence, or possession of paraphernalia etc. do not necessarily give the government “reason to believe” the person has engaged in trafficking (unless it involved a suspiciously large amount). B.

Controlled Substance Aggravated Felonies

The aggravated felony definition includes, “… any illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code).” 98 Under this definition, a state controlled substance conviction can qualify as an aggravated felony in either of two ways. First, it may constitute “illicit trafficking” as it is generally defined, for example sale or possession for sale of a controlled substance. Second, the state offense may be a “drug trafficking crime” even if it does not actually involve trafficking, as long as it is exactly analogous to a felony offense listed in the federal drug statute. Simple possession is in some circumstances such an offense. 1. Illicit trafficking offenses A drug trafficking aggravated felony includes conviction of “illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act).” 99 The BIA defined trafficking as “the unlawful trading or dealing of any controlled substance.” Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). The Board has explained that the concept of “trafficking” 96

5-45

Chapter 5

Matter of Rico, 16 I&N Dec. 181, 185-86 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). See also Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1349-50 reh’g denied, 409 F. App’x. 314 (11th Cir. 2010) (vague arrest reports and vacated guilty plea were not sufficiently reasonable, substantial, and probative); Matter of Favela, 16 I&N Dec. 753, 756 (BIA 1979). 97 Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1349-50 reh’g denied, 409 F. App’x. 314 (11th Cir. 2010) (vague arrest reports and vacated guilty plea were not sufficiently reasonable, substantial, and probative); Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient reason to believe the alien had committed illegal acts underlying previous drug trafficking arrest because the government submitted documents describing the police surveillance of the person and the person’s subsequent attempt to escape with 147 pounds of marijuana); Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003)(in addition to a previous arrest for drug trafficking, two undercover detectives testified that they had personally arranged drug deals with the petitioner); Matter of Favela, 16 I&N Dec. 753, 756 (BIA 1979)(applicant admitted to participating in an attempt to smuggle a kilogram of marijuana into the United States); Matter of Rico, supra (BIA did not rest on evidence of arrest for drug trafficking, but testimony of the Border Patrol Agent and the Customs Inspector that he frequently drove the car in which 162 pounds of marijuana was found as well as testimony of special agents of the Drug Enforcement Administration in the investigation of the incident). 98 INA § 101(a)(43)(B). This definition was added by the Anti-Drug Abuse Act of 1986. 99 INA § 101(a)(43) as amended by IA90 501 and MTINA 306(a)(1).

includes, at its essence, a “business or merchant nature, the trading or dealing in goods.” State, federal, and qualifying foreign felony offenses that meet the common definition of “illicit trafficking” will be held to be aggravated felonies regardless of whether they are exactly analogous to the designated federal laws. 100 A conviction of sale or possession for sale of a federally defined controlled substance in any state will be held to be an aggravated felony as an offense that meets the generally-understood definition of drug trafficking. Possession with intent to sell, because it contains a trafficking element, will also be an aggravated felony. 101 Manufacture, importation, and exportation are other types of offenses that will constitute drug trafficking. The Ninth Circuit held that offering (solicitation) to sell a controlled substance is not an aggravated felony drug trafficking offense. 102 This rule has not been applied elsewhere. Transportation for personal use should not be held an aggravated felony because it does not involve trafficking and is not analogous to a listed federal offense. 103 a. Felony/misdemeanor classification

Chapter 5

To be an aggravated felony as an offense that meets the general definition of illicit trafficking, the Board of Immigration Appeals in Matter of Davis held that a state drug conviction must be a felony under the law of the convicting jurisdiction, i.e., the state. 104 This is a different test than that used in determining whether an offense is a felony and therefore an aggravated felony under the “federal analogue” prong of the aggravated felony definition, which is discussed in the next section below. In the “federal analogue” cases, extensive litigation culminated in the Supreme Court holding in Lopez v. Gonzales that the standard is whether the offense would be classified as a felony under federal law, and not the convicting jurisdiction. While having two different tests for a felony might be justified based on the different statutory language employed in the two 100 See Matter of Davis, 20 I&N Dec. 536 (BIA 1992). The common understanding of the word trafficking includes a commercial element. Some examples of trafficking include sale, manufacture, importation, and exportation. The Supreme Court stated that illicit trafficking “ordinarily … means some sort of commercial dealing.” Lopez v. Gonzales, 549 U.S. 47 (2006). 101 Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008) (However the statute in question, Kansas Stat. Ann. § 65-4163(a), was not categorically an aggravated felony because it could have been committed by “offering.”) 102 The Ninth Circuit held that “generic solicitation” (i.e., solicitation to commit any offense) is not a drug trafficking aggravated felony or a deportable controlled substance offense, even when the offense solicited involves drug trafficking. See United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)(en banc), (superseded on other grounds as applied to federal prosecutions by U.S.S.G. § 2L1.2 CIMT. n. 4 (2002), as recognized in United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir. 2007), and Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir 1997).) However, a conviction under a statute that criminalizes solicitation of a drug offense will trigger deportability and inadmissibility as an offense “relating to a controlled substance.” See Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009) (Calif. H&S § 11352(a)); Guerrero-Silva v. Holder, 599 F.3d 1090 (9th Cir. 2010) (H&S § 11361(b)); Hernandez-Aguilar v. Holder, 594 F.3d 1069 (9th Cir. 2010) (H&S § 11379(a)). Moreover, a conviction of offering to sell still leaves the defendant vulnerable because the government will charge that it has “reason to believe” the person has been a drug trafficker. 103 See discussion in United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999). 104 Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992).

5-46

Tab Position 1

Immigrant Legal Resource Center June 2017

prongs of the aggravated felony definition, it also may be that the 1992 Davis decision will be revisited in light of Lopez. In any event, most offenses that meet the general definition of “illicit trafficking” also will qualify as aggravated felonies under the “federal analogue test” and thereby could be designated aggravated felonies under that felony/misdemeanor standard as well. See the discussion below.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

b. “Federal analogues”: Simple possession and other offenses that do not involve trafficking A state drug conviction can be an aggravated felony even if it does not involve what is generally considered to be drug trafficking, if the offense is exactly analogous to a federal drug felony cited in the aggravated felony definition. 105 Carefully examine state convictions for the following offenses, to see if the elements are analogous to federal felonies: • • • • • • •

Possession with a recidivist sentence enhancement 106 Possession of flunitrazepam 107 Distribution without remuneration (other than distributing a small amount of marijuana) 108 Manufacture, sale, cultivation, or importation of a controlled substance (including cultivating marijuana for personal use) 109 Maintaining a place where controlled substances are sold110 Sale of drug paraphernalia 111 and Obtaining a controlled substance with a false prescription. 112

In the Ninth Circuit only, conviction of solicitation (offering) to commit the above offenses or drug trafficking has been held not to be an aggravated felony. 113

105

5-47

Chapter 5

INA § 101(a)(43)(B) defines as an aggravated felony conviction “any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code).” Section 924(c)(2) reads, “For purposes of this subsection, the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act, 21 USC § 801, et seq., the Controlled Substances Import and Export Act, 21 USC § 951, et seq., and the Maritime Drug Law Enforcement Act, 46 USC App. § 1901, et seq.” See also Matter of Barrett, 20 I&N Dec. 171 (BIA 1990); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). Under Matter of Barrett, to be an aggravated felony the offense must include “all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws.” 20 I&N Dec. at 174. 106 See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). 107 See discussion in Subsection i, below. 108 See discussion in Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). 109 Regarding cultivation of marijuana as an analogue to 21 USC § 841(a)(1), (b)(1)(D), see, e.g., discussion in U.S. v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008). 110 This may be an analogue to 21 USC § 1856. See, e.g., Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006). That case acknowledged that a federal controlled substance must be involved, but did not discuss whether the state conviction involved a federal substance. This is a requirement now. See discussion in Mellouli v. Lynch, 135 S. Ct. 1980 (2015). 111 This may be an analogue to 21 USC § 863(a). 112 This may be an analogue to 21 USC § 843(a)(3). 113 U.S. v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc).

The next sections discuss more about simple possession, and the effect of post-conviction relief. 2. Simple possession or less In 2006, the U.S. Supreme Court held in Lopez v. Gonzales 114 that a state offense is an aggravated felony if it is analogous to designated federal felonies, as opposed to federal misdemeanors. That provides some clarity as to which minor non-trafficking offenses are aggravated felonies. 1. A state conviction for most minor offenses that do not amount to possession—such as possessing paraphernalia or being under the influence—is not an aggravated felony. These offenses are not “drug trafficking” aggravated felonies because they do not meet either prong of the definition: they do not meet the general definition of trafficking, and they are not analogous to a federal drug felony. Still, any offense “relating to” a federally-defined controlled substance can make the person inadmissible or deportable. See INA §§ 212(a)(2)(A), 237(a)(2)(B)(ii). The deportation ground contains an automatic exception for conviction/s arising from a single incident involving simple possession of less than 30 grams of marijuana or hashish. That offense does trigger inadmissibility, but it may be waivable under INA § 212(h). 2. A first state conviction for simple possession is not an aggravated felony. This is because a federal first conviction for simple possession is only a misdemeanor. Lopez v. Gonzales, supra. The only exception is if the substance possessed was flunitrazepam (a date-rape drug). Because that offense is punished as a felony under federal law, a state conviction is an aggravated felony. The same used to be true of possession of more than five grams of cocaine base, but that changed when Congress made the federal offense a misdemeanor. 115 3. A second state conviction for simple possession is not an aggravated felony unless a recidivist sentence was imposed based upon a finding that the person had a prior drug conviction. Under the federal Controlled Substance Act, a possession conviction is punishable as a felony only if the prosecutor proves the existence of a prior conviction before trial or a guilty plea. In Carachuri-Rosendo v. Holder, 116 the Supreme Court therefore held that, at a minimum, the record of conviction must contain a finding that the prosecutor proved the prior drug conviction for recidivist sentence enhancement purposes, in order for the second conviction to be an aggravated felony.

114

Lopez v. Gonzales, 549 U.S. 47 (2006). See discussion of flunitrazepam and cocaine base in Lopez, supra at 59. After Lopez was published, the Fair Sentencing Act, Pub. L. 111-220 (August, 3, 2010) amended 21 USC § 844(a) by deleting the language that made a conviction for simple possession of more than five grams of crack cocaine a felony, so that the offense now is a federal misdemeanor. Therefore a state analogous is not an aggravated felony. 116 Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).

Chapter 5

115

5-48

Tab Position 1

Immigrant Legal Resource Center June 2017

4. Check to see if post-conviction relief will eliminate the conviction, or if no conviction even came into being. See § 5.3, above. Recall that generally, a conviction is eliminated for immigration purposes only if it is vacated for legal error. An exception, which applies only to immigration proceedings that arise within the Ninth Circuit, is that certain possession convictions from on or before July 14, 2011 can be eliminated by rehabilitative relief, under Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

5. If the record of conviction does not identify the specific controlled substance, the state conviction might not be an aggravated felony, or even a deportable or inadmissible offense. A conviction for any drug related offense may not be a controlled substance offense for immigration purposes, since it must be a federally-defined controlled substance offense in order to trigger the controlled substance inadmissibility and/or deportability grounds. Therefore, where the substance is not named, it is neither an aggravated felony nor a deportable or inadmissible drug conviction. See Subsection C below. Case Examples. These examples illustrate the rules under Lopez v. Gonzales and Carachuri v. Holder. Example 1: Sam is convicted of felony simple possession of heroin in state court, his first controlled substance offense. Aggravated felony? This is not an aggravated felony under Lopez v. Gonzales. No simple possession conviction without drug priors is an aggravated felony, other than possession of flunitrazepam (because that is the only simple possession offense that federal law punishes as a felony). Deportable/Inadmissible? Yes, as a conviction of an offense relating to a federallydefined controlled substance, it makes Sam deportable and inadmissible. Example 2: Esteban participated in a pre-trial diversion program in 1995, where he did not admit any guilt. After he completed the program requirements, the charges were dropped. Aggravated felony? No. Because there was no plea or finding of guilt, this is not a conviction at all for immigration purposes. Deportable/Inadmissible? This is not a conviction, and so would not be a deportable or inadmissible drug conviction. Also, because the drug charge against Esteban was brought to criminal court and resulted in less than a conviction, he cannot be charged with being inadmissible for admitting that he committed a drug offense, if he ever does admit it. See Subsection 3.a, above. Example 3: Linda is convicted of being under the influence of an unidentified “controlled substance,” her first drug conviction ever.

5-49

Chapter 5

Aggravated felony? No. This does not involve trafficking and there is no federal analogous offense.

Deportable/Inadmissible? That depends. To prove deportability, ICE must prove under the categorical approach that the conviction related to a federally-defined controlled substance. If the state drug schedules contain one or more substances not on the federal schedules, ICE will need to do work. First it will need to prove that the state drug offenses are “divisible” between the different substances. Then it will need to produce a record of conviction that shows that this particular offense involved a federally-defined substance. See §§ 5.5, 5.6 on the categorical approach. Example 4: Francois is convicted of possession for sale of marijuana. Aggravated felony? Yes. Possession for sale of a federally-defined substance such as marijuana is an aggravated felony. However, if this particular state statute includes giving away a small amount of marijuana (which is not an aggravated felony), and the statute is not divisible between possession for sale and giving away a small amount, the conviction would not be an aggravated felony. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). Deportable and inadmissible? Yes. C.

Defense Strategies against Controlled Substance Charges in Removal Proceedings

A noncitizen who can come within the following categories may avoid becoming deportable, and in some cases avoid becoming inadmissible, for a controlled substance conviction. These safe havens also avoid the aggravated felony designation. 1. “Relating to” a controlled substance: accessory after the fact and other offenses not primarily directed at controlling drugs a. Accessory after the fact and similar crimes An individual commits accessory after the fact or misprision of felony when she acts in some way to help a criminal (the “principal”) avoid the criminal justice system. Courts and the BIA have found that accessory after the fact and misprision do not take on the character of the principal’s offense. Instead, they are offenses relating to law enforcement and apprehension of criminals. 117 Therefore, a conviction is not a controlled substance offense for immigration purposes even if the principal committed a controlled substance offense, and it does not make the noncitizen deportable or inadmissible for having a drug conviction. The same argument can be made for similar offenses, such as tampering with evidence. Immigration counsel may argue that any offense not found in the controlled substance section of a code should not be classified as an offense “relating to” controlled substances.

Chapter 5

117

Castaneda de Esper v. INS, 557 F.2d 79, 83-84 (6th Cir. 1977), Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (misprision of felony not a controlled substance offense). Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (accessory after the fact is not an offense “relating to controlled substances” but is an aggravated felony as obstruction of justice if a one-year sentence is imposed); Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999) (misprision is not a controlled substance offense and also not an aggravated felony as obstruction of justice even if a one-year sentence is imposed); but see Denis v. Attorney Gen. of U.S., 633 F.3d 201, 206 (3rd Cir. 2011)(declining to defer to the BIA’s analysis in Espinoza and ruling that tampering with physical evidence under NYPL § 215.40(2) was an aggravated felony as an offense relating to obstruction of justice with a one-year sentence imposed).

5-50

Tab Position 1

Immigrant Legal Resource Center June 2017

While this is very good news for avoiding immigration consequences for a controlled substance offense, accessory after the fact and similar offenses may have other immigration consequences, discussed here.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Aggravated Felony. An offense “relating to obstruction of justice” is an aggravated felony, but only if a sentence of a year or more is imposed. INA 101(a)(43)(S). If a lesser sentence was imposed it is not an aggravated felony. Authorities are split as to what the definition of “an offense relating to obstruction of justice” is, and which accessory-type offenses come within it and thus are potentially aggravated felonies. Two issues are whether the definition requires a specific intent to hinder, and/or an ongoing criminal case against the principal. Regarding intent to hinder, the BIA found that accessory after the fact under 18 USC § 3 is an offense “relating to obstruction of justice,” while misprision of felony under 18 USC § 4 is not. 118 The Board found that federal accessory after the fact requires “an affirmative action knowingly undertaken ‘in order to hinder or prevent [the principal’s] apprehension, trial or punishment.’” In contrast, it found that nothing in the federal misprision statute “references the specific purpose for which concealment must be undertaken.” 119 Counsel should check the law in the governing circuit to see if federal courts accept this distinction. 120 Regarding an ongoing case, the BIA clarified earlier decisions and held that obstruction of justice does not require the existence of an ongoing criminal investigation or trial, but can include helping the principal to escape from initial arrest (i.e., at a time before any process had begun). The Board found that accessory after the fact under California Penal Code § 32 is obstruction of justice even though it reaches intent to help a principal escape from “arrest, trial, conviction or punishment” (emphasis supplied). The Board summarized that a crime relates to obstruction of justice “if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice,” but that “interference with an ongoing criminal investigation or trial … is not an essential element.” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012). On appeal, the Ninth Circuit disagreed with the Board’s ruling that obstruction of justice does not require interference with an ongoing criminal proceeding or investigation. The court found that this definition differed from the BIA’s prior interpretations of the aggravated felony provision. Further, it held that this definition raised Fifth Amendment concerns about unconstitutional vagueness, because an unpredictable variety of specific intent crimes could fall within the BIA’s

118

5-51

Chapter 5

Matter of Batista-Hernandez, supra (accessory after the fact under 18 USC 3 is obstruction of justice); Matter of Espinoza, supra (misprision of felony under 18 USC 4 is not); see also United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007). 119 Matter of Espinoza, at 894, cited in Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012). 120 Compare, e.g., Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011) (noting distinction between Batista and Espinoza, and applying Espinoza to hold that Washington “rendering criminal assistance” offense was not categorically an obstruction-of-justice offense) and Denis v. Attorney Gen. of U.S., 633 F.3d 201, 206 (3rd Cir. 2011)(declining to defer to the BIA’s analysis in Espinoza and ruling that tampering with physical evidence under NYPL § 215.40(2) is an aggravated felony as an offense relating to obstruction of justice with a one-year sentence imposed).

expanded definition. Therefore it declined to defer to the Board and remanded the case, instructing the Board to decide accordingly. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 811 (9th Cir. 2016). Note that under administrative law principles, the BIA can and probably will continue to apply the precedent decision in Matter of Valenzuela-Gallardo in cases that arise outside of the Ninth Circuit—despite the fact that Mr. Valenzuela-Gallardo’s own case was reversed. Advocates outside of the Ninth Circuit must research the law in their circuit and if needed litigate the issue. Crime Involving Moral Turpitude. The BIA has held that accessory after the fact is a crime involving moral turpitude if the principal’s offense involved moral turpitude. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). Where this rule is employed, the categorical approach might provide a defense. Depending on the accessory statute, counsel may be able to argue that specific crime committed by the principal is not an “element” of the accessory offense, in that a jury would be able to convict a defendant of being an accessory even if it disagreed as to the specific crime the principal had committed. See discussion of the categorical approach at § 5.4. Before Rivens, a different Board panel held that misprision of felony is categorically a crime involving moral turpitude. Matter of Robles-Urrea, 24 I&N 22 (BIA 2006). Rivens did not address that opinion. Federal courts are split on these issues, and counsel should research the law in the circuit governing your case. The Ninth Circuit found that California accessory after the fact and federal misprision of felony are categorically not crimes involving moral turpitude. 121 The Second Circuit remanded a case to the BIA with a request for the Board to publish a new opinion in light of conflicting authority. 122 “Reason to Believe” Drug Trafficking. Depending on the facts, there is some chance that the government would assert that the act of hiding a drug trafficker after he has completed the trafficking is aiding or colluding in the trafficking. This inadmissibility ground is based on conduct, so the government is not limited to looking at facts in the record of conviction. See discussion on “reason to believe trafficking” above in Subsection A. b. Other offenses where the primary purpose is not to control illegal drugs A criminal statute that “does not by its language indicate [that] it was contemplated to be” a controlled substance law, and historically has constituted a “criminal offense separate and distinct from the [underlying] felony” is not a law relating to a controlled substance for immigration purposes. This principle was originally articulated in the Sixth Circuit case Castaneda de Esper, which held that misprision of felony was not a deportable drug offense. 123 The principle has been adopted by the BIA and federal courts, in some cases for offenses that go beyond accessory and misprision. The BIA found that a federal conviction for unlawfully carrying a firearm during the

Chapter 5

121

Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (Cal. Penal Code § 32, accessory after the fact); Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (18 USC 4, misprision of felony). 122 See discussion in Lugo v. Holder, 783 F.3d 119 (2nd Cir. 2015). 123 See Castaneda de Esper, supra.

5-52

Tab Position 1

Immigrant Legal Resource Center June 2017

commission of a felony was not a deportable controlled substance offense, even though the underlying felony involved a controlled substance. 124 2. Disposition that does not identify a federally-defined controlled substance

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

For immigration purposes, a controlled substance (illegal drug) is defined by federal drug schedules (lists of controlled substances), located at 21 USC § 802. Many states have state drug schedules, or lists of controlled substances, that are slightly different from the federal list, and that may contain one or more substances not on the federal list. The first step in this defense is to ascertain whether your state statute reaches any substances not on the federal list. If it does, to use categorical approach lingo, your state statute is “overbroad” compared to the federal definition. This disparity can give rise to important defenses. If a state controlled substance statute is overbroad and the record of conviction does not identify which controlled substance was involved, there is no proof that the substance in the conviction was one that is on the federal list. Therefore, there is no proof that the offense “related to” a federally-defined controlled substance, and the person is not deportable. The entire record of conviction must be vague as to the substance, in order for this to work; see § 5.5. See Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) and the Supreme Court opinion, Mellouli v. Lynch, 135 S. Ct. 1980 (2015). Furthermore, in cases where the statute is found to be “indivisible,” it may be that no conviction under the statute is a deportable or inadmissible drug offense—regardless of what the person’s record of conviction reveals. This section will discuss these defenses. Note that this rule applies to any type of controlled substance offense. The BIA held for some time that for certain offenses, such as possession of paraphernalia, there was no requirement to show that a federally-defined controlled substance was involved. 125 The Supreme Court abrogated that in Mellouli v. Lynch, supra, when it held that the Mr. Mellouli’s Kansas conviction for possession of paraphernalia was not a deportable controlled substance offense under the categorical approach, because the vague record of conviction failed to identify a federally-defined controlled substance. In Mellouli, the Supreme Court again affirmed that the categorical approach applies in determining whether a conviction is of a deportable offense. This discussion requires some knowledge of the categorical approach; please review the discussion at § 5.5, if needed. In sum, the categorical approach divides criminal statutes into two types, “divisible” and “indivisible.” If a state statute (here, a state drug schedule) reaches some conduct that is not included in the federal “generic” definition in the removal ground (here, the federal drug schedules), then the state statute is “overbroad.” If the overbroad statute is indivisible, then no conviction under the statute ever triggers the removal ground (here, no conviction under the state statute would be a deportable or inadmissible drug offense). This is true regardless of what facts appear in the person’s conviction record or what facts she admits. But if instead the overbroad statute is divisible, then under the so-called modified categorical approach, the IJ can make a limited

5-53

Chapter 5

124 Matter of Carrillo, 16 I&N Dec. 625, 626-627 (BIA 1978) (citing Castaneda de Esper, the court held that conviction of the federal offense of unlawful carrying of a firearm during commission of a felony was not a drug offense even when the underlying felony was identified in the record of conviction as possession with intent to distribute heroin). 125 Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009).

review of the person’s record of conviction to see if it establishes that the person was convicted of a removable offense (here, to see if the record shows the conviction was for a substance that also appears on the federal schedule). In Mellouli, Mr. Mellouli did not assert that the Kansas statute in his case was indivisible as to different substances. Therefore the Court stated that it would assume the state was divisible, and it looked to his record of conviction under the modified categorical approach. Mellouli, n 4. Because the record of conviction did not identify which substance was used, Mr. Mellouli was found not deportable. Essentially the Court set out the rule that if at the time of the conviction,126 the state statute was overbroad because it listed one or more non-federally-defined substances; and if the state statute was divisible; and if the reviewable record of conviction did not conclusively identify a specific federally-defined substance; then there is not a deportable conviction under the controlled substance ground. For further discussion of Mellouli, see online Advisory. 127 In other cases, advocates may assert that an overbroad state drug statute is indivisible as to the different substances. 128 As discussed in § 5.5, the test for this is: If a jury could find the defendant guilty despite the fact that it did not unanimously choose between statutory alternatives, then the statute is indivisible. (Don’t give up here; wait for the Example.) If a statute is overbroad and indivisible, the immigrant wins big. The IJ may not look to her record of conviction. Instead, the IJ must find that no conviction under the statute meets the federal definition (here, no conviction under the state is a deportable or inadmissible drug conviction). Example: Karma was convicted of possessing a controlled substance under a state statute. The statute defined “controlled substance” in State Schedule II. State Schedule II lists “Substances A, B, or C.” At the time of Karma’s plea, Substances A and B also appeared on federal schedules, but Substance C did not. Therefore the state drug schedule was “overbroad” compared to the federal drug schedule. Unfortunately, Karma pled guilty to possessing Substance A, which is a federally-defined substance. She should have a defense, however. Under the law of her state, if Karma had gone to trial she could have been found guilty even if her jury had split as to the substance—for example, if eight jurors found she used Substance B and four found substance C. That means that the state schedule is indivisible as to those substances. (The Supreme Court’s reasoning is that, if a jury does not have to agree unanimously between statutory alternatives, those alternatives are not truly “elements” of the offense.) Because the statute is overbroad and indivisible, no conviction under the state statute is a deportable or inadmissible drug conviction. Despite her guilty plea, Karma is not deportable or inadmissible for a drug conviction.

Chapter 5

126

See Mellouli v. Lynch, 135 S. Ct. 1980, 1988 (2015). (“At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists.”) 127 Go to www.immigrantdefenseproject.org/wp-content/uploads/2015/06/Mellouli-Advisory-6-8-15FINAL.pdf. 128 The Ninth Circuit held that a California drug offense is divisible for this purpose (Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), but the court will reconsider the issue in an en banc hearing, in U.S. v. Martinez-Lopez (No. 14-50014).

5-54

Tab Position 1

Immigrant Legal Resource Center June 2017

If a state statute does not refer to any particular drug schedule, there may be a good defense. Some offenses include a single, broad term like a “drug,” not linked to any statutory definition that is phrased in the alternative. A single term never is divisible. 129 In that case, if the advocate can produce a case showing that the statute ever has been used to prosecute a non-federallydefined substance, then the statute is overbroad and indivisible, and no one convicted under it has a deportable of inadmissible conviction. (For example, some state DUI statutes prohibit driving under the influence of a “drug,” and have been used to prosecute drivers who are using an overthe-counter drug that causes dangerous drowsiness.)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Another opportunity is if the statutory definition, by reference to drug schedules, includes dozens or hundreds of substances. Arguably, at least where deportability is at issue it is the government’s burden to establish that each of those substances actually appears in the referenced federal schedules. 130 Let’s consider the least less beneficial situation. If instead all of the substances listed in the state drug statute (including the referenced drug schedule, if any) also appear on federal schedules, this defense is not available. The state statute is not overbroad compared with the federal definition; instead, it is a categorical match. In that case, every conviction under the statute is a deportable and inadmissible drug conviction. Example: Marcie was convicted of a state statute that prohibited “possession of heroin, methamphetamines, or marijuana.” All of those substances appear on the federal schedule, so every conviction under the state statute necessarily involved a federallydefined substance. The government does not have to present Marcie’s record of conviction. It can meet its burden just by proving that she was convicted under that statute, and by showing that all substances listed there appear on federal schedules. 3. Possession of thirty grams or less, or being under the influence of, marijuana or hashish Conviction/s that arise from “a single offense involving possession for one’s own use of thirty grams or less of marijuana” have advantages under immigration law. The noncitizen comes within an automatic exception to the controlled substance deportation ground. INA § 237(a)(2)(B)(i). If otherwise qualified, an inadmissible noncitizen can apply for a discretionary waiver of inadmissibility under INA § 212(h). It appears that the deportation ground exception and the waiver of inadmissibility under § INA 212(h) employ the same definition for which offenses qualify, although the burden of proof may be different. In Matter of Davey, 26 I&N 37 (BIA 2012), the BIA held that the amount of marijuana is proved not under the categorical approach, but in a circumstance-specific inquiry that can consider relevant evidence from outside the record. The BIA held that a person convicted of more than one statutory crime may be covered by the exception if all the person’s crimes were closely related to 129

See discussion of Descamps v. U.S., 133 S.Ct. 2276 (2013) (“entry” is not a divisible term) at § 5.5. But in the context of a motion to reopen the burden may be on the noncitizen. See Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000) (in context of an untimely motion to reopen, where the applicant must show “exceptional circumstances,” she has the burden of showing that the state offense is not located on the federal list. “The current posture of this case is critical to our decision. Were this case now before us on direct appeal, we might be inclined to remand for a further hearing.”) 130

Chapter 5

5-55

or connected with a single incident in which the person possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimes was inherently more serious than simple possession. In Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014), the BIA reaffirmed the rule in Davey and found it was not implicitly reversed by the Supreme Court in Moncrieffe v. Holder, supra. The BIA rejected the respondent’s argument that the minimum prosecuted conduct test must apply, and therefore because a statute prohibiting possession of “more than an ounce” (i.e., more than 28.5 grams) of marijuana, had been used to prosecuted less than 30 grams, the conviction was not a deportable controlled substance offense. Instead the BIA reaffirmed that the circumstance-specific test applies to the amount of marijuana. It remanded to the immigration judge so that DHS could “proffer any evidence that is reliable and probative” to prove that the amount was over 30 grams, and the respondent would have a reasonable opportunity to challenge or rebut the evidence. Dominguez-Rodriguez, supra at 414. A record simply showing conviction of a statute that prohibits possession of more than an ounce of marijuana, without more, does not prove the government’s case, since an ounce is 28.5 grams. If the conviction is old so that there are no records, it may be that your client’s credible testimony about the amount will be the only evidence. Note, however, that some advocates assert that the 30 grams exception should be evaluated using the regular categorical approach, not the circumstance-specific approach. See discussion of the circumstance specific approach at § 5.7, above. This exception reaches some other offenses that are very similar to simple possession of marijuana. The General Counsel of the INS 131 ruled that conviction of simple possession of 30 grams or less of hashish or other cannabis products comes within the marijuana exception to the deportation ground, and can be waived under INA § 212(h). In the context of the § 212(h) waiver, however, the General Counsel recommended that authorities deny a waiver to someone who possessed an amount of hashish equivalent to more than 30 grams of marijuana leaves. 132 The exception also includes a conviction for possession of drug paraphernalia, where the drug involved was 30 grams or less of marijuana. Matter of Martinez-Espinoza, 25 I&N Dec. 118, 125

Chapter 5

131

Before immigration duties were given to various agencies within DHS, the Immigration and Naturalization Service (INS) handled both adjudication and enforcement within the U.S. 132 “So long as the facts of a case satisfy the other requirements of section 212(h), you may properly interpret section 212(h) as giving you the authority to grant a waiver to an alien whose conviction was for the simple possession of 30 grams or less of any cannabis product that is within the definition found in 21 USC § 802(16). Absent some unusual circumstances, however, we recommend that you limit your discretion in section 212(h) cases so that a section 212(h) waiver will be denied in most cases in which the alien possessed an amount of marijuana, other than leaves, that is the equivalent of more than 30 grams of marijuana leaves under the Federal Sentencing Guidelines, 18 USC App. 4.”) See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992). See also 21 USC § 802(16), defining marijuana to include all parts of the Cannabis plant, including hashish.

5-56

Tab Position 1

Immigrant Legal Resource Center June 2017

(BIA 2009); Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008). The Ninth circuit held that it extends to convictions or admissions of being under the influence of marijuana. 133 Because DHS acknowledged that hashish is in the same category as marijuana for purposes of this exception, being under the influence of hashish also should get the benefit. The Ninth Circuit held that conviction for having attempted to be under the influence of tetrahydrocannabinol (THC)-carboxylic acid in violation of Nev. Rev. Stat. § 193.330 and Nev. Rev. Stat. § 453.411 also comes within this exception, where the government failed to establish that the conviction was for “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 134

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The BIA has ruled that a conviction for a small amount of marijuana under a statute that has as an element that such possession be in prison or other correctional setting (in this case, Calif. Penal Code § 4573.6), does not come within the beneficial exception. 135 Immigration counsel may want to challenge this on the grounds that the BIA’s decision goes beyond the plain statutory language and is only weakly supported by the cited legislative history. 4. Dispositions that are not “convictions”: Juvenile delinquency, cases on appeal, pre-plea and deferred prosecution dispositions, and infractions Section 5.3, above, discusses the immigration definition of “conviction” and the dispositions that are not included in that definition. If a disposition is not a conviction, it does not constitute an aggravated felony conviction and cannot trigger deportability or inadmissibility as a controlled substance conviction. As we discussed, delinquency dispositions are not convictions. Counsel should look out for state dispositions handled under pre-trial drug court programs, which may not involve a guilty plea. However, advocates should evaluate any other admissions or evidence that may give the government the ability to penalize the noncitizen under the conduct grounds (drug abuse and addiction, “reason to believe” trafficking), etc. discussed in § 5.2, above. PRACTICE TIP: Any Conviction—Even of a Drug Offense—May Be Vacated or Erased; This Requires the Help of a Post-Conviction Attorney. Most courts will find that a conviction that is vacated for cause (because of legal error in the conviction) no longer exists for immigration purposes. For example, your client might have been wrongly convicted or not have been afforded all of his rights during the criminal process. Convictions are invalid when a person’s constitutional or other legal rights are violated. In particular, counsel may want to explore whether the client received ineffective assistance of counsel due to failure of criminal defense counsel to advise him or her regarding the immigration consequences of a criminal disposition. In 2010, the U.S. Supreme Court in Padilla v. Kentucky, 533 U.S. 289 (2010) held that it violates the Sixth Amendment of the U.S. Constitution for defense counsel to fail to competently and affirmatively advise a noncitizen

133

Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993). Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005). 135 Matter of Moncada-Servellon, 24 I&N Dec. 62 (BIA 2007). The BIA noted that “[a] conviction for possession of a small amount of marijuana in or near a school could raise similar issues.” MoncadaServellon, at 65, n3. 134

Chapter 5

5-57

defendant regarding such consequences. In many post-conviction cases, federal and state laws may allow for the conviction to be vacated.136 It is important to investigate this option early on in the case and not wait until other options are exhausted because there are certain time limits for filing postconviction motions and post-conviction relief takes some time to complete. § 5.11 Crimes Involving Moral Turpitude A.

Overview

Crimes involving moral turpitude is a broad category that causes both deportability and inadmissibility. Hundreds of different types of offenses qualify as “crimes involving moral turpitude,” and even minor convictions have an immigration impact for both lawful permanent residents and undocumented persons. This section will first discuss what is a crime involving moral turpitude and then discuss the grounds of inadmissibility and deportability relating to crimes involving moral turpitude (CIMT). Whether a noncitizen becomes deportable or inadmissible under the CIMT grounds depends on the number of CIMT convictions, the potential or imposed sentence, and the date the offense was committed. B.

Definition of a Crime Involving Moral Turpitude

The most noteworthy feature of the term “crime involving moral turpitude” is its breadth and vagueness. The courts and the BIA frequently cite the definition given in Bouvier’s Law Dictionary (3rd Ed. 1914) as “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man,” since the INA provides no definition. 137 1. Crimes frequently found to involve moral turpitude What is or is not a crime involving moral turpitude has been the subject of much litigation over the years. In general, courts have held the following types of crimes to involve moral turpitude: 1. crimes in which an intent to defraud is an element; 2. crimes in which an intent to steal (with intent to permanently or at least substantially deprive) is an element; 3. crimes in which intent to cause or threaten great bodily harm, or in some cases if reckless or willful causing of serious harm, is an element (but not negligence); 4. some crimes in which “malice” or “lewdness” is an element.

Chapter 5

Thus, murder, rape, voluntary manslaughter, robbery, burglary with intent to commit larceny or other crime involving moral turpitude, theft (grand or petit) with intent to deprive the owner permanently, arson, certain aggravated forms of assault, and forgery all have been consistently held to involve moral turpitude. On the other hand, crimes that involve none of the above elements have been held not to involve moral turpitude, including involuntary manslaughter 136 See Chapter 8 of ILRC’s Publication: Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (www.ilrc.org) and Norton Tooby’s publication: Post-Conviction Relief for Immigrants (www.nortontooby.com) for a more detailed discussion of this topic. 137 See, e.g., Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992)(defining a crime involving moral turpitude as “conduct that shocks the public conscience as being inherently base, vile, or depraved.”)

5-58

Tab Position 1

Immigrant Legal Resource Center June 2017

(except in some cases where criminal recklessness is an element), 138 simple assault, “breaking and entering” or criminal trespass, simple assault or battery, “joyriding,” and various weapons possession offenses.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

We will examine rules pertaining to some of the most commonly charged. Theft. Not all theft offenses are crimes involving moral turpitude (CIMTs). Traditionally a theft crime has been held a CIMT only when it contains the element of specific intent to steal or otherwise permanently deprive the owner of his or her property. See Matter of V-Z-S, 22 I&N Dec.1338, fn. 12 (BIA 2000). More recently, the Board held that moral turpitude includes theft “with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) (New York Penal Law § 155.25 is a CIMT); Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) (Arizona Revised Statute § 13-1805(A) is a CIMT). The “substantially eroded” provision is in accord with the Model Penal Code, and the language appears in the code of several states. If a client was convicted under a statute with this language, the offense is very likely to be held a CIMT. A possible defense is to show that a true temporary taking has been prosecuted under the statute, e.g., taking a car or another object with the intent to return it within a few days. While the Board did not specifically define when an owner’s property rights are “substantially eroded,” passage of time appears key. The Board still distinguishes between a temporary taking, such as a traditional joyriding offense or other taking that lasts a short time, and a more harmful, extended taking. “We continue to believe that it is appropriate to distinguish between substantial and de minimis takings when evaluating whether theft offenses involve moral turpitude.… It is not a valid defense to a crime involving moral turpitude charge that a thief may have intended to return the stolen property after the passage of so much time that its value to the owner has been lost or substantially eroded.” Diaz-Lizarraga, at 851, 853. Simple assault or battery where the statute can be violated by a mere offensive touching is not a crime involving moral turpitude. This is true even when the victim and defendant share a domestic relationship. Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (where the minimum conduct to commit spousal battery is an offensive touching, the offense is not categorically a CIMT); see also Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006) (same). (Note that while older cases such as these held that the adjudicator could look to the record of conviction to see whether more than offensive touching occurred in the particular case, under recent Supreme Court precedent that is no longer allowed. Under the categorical approach, the adjudicator must consider only the minimum conduct required for guilt, without recourse to the record. See § 5.5.) Some criminal statutes provide additional penalties for an offensive touching that ends up causing an injury. These too ought not to be held to involve moral turpitude, because there was no intent (or likelihood) to cause the injury. See, e.g., Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010)

5-59

Chapter 5

138 The BIA held that where criminally reckless conduct is an element of the offense, involuntary manslaughter is a crime involving moral turpitude. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (third degree assault statute that involved criminal negligence but not recklessness is not turpitudinous). Recklessness may not be an element of involuntary manslaughter under some state statutes, see, e.g., Calif. Penal Code § 192(b).

(Canada Penal Code § 268, intentional assault with risk of causing, but not intent to cause, bodily harm is not a CIMT), citing Matter of Muceros, A42-998-610 (BIA May 11, 2000) (index decision) (California Penal Code § 243(d), battery that causes an injury, even if injury was not intended or likely, is not a CIMT). Intentional assault with a deadly weapon or with intent to cause great bodily injury is a CIMT. The difference is that simple assault generally covers behavior that is not necessarily violent, but assault with a deadly weapon or intent to cause injury covers behavior that is, or has the potential to be, much more serious. Look closely at the criminal statute’s elements and the case law interpreting those elements. False Statements versus Fraud. A false statement where there is no requirement of intent to defraud, materiality, or obtaining a tangible benefit may be held not to be a CIMT. See, e.g., Matter of Di Filippo, 10 I&N Dec. 76 (BIA 1962). However, any offense involving fraud is a CIMT. Engaging in prostitution is a crime involving moral turpitude for the prostitute. The BIA has not yet decided whether it is for the customer, 139 but the Ninth Circuit held that the customer has committed a CIMT. 140 These examples illustrate that it isn’t always easy to determine what constitutes a crime involving moral turpitude. It is critical to not rely on the labels of the offense to guess whether it involves moral turpitude or not. You must look to the minimum conduct for guilt under the criminal statute, established by jury instructions and case law, and compare that with moral turpitude findings that apply in your jurisdiction (BIA or federal court of appeals decisions). One cannot even rely solely on the language in the criminal code, as that can be misleading. If there is any doubt about whether or not your client falls within the crime involving moral turpitude removal grounds, you should not concede removability; instead you should put the government to its burden when it has the burden, and where possible argue that your client’s crime is not a crime involving moral turpitude. 2. Other considerations for moral turpitude Moral turpitude does not depend on classification as a felony or misdemeanor, or on the severity of punishment allowable or actually imposed. Rather, a crime involving moral turpitude has been defined as an act which is per se intrinsically wrong, or “malum in se.” Matter of Franklin, 20 I&N Dec. 867 (BIA 1994) aff’d, 72 F.3d 571 (8th Cir. 1995). Recidivism does not create a crime involving moral turpitude. Instead, each conviction is considered separately to determine whether moral turpitude is involved. Therefore, multiple convictions of the same offense, each of which does not involve moral turpitude, cannot be considered cumulatively to determine that the offense involves moral turpitude. See, e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (simple drunk driving, even with injury or as a repeat offense, is not a CIMT).

Chapter 5

139

Matter of R.M. 7 I&N Dec. 392 (BIA 1957); Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008). 140 Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (Cal. Penal Code § 647(b) is categorically a CIMT, for both the prostitute and the customer).

5-60

Tab Position 1

Immigrant Legal Resource Center June 2017

State court rulings on moral turpitude for impeachment purposes are not controlling for immigration. Because the definition is nebulous, there often is uncertainty as to whether an offense will be held to be a CIMT. The determination is further complicated by the question of whether the BIA or the courts will decide. For more discussion of specific offenses and cases holding that specific offenses are or are not CIMTs, see quick reference charts on the immigration consequences of state offenses; links appear at www.nipnlg.org and www.immigrationadvocates.org. And see, Tooby, Crimes Involving Moral Turpitude (www.nortontooby.com). C.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Moral Turpitude Deportation Grounds, INA § 237(a)(2)(A)(i), (ii)

There are two deportability grounds concerning crimes involving moral turpitude, INA § 237(a)(2)(A)(i) and INA § 237(a)(2)(A)(ii). Both require a conviction, unlike the moral turpitude inadmissibility ground in INA § 212(a)(2)(A)(i)(I) described in Subsection D below. See § 5.3, above for an explanation of what constitutes a conviction for immigration purposes as defined in INA § 101(a)(48)(A). 1. Deportable for one conviction of a CIMT that was committed within five years of admission and that carries a maximum possible sentence of one year or more A noncitizen is deportable for one conviction of a crime involving moral turpitude (“CIMT”) if she committed the offense within five years of her last “admission” to the United States, and if the offense carries a potential sentence of one year. INA § 237(a)(2)(A)(i). a. Convicted of one crime involving moral turpitude Under this deportation ground, there must be one existing conviction for a moral turpitude offense. Counsel should check the person’s criminal record from all jurisdictions. The fact that a noncitizen may have committed, as opposed to been convicted of, more than one moral turpitude offense has no effect on the deportation ground. (It does affect the petty offense exception discussed in the inadmissibility ground discussed below.) A prior moral turpitude conviction that has been vacated will not be counted. b. Maximum possible sentence of one year The statute also provides that the conviction must have a potential sentence of a year or more. Counsel should check to see if the maximum sentence possible under the statute at issue is less than a year so that it does not fall under this ground. Under federal law, as well as the law of several states, a felony offense carries a sentence of more than a year, while a misdemeanor offense can carry a sentence of up to a year.141 Therefore, many misdemeanor convictions can trigger this ground of deportability. Example: Marta was admitted to the United States in 2007. In 2010, she committed a theft offense that requires intent to permanently deprive. This is her only CIMT conviction. In this state, misdemeanor grand theft carries a statutory maximum possible sentence of one year; attempted misdemeanor grand theft carries a maximum possible

See 18 USC § 3559(a) (felony is punished by a sentence of more than a year), California Penal Code §§ 17-19 (same).

5-61

Chapter 5

141

sentence of six months; and “petty theft” also carries a maximum possible sentence of six months. If Marta is convicted of misdemeanor grand theft she will be deportable, because she committed the offense within five years of admission and it has a potential sentence of at least one year. If she is convicted of petty theft or attempted misdemeanor grand theft, she will not be deportable, because neither of these offenses is punishable by a sentence of a year or more. (If Marta had waited until 2013 to commit the offense she would not be deportable regardless of the potential sentence, because the crime would have been committed more than five years after her admission in 2007.) The states of Washington, Nevada, and California, have changed their state law so that a misdemeanor has a potential sentence of 364 days rather than one year, in order to prevent deportations. In California, this law applies retroactively to all misdemeanors regardless of date received. See Cal. P.C. § 18.5(a) (2017). Advocates in other states are considering pursuing this type of legislation. c. Committed within five years after admission into the United States When does an “admission” occur for purposes of starting the five years? If a person is admitted on a visitor’s visa and later adjusts status, does the five-year clock for the CIMT deportation ground start with the first admission or on the date of adjustment? The BIA clarified this rule in 2011. It held that a CIMT conviction “triggers removability under INA § 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the noncitizen was then in the United States.” Matter of Alyazji, 25 I&N Dec. 397, 397-398 (BIA 2011). Specifically, this means that the admission date that starts the five-year period is the date of initial admission for a noncitizen who enters with inspection, e.g., on a tourist visa, unless the person made a more recent “admission” at the U.S. border. The fact that the person later adjusts status does not “re-start” the five years. But if he person never made an admission to the U.S. because she entered without inspection, and later adjusted status to permanent residence, the admission date is the adjustment of status date. Note that Alyazji does not necessarily require that the date of admission be the noncitizen’s first, or even his most recent, admission. But it does mean that there is only one ‘date of admission’ that is relevant to measuring the statutory 5-year period in relation to a particular offense.” Matter of Alyazji, 25 I&N Dec. at 398. For further discussion of this case and examples of its applications, see Chapter 1 and “Practice Advisory: Immigration Authorities Clarify When One Moral Turpitude Conviction Will Make a Lawful Permanent Resident Deportable,” at www.ilrc.org/crimes.

Chapter 5

2. Conviction of two crimes involving moral turpitude after admission that are not part of a single scheme of criminal misconduct A noncitizen is deportable for two or more convictions for crimes involving moral turpitude that occur any time after admission, unless the convictions are “purely political” or arise in a “single scheme of criminal misconduct” (often interpreted to exclude almost anything but two charges from the same incident). INA § 237(a)(2)(A)(ii).

5-62

Tab Position 1

Immigrant Legal Resource Center June 2017

Example: Stan was admitted to the U.S. in 2006. He was convicted of assault with a deadly weapon in 2013 and passing a bad check with intent to defraud in 2015. Regardless of the potential or actual imposed sentences, he is deportable for conviction of two moral turpitude offenses since his admission.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Example: Joshua entered the U.S. without inspection in 2006. He was convicted of fraud in 2007. In 2010, he underwent consular processing and was admitted to the U.S. as a permanent resident, his first admission. In 2016, he tried to pass a bad check, and was convicted of a misdemeanor. Is he deportable under INA § 237(a)(2)(A)(ii)? No, because even though he has committed two crimes involving moral turpitude, only one was committed after his admission to the U.S., in 2016. Warning: Prior Waived Moral Turpitude Convictions. Immigration practitioners should be aware that moral turpitude convictions that previously were waived can come back to life to cause deportability as one of two convictions of a crime involving moral turpitude. A conviction that has been “excused” by an immigration authority under a previous application for the former § 212(c) waiver, § 240A(a) cancellation of removal, or § 212(h) waiver still can be joined to a new, subsequent conviction and form the basis for deportation under this section. 142 A conviction that has been vacated for cause cannot be used in this way. Example: After admission as a permanent resident, Mr. Khourn was convicted of drug trafficking, which is a crime involving moral turpitude. The conviction was waived under the former § 212(c) relief. He was subsequently convicted of fraud, a second offense involving moral turpitude. Despite the fact that the first conviction had been previously waived, he is deportable for two convictions of crimes involving moral turpitude received since his admission to the United States. 143 Single Scheme of Criminal Misconduct. The convictions must be for two CIMTs “not arising out of a single scheme of criminal misconduct.” The BIA has construed this phrase very narrowly, essentially holding that this exception only applies where the crimes arose out of the same incident. An example of a single scheme is “where a person breaks into a store with the intent to commit larceny and, in connection with that criminal act, also commits an assault with a deadly weapon.” Matter of Islam, 25 I&N Dec. 637, 640 (BIA 2011). D.

Moral Turpitude Grounds of Inadmissibility, INA § 212(a)(2)(A)

A noncitizen who has been convicted of one crime involving moral turpitude at any time may be inadmissible. There are two important exceptions to the rule: the petty offense exception and the youthful offender exception. PRACTICE TIP: There Are Important Differences between the Inadmissibility and Deportability Grounds Regarding Crimes Involving Moral Turpitude. A person can fall within the inadmissibility ground without a conviction. To fall within the deportation grounds, however, the person must have a conviction(s) after admission. The inadmissibility ground has 142

5-63

Chapter 5

Matter of Khourn, 21 I&N Dec. 1041, Int. Dec. 3330 (BIA 1997); Matter of Balderas, Int. Dec. 3159 (BIA 1991); Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993). 143 These are the facts of Matter of Khourn, supra.

exceptions—the petty offense and youthful offender exceptions—while the deportability grounds do not. However, counsel should look closely at the deportation grounds to make sure that the government can meet its burden of proof. 1. Petty offense exception The “petty offense exception” is a commonly used exception to the moral turpitude ground of inadmissibility. See INA § 212(a)(2)(A)(ii)(II). This is an automatic exception, which does not require the filing of any application or an exercise of positive discretion. A person qualifies for this exception, and therefore is not inadmissible, if three facts are true: • • •

This is the first time the person has committed a crime involving moral turpitude (no conviction is required here); The maximum possible sentence for the offense is one year or less; and The sentence imposed in the person’s case was six months or less. Example: Bonnie and Clyde are arrested. Bonnie is convicted of receiving stolen property as a misdemeanor, which in this state is a CIMT. It has a maximum sentence of one year. This is her first offense. She receives a three-month sentence. Bonnie comes within the petty offense exception since it was her first conviction of a crime involving moral turpitude, the maximum penalty for the offense was not more than a year, and the sentence imposed was not more than six months. She is not inadmissible. Clyde is convicted of robbery, a felony. This is his first offense. The maximum sentence for that crime is five years. No matter what sentence he gets, Clyde cannot qualify for the petty offense exception, since robbery has a maximum possible sentence of five years. Clyde is inadmissible.

Note that the petty offense exception only applies to prevent the person from being inadmissible. It does not apply to the moral turpitude deportation ground. a. Committed only one crime involving moral turpitude If a noncitizen has committed more than one CIMT, he or she will not qualify for the petty offense exception. Where a person has two or more convictions occurring out of different incidents, vacating one of the prior convictions will not restore eligibility for the exception, if the government determines that the person actually committed the prior offense. 144 The fact that the person committed another offense that does not involve moral turpitude—for example, drunk driving or simple assault—does not preclude eligibility for the exception. 145 Absent a conviction, or admission of commission of a crime involving moral turpitude, there must be a preponderance of the evidence that the person committed the offense.146

144

Matter of S-R-, 7 I&N Dec. 495 (BIA 1957) (expunged prior conviction). Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). 146 Matter of S-R-, supra at 499 (finding that a prior conviction that was expunged provided adequate proof of the commission of the offense).

Chapter 5

145

5-64

Tab Position 1

Immigrant Legal Resource Center June 2017

b. Maximum possible sentence of one year or less This is not the sentence that was actually imposed for the offense, but the maximum possible sentence that could have been imposed for the offense. Generally, counsel will have to look at the statute of conviction to determine what maximum possible sentence could have been imposed for the offense.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

c. Sentence imposed was six months or less The sentence actually imposed must not be greater than six months. Sentence is defined as a term of incarceration or confinement, and does not include probation. See INA § 101(a)(48)(B). If imposition of the sentence is suspended and a judge sentences a noncitizen to jail for five months as a condition of probation, immigration authorities will count the five months as a “sentence” and the noncitizen will meet the petty offense requirement that the sentence imposed was six months or less. If a sentence of a year is imposed but eleven months of the sentence’s execution is suspended, immigration authorities will count the entire year that was imposed, even if the person did not serve time. 2. Youthful offender exception While less commonly used than the petty offense exception, the youthful offender exception can be very helpful to a person who was convicted as an adult for an offense committed while under age 18. A disposition in juvenile delinquency proceedings is not a conviction and has no relevance to moral turpitude determinations. But persons who were convicted as adults for acts they committed while under the age of 18 do have a conviction. A noncitizen who committed only one CIMT, while under the age of 18, ceases to be inadmissible as soon as five years have passed since the conviction or release from resulting imprisonment. INA § 212(a)(2)(A)(ii)(I). Example: Raoul was convicted as an adult for felony assault with a deadly weapon, based on an incident that took place when he was 17. He was sentenced to nine months and was released from imprisonment when he was 18 years old. He now is 26 years old. Unless and until he is convicted of another moral turpitude offense, he is not inadmissible for a crime involving moral turpitude. 3. Inadmissible for making a formal admission of a crime involving moral turpitude A person who formally admits committing a crime involving moral turpitude is inadmissible, even if there is no conviction. INA § 212(a)(2)(A)(i). This must be a formal admission of all the elements of a crime. See Matter of K, 7 I&N Dec. 594 (BIA 1957). Cases have upheld use of an admission made to a police officer as well as to an immigration officer. The DHS does not often use this ground, but your clients should be warned. If there is any reason to think that a DHS officer may question your client about some specific incident, the client should get a lawyer’s advice and go to the interview with a lawyer. If the person is alone, he or she should refuse to answer questions.

Chapter 5

5-65

This ground does not apply to conduct that result in juvenile findings, or conduct committed while someone was a juvenile, because that conduct does not amount to a “crime.” 147 If the conduct was charged in criminal court but resolved in a disposition that is less than a conviction (e.g., charges dropped, conviction vacated), the person cannot be found inadmissible for admitting the crime. 148 This is true even when the defendant has independently admitted the crime before an immigration officer or immigration judge. 149 However, it is not guaranteed that a noncitizen who is acquitted will be protected from the immigration effect of independent admissions. a. Procedural requirements for an effective “admission” Strict rules control what kinds of statements by a non-citizen constitute an “admission” of a crime involving moral turpitude (as well an admission of a controlled substance offense). Failure to conform to these requirements can cause an admission to have no immigration effect. First, the conduct must be a crime under the laws of the place where it was allegedly committed. 150 The person must admit to commission of facts that constitute the essential elements of that offense. General admissions to broad and/or divisible statutes will not qualify. Where the noncitizen does not admit sufficient facts, DHS or consular official cannot use inferences.151 However, an otherwise valid admission of a crime will trigger inadmissibility even where the person may have been found not guilty due to an available defense to the crime. 152 Second, the DHS or consular official must provide noncitizen with an understandable definition of the elements of the crime at issue. 153 This “informed admissions” rule is to ensure that

Chapter 5

147

Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000); Matter of C.M., 5 I&N Dec. 327 (BIA 1953). 148 See, e.g., Matter of Seda, 17 I&N Dec. 550 (BIA 1980) (state counterpart of federal first provisions, no conviction); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968) (case placed “on file” under Massachusetts statute); Matter of E.V., 5 I&N Dec. 194 (BIA 1953) (expungement pursuant to California statute); Matter of CYC, 3 I&N Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of G, 1 I&N Dec. 96 (BIA 1942) (dismissal pursuant to Texas statute), but see also Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988)(providing new definition for resolutions not amounting to a conviction). 149 Matter of C.Y.C., 3 I&N Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of E.V., supra, note 6 (expungement under Calif. Penal Code § 1203.4 controls even where admission made to immigration judge). But see Matter of I, 4 I&N Dec. 159 (BIA, AG 1950) (independent admission supports exclusion where alien convicted on same facts of lesser offense not involving moral turpitude.) 150 Matter of R-, 1 I&N Dec. 118 (BIA 1941) (fraud in itself not a crime); Matter of M-, 1 I&N Dec. 229 (BIA 1942) (remarriage not punishable as bigamy); Matter of D-S-, 1 I&N Dec. 553 (BIA 1943) (attempt to smuggle not a crime); 22 CFR § 40.21(a). 151 Matter of B-M-, 6 I&N Dec. 806 (BIA 1955); Matter of A-, 3 I&N Dec. 168 (BIA 1948); Matter of Espinosa, 10 I&N Dec. 98 (BIA, 1962). Matter of G-M-, 7 I&N Dec. 40 (Att’y Gen. 1956); Matter of E-N, 7 I&N Dec. 153 (BIA 1956). 152 Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 153 Matter of K-, 9 I&N Dec. 715 (BIA 1962); but compare US ex rel. De La Fuente v. Swing, 239 F. 2d 759 (5th Cir. 1956); Matter of G-M-, 7 I&N Dec. 40, 42 (AG 1956), but see Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

5-66

Tab Position 1

Immigrant Legal Resource Center June 2017

noncitizens receive “fair play.” 154 Note, however, that the Ninth Circuit upheld an admission to a medical visa officer, who apparently did not follow this rule. 155 Third, the noncitizen’s admission must be free and voluntary. 156

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

In determining whether the offense that the person admitted committing involves moral turpitude, a consular officer must employ moral standards generally prevailing in the U.S. 157 If the client appears to have formally admitted the elements of a crime involving moral turpitude or a drug offense to a police officer, particularly if that offense is not charged, counsel should gather information from the client as to whether the officer explained all of the elements of the offense in an understandable manner before the admission was made and met other immigration requirements for such admissions. § 5.12 Firearms Offenses People who are convicted of any law relating to use or possession of a firearm (gun) or “destructive device” (bomb) are deportable under INA § 237(a)(2)(C). Note, however, that because there is no “firearms” ground of inadmissibility, the conviction will not make the person inadmissible unless the offense is also a crime of moral turpitude or otherwise comes within the criminal inadmissibility grounds in INA § 212(a)(2). “Firearm” includes guns or firearms, frames and receivers, and silencers. “Destructive device” includes objects such as bombs, grenades, rockets, or similar devices, or parts used to convert or create firearms or destructive devices. A.

The Firearms Deportability Ground

A noncitizen is deportable if, at any time after admission into the United States, he is “convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying or of attempting or conspiring to [commit these acts] in violation of any law, any weapon, part or accessory which is a firearm or destructive device (as defined in [18 USC § 921(a)]).” INA § 237(a)(C). Under 18 USC § 921(a), “firearm” includes guns or firearms, frames and receivers, and silencers. (It does not include antique firearms, however, which gives rise to a widely available defense; see Subsection C.) “Destructive device” includes objects such as bombs, grenades, rockets, or similar devices, or parts used to convert or create firearms or destructive devices. Conviction of an offense as minor as possession of an unregistered weapon can trigger deportability. B.

Firearms Offenses as Aggravated Felonies

Any offense involving trafficking in firearms and destructive devices is an aggravated felony. INA § 101(a)(43)(C). Any state offense that is an analogue to designated federal firearms offenses is an aggravated felony, even if it does not involve trafficking. INA § 101(a)(43)(E). A common state offense that 154

Matter of K-, 7 I&N Dec. 594, 597 (BIA 1957). Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 156 Matter of G-, 6 I&N Dec. 9 (BIA 1953); Matter of G-, 1 I&N Dec. 321 (BIA 1942); Matter of M-C-, 3 I&N Dec. 76 (BIA 1947). 157 22 CFR § 40.21(a). 155

Chapter 5

5-67

potentially is analogous to a federal offense, and therefore potentially is an aggravated felony, is conviction of possession of a firearm by certain categories of persons, such as a felon, addict, or undocumented immigrant. 158 See 18 USC § 922(g)(1)–(5), referenced in INA § 101(a)(43)(E). To see if a state offense is an aggravated felony, compare the elements of the state statute at issue with the elements of the federal offenses listed at 18 USC § 922(g)(1)–(5). That statute provides: (g) It shall be unlawful for any person [to own a firearm] -(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC 802); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (5) who, being an alien-(A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 USC 1101(a)(26)) All of the above conditions must be elements of the state offense. An element is a fact that is required for guilt in every case. For example, if the state offense does not have as an element that the defendant must be an undocumented person, the offense is not an aggravated felony just because the defendant, in fact, happens to be undocumented. Example: Martin is an undocumented person who is convicted of a state statute that prohibits “possession of a firearm by any person previously convicted of a misdemeanor.” In Martin’s state, a misdemeanor is punishable by a maximum one-year sentence. Martin is not convicted of a firearms aggravated felony. First, the offense does not involve trafficking. Second, the offense is not an analogue to a designated federal firearms offense. It is not an analogue to 18 USC § 922(g)(1) (possession by a felon), because the state statute does not require the person to have been previously convicted of an offense with a maximum possible sentence of over a year. It is not an analogue to 18 USC § 922(g)(5) (possession by a noncitizen in unlawful status). While Martin happens to be undocumented, unlawful immigration status is not an element of the state statute, and thus the state statute is not a federal analogue.159

Chapter 5

158

See, e.g., United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001)(finding Calif. PC § 12021(a)(1) an aggravated felony). 159 See, e.g., United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (finding Calif. PC § 12021(a)(1) an aggravated felony).

5-68

Tab Position 1

Immigrant Legal Resource Center June 2017

In the past, advocates argued that a state firearms offense is not analogous to a federal offense that includes a federal jurisdictional element (e.g., that requires crossing state lines, being in commerce, taking place on federal land), unless the state offense also includes a federal jurisdictional element. The Supreme Court rejected that argument in a case involving arson as an aggravated felony. Luna-Torres v. Lynch, 136 S.Ct. 1619 (2016). Advocates who want to investigate defenses after Luna-Torres should see Practice Advisory available online. 160

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A firearms offense that meets the definition of a crime of violence in § 18 USC 16 is an aggravated felony as a crime of violence, if a sentence of a year or more was imposed on a single count. See INA § 101(a)(43)(F). PRACTICE TIP: Antique Firearms. The federal definition of firearms specifically excludes “antique” firearms. 18 USC § 921(a)(3). Under the categorical approach, if a state statute ever has been used to prosecute a case involving an antique firearm, then arguably no conviction under the statute has immigration consequences as a “firearms” offense, even if the particular case did not involve an antique firearm. See further discussion at Subsection C.3, below. C.

Defenses against the Firearms Deportability Ground 1. Statutes that contain firearms and non-firearms offenses

Many state statutes involving use of a weapon encompass conduct that involves a firearm and conduct that involves some other weapon. The statute might prohibit possessing a specific group of weapons, for example, a “firearm, knife, blackjack,” etc. Or it might prohibit possession or use of a “dangerous weapon,” without offering a statutory list of possible weapons. The categorical approach can be very helpful in defending against a charge that the person was convicted of a deportable firearms offense or firearms aggravated felony. See § 5.5. The first question is whether the statute is “overbroad” because it includes weapons outside of the definition of firearms (i.e., non-firearms). Next one must determine if the statute is truly “divisible” between a firearm and a non-firearm offense. If an overbroad statute is found to be not divisible, then no conviction is of a firearms offense, regardless of any underlying facts. If it is divisible, the IJ may review the individual’s record of conviction to get more information. When is a firearms statute indivisible (not divisible)? A statute that just cites a category of weapons, e.g., assault with “a deadly weapon,” without providing a statutory list of possible weapons, is automatically indivisible. Conviction under that statute never is a deportable firearms offense—even if in the particular case, the defendant pled guilty to using a firearm. If a statutory text does list different weapons in the alternative, e.g., providing a statutory definition of “deadly weapon” as a “firearm, club, or knife,” then the question is whether these various weapons are “elements” under the categorical approach. They are “elements” only if a jury would have to unanimously agree on which weapon was used, in order to find the defendant 160

5-69

Chapter 5

See National Immigration Project of the National Lawyers Guild and Immigrant Defense Project, “Practice Alert: Luna-Torres v. Lynch” (May 20, 2016) at www.nipnlg.org/PDFs/practitioners/practice_advisories/crim/2016_20May_luna-torres-alert.pdf.

guilty. See example below. If the statute does not meet this “jury unanimity” test, it is indivisible. Again, if the statute is overbroad and indivisible, then no conviction under the statute is a deportable firearm offense. See § 5.5. If the statute is divisible between different specified weapons, then the adjudicator may conduct a limited examination of certain documents from the person’s record of conviction. If the record proves that the offense did involve a federally-defined firearm, then the person is deportable under the firearms ground. See § 5.6. Consider the following example of statutes from three different states. In each case, assume that the defendant pled guilty to an offense that involved a federally-defined firearm, as opposed to another weapon. Example: Statute A prohibits assault with a “deadly weapon.” There is no definition of deadly weapon in the statute, but cases have found this includes a firearm, a knife, and a heavy object. This statute is overbroad (because it reaches weapons beyond a firearm) and indivisible (because it is a single term in the statute, not phrased in the alternative). Therefore no conviction—even one where the defendant pled guilty to using a firearm— is a deportable firearms offense. Statute B prohibits assault with a “deadly weapon” which is defined elsewhere in the statute as a “firearm, knife, or blackjack.” It appears that under state law, if a jury disagreed about what weapon was involved—for example, if six jurors found that the defendant used a firearm and six found that he used a blackjack—they still could find the defendant guilty of assault with a deadly weapon. Statute B also should be found indivisible as to the type of weapon, because without a requirement of jury unanimity, the different listed offenses are not “elements” of the offense. Because the statute is indivisible, no conviction is a deportable firearms offense. Statute C also prohibits assault with a “firearm, knife, or blackjack.” However, in this state there is legal authority that a jury cannot find a defendant guilty of Statute C unless the jury unanimously agrees upon which weapon was used. This requirement of jury unanimity means that Statute C is divisible. Now the IJ or other adjudicator may go on to the modified categorical approach and look to the record of conviction, to see if it conclusively proves that the defendant was convicted of using a firearm versus another weapon. See § 5.5, above. Because the defendant pled guilty to using a firearm, the IJ can find that he is deportable under the firearms ground. (Again, we are assuming that the definition of firearm in the state statute meets the federal definition. But see next section on the antique firearms exception). 2. The antique firearms exception works with many state statutes; cultural purposes exception

Chapter 5

The term “firearm” is defined at 18 USC § 921(a), for purposes of both the firearms deportation ground and the firearms aggravated felony definition. 161 In every case, counsel should carefully

161

See definition of firearm cited in the deportation ground at INA § 237(a)(2)(C) and the aggravated felony definition at INA § 101(a)(43)(C), (E).

5-70

Tab Position 1

Immigrant Legal Resource Center June 2017

compare the definition of firearm in a state statute to the definition in the federal statute, to see if there are differences that would support a defense. Significantly, our federal definition “does not include an antique firearm.” 18 USC § 921(a)(3). An antique firearm is defined for this purpose as one made in 1898 or before, plus certain replicas. 18 USC § 921(a)(16).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The Supreme Court has stated, and courts of appeals have held, that if a state statute does include antique firearms, then under the categorical approach no conviction under the state statute is a deportable firearms offense or firearms aggravated felony. This is true even if in the person’s own case, the firearm was not an antique.162 These decisions overrule a prior BIA case that held that an individual must prove that her conviction involved an antique firearm, in order to assert the defense. 163 Advocates should carefully examine state firearm statutes to see if they ever have been used to prosecute conduct involving an antique firearm. This is a two-step process. First, check the statutory language of the particular offense and/or the applicable statutory definition of “firearm” under state law, to confirm that it does not specifically exclude antique firearms. If the statute is silent on the issue of antiques, i.e., it just states “firearm,” that is sufficient for this step. (If the statute does specifically exclude antique firearms, see if the state statutory definition of antique firearm matches the corresponding federal definition.) 164 Second, if the state statute does not explicitly exclude antique firearms, we must show that there is a “realistic probability” that the statute actually is used to prosecute conduct involving antique firearms. In other words, it is not enough that the statute does not affirmatively exclude firearms; one must show that at some point that statute (or another offense that uses the same state definition of firearm) has been used to prosecute an actual case that involved an antique firearm. Don’t assume that there have been no such prosecutions under the statute. Once one begins looking at state cases, it can be surprising how many people in modern times have gotten in trouble with muskets and other antiques and replicas. If needed, look for published or unpublished cases involving multiple state criminal statutes, including (a) the offense your client was convicted of; (b) the predecessor to that offense, if any; (c) the statutory definition of “firearm” applicable to your client’s offense; and (d) other offenses that employ the same statutory definition of firearm employed in your client’s offense. The Supreme Court created the rule that there must be proof of a “realistic probability” that a statute actually will be used to prosecute certain conduct. See discussion of this test at § 5.5 In this context, the Ninth Circuit interpreted the Supreme Court to mean that as long as there are

162

5-71

Chapter 5

See discussion in Moncrieffe v. Holder, 133 S. Ct. at 1678, 1693 (2013) and see, e.g., U.S. v. AguileraRios, 769 F.3d 626 (9th Cir. 2014), Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014). 163 The prior case was Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010). 164 For example, if a state statute defines an antique firearm as a firearm made before 1918, that would be broader than the federal definition at 18 USC § 922(a)(17), which defines it as one made before 1898. The state statute would be overbroad because it would include some firearms that do not come within the federal definition, namely, firearms manufactured between 1898 and 1918. Then follow the above instructions for dealing with an overbroad firearms statute.

cases showing that a state definition of “firearm” has been used to prosecute antique firearms, any offense that uses that same definition also qualifies for the antique firearm exception. 165 Recreational and Cultural Purposes. There is also an exception in the federal definition of destructive devices (used for both the firearms deportation ground and aggravated felony categories) for rifles used “solely for sporting, recreational and cultural purposes.” 166 The Seventh Circuit in Lemus-Rodriguez v. Ashcroft considered the “cultural purposes” exception. 167 However, it found that firing a gun in the air to celebrate New Year’s Eve was not a ‘cultural’ use of a gun, because it is not part of American culture. 3. Re-adjustment of status and other relief that requires inadmissibility There is no firearms ground of inadmissibility. A noncitizen who is deportable but not inadmissible can apply for adjustment of status if he is otherwise eligible as a defense to deportation. If adjustment is granted the person should no longer be deportable based on the conviction. 168 In addition, if the person is deportable and also is inadmissible under a ground that can be waived, a waiver can be submitted with the adjustment application. 169 Adjustment of status is discretionary relief, and the applicant must be able to persuade the DHS or immigration judge to grant it. § 5.13 Other Criminal Grounds of Deportability and Inadmissibility A.

Domestic Violence, Stalking, and Child Neglect, Abuse or Abandonment

A noncitizen is deportable if, after admission to the United States, he or she is convicted of a crime of domestic violence, of stalking, or of a crime of child abuse, neglect, or abandonment. The person also is deportable if found in civil or criminal court to have violated certain sections of a domestic violence protective order. INA § 237(a)(2)(E). The convictions, or the behavior that is the subject of the finding of violation of a protective order, must have occurred after admission, and on or after September 30, 1996. 170 A conviction under foreign law is not listed here, and is therefore not included as a ground of deportation.

Chapter 5

165

See, e.g., Medina-Lara v. Holder, 771 F.3d at 1116, finding that because cases show that a California statutory definition of firearm has a “realistic probability” of being used to prosecute antique firearms, any offense that uses that same definition of firearm also has such a “realistic probability.” 166 18 USC § 921(a)(4). “The term ‘destructive device’ shall not include … any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.” 167 Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. 2003). 168 Matter of Rainford, 20 I&N Dec. 598 (BIA 1992). 169 See Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993) (a person deportable under the firearms ground and inadmissible for a drug offense can apply for adjustment coupled with a waiver under former INA § 212(c) to waive the drug offense). Likewise, adjustment should be permitted in conjunction with a waiver of inadmissibility for moral turpitude, prostitution, etc. under INA § 212(h). 170 IIRIRA § 350.

5-72

Tab Position 1

Immigrant Legal Resource Center June 2017

1. Conviction of a crime of domestic violence A noncitizen is deportable for a “crime of domestic violence” conviction occurring after admission and on or after September 30, 1996. Section 237(a)(2)(E)(i) defines a “crime of domestic violence” as follows:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“For purposes of this clause, the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic violence or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from the individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.” Therefore, a deportable “crime of domestic violence” is a technically-defined “crime of violence” committed against a person with whom the defendant shares a certain kind of domestic relationship. The statute defines this relationship to include certain specific relationships, as well as anyone who is protected under an applicable state, local, federal, tribal, domestic, or family violence law. Because the definition incorporates local domestic violence laws, you will need to consult the relevant laws to see what other victims may be included. For example, because California domestic violence laws protect persons with whom one had just a dating but not a cohabiting relationship, conviction of a qualifying a crime of violence against a current or former date can form a basis for deportation under the domestic violence ground. This ground includes offenses where the domestic relationship is an element of the offense, as well as offenses without such an element, as long as there is sufficient proof that the victim and defendant actually had the required domestic relationship. As discussed in Subsection b.ii below, the BIA and some federal courts have held that ICE may use evidence from outside the record of conviction to prove the relationship. a. Defense strategies As long as the noncitizen pled to an offense that either is not a crime of violence or that was committed against a victim that does not have the required domestic relationship, the offense cannot be termed a crime of domestic violence. Counsel may argue that the conviction at issue (a) is not a “crime of violence” under 18 USC § 16, and/or (b) the victim does not have a qualifying domestic relationship to the defendant, and/or (c) it is a property offense such as vandalism, not a crime against a person. i.

Not a crime of violence

Counsel should determine whether the offense at issue meets the definition of a crime of violence set forth in 18 USC § 16. The categorical approach applies to determining whether an offense is a crime of violence under 18 USC § 16. See, e.g., Matter of Chairez-Castrejon, 26 I&N Dec. 819, 821 (BIA 2016).

5-73

Chapter 5

The Supreme Court held that under 18 USC § 16(a), a crime of violence must have as an element the attempted, actual, or threatened use of intentional, violent, physical force. Negligent conduct,

and conduct that merely caused injury without intentional violent force, is not sufficient. Section 16(b) would require the inherent risk that this type of force would be used. See Leocal v. Ashcroft, 125 S.Ct. 377 (U.S. 2004), but see further discussion of 18 USC § 16(b), below. The Supreme Court held that an offensive touching is not a “crime of violence,” 171 which is consistent with Board of Immigration Appeals cases. 172 Counsel should check the statute at issue to see if it can be committed by a mere offensive touching. If so, then no conviction under the statute should be a crime of violence, because the minimum conduct to commit the offense is not. See discussion of the minimum conduct rule in the categorical approach at § 5.5. Example: Jack is an LPR who is married to Jill. They got into an argument and Jack hit Jill. Jack is arrested and charged with misdemeanor spousal battery, an offense that can be committed by a mere offensive touching (although Jack’s conduct went beyond that). He pleads guilty. The records show that he actually hit Jill. Jack is not deportable under INA § 237(a)(2)(E)(i). Because the minimum conduct required for guilt is an offensive touching, 173 no conviction of the offense is a crime of violence. Therefore, the conviction is not a crime of domestic violence. Another part of the definition of a crime of violence, 18 USC § 16(b), applies only to felonies. That section provides that a felony offense that “by its nature, involves a substantial risk” that violent force will be used, is a crime of violence. However, the Supreme Court held that an almost identically worded federal statute is void for vagueness. 174 At this writing the Court is deciding whether 18 USC § 16(b) is void for vagueness as well. 175 In addition, the Supreme Court found that yet another distinct federal definition of crime of violence, 18 USC § 922(g)(9), includes certain reckless actions as well as intentional ones. 176 Although the Court has distinguished that definition from 18 USC § 16 before, 177 ICE still might argue that certain conduct involving recklessness also should be held to come within 18 USC 171

Johnson v. United States, 130 S. Ct. 1265 (2010). See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (spousal battery under Cal PC § 243(e) is not categorically a crime of violence because it can be committed with de minimis force). 173 This example assumes that the spousal battery statute is not “divisible” under recent Supreme Court precedent. Most battery statutes are not, even if they use the phrase “force or violence.” See Johnson, supra. But if a battery statute enumerates potentially meaningful distinctions, for example “intentionally or recklessly” using force, you should analyze whether the offense is divisible under the categorical approach. See Matter of Chairez-Castrejon, 26 I&N Dec. 819 (BIA 2016). 174 See Johnson v. United States, 135 S.Ct. 2551 (2015). For further discussion of Johnson, see Practice Advisories at www.nipnlg.org and www.ilrc.org/crimes. 175 The Court accepted certiorari in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (holding that 18 USC § 16(b) is void for vagueness, under the Court’s 2015 decision in Johnson). 176 See Voisine v. United States, 136 S.Ct. 386 (2016) (a “crime of violence” as defined in 18 USC § 922(g)(9) can include acts of force undertaken recklessly, with a conscious disregard of a substantial risk of harm)) and see Voisine Practice Alert by National Immigration Project and Immigrant Defense Project (July 1, 2016) at www.nipnlg.org. 177 See United States v. Castleman 134 S. Ct. 1405, fn. 4 (2014) (distinguishing 18 USC § 16 and its interpretive case law from the definition at 18 USC § 922(g)(9)), and see Castleman Practice Advisory by National Immigration Project and Immigrant Defense Project (April 7, 2014) at www.nipnlg.org.

Chapter 5

172

5-74

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 16. Because the law in this area is volatile, in order to determine if a particular offense is considered a crime of violence, counsel should get expert advice or do a careful analysis of the statute, considering recent cases.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

ii. Not a protected domestic relationship In order to be a crime of domestic violence, the crime of violence must be directed against a protected person as defined at INA 237(a)(2)(E)(i), e.g., a current or former spouse or co-parent of a child, or any other individual protected under applicable domestic violence or family laws. In analyzing a potential domestic violence offense from any state, one should research exactly what relationships are protected under the state’s domestic violence laws. Counsel should determine whether the offense was committed against a victim who does not have one of the designated domestic relationships. In that case, even if the offense is a crime of violence, it will not be a crime of domestic violence. Example: Karen is under a protective order not to approach her ex-husband, Robert. She gets in a fight with Robert and his date, and pleads guilty to assault with a deadly weapon against the date. The offense is a crime of violence under 18 USC § 16. But because an ex-spouse’s date is not a relationship that is listed in the deportation ground, or protected under the state’s domestic violence laws, the conviction is not a deportable crime of domestic violence. (Because it is assault with a deadly weapon it may well be a crime involving moral turpitude, but that is a different issue from whether it is a deportable crime of domestic violence.) The categorical approach applies to determining whether an offense is a ‘crime of violence,” but it is not clear that it applies to determining whether the victim and defendant shared a protected relationship for a deportable crime of domestic violence. The BIA held that the domestic relationship is a “circumstance specific” factor that can be proved using any reliable evidence, including evidence from outside the record of conviction. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). This already was the rule in immigration proceedings in several circuits. The Ninth Circuit has employed a different rule: the domestic relationship does not need to be an element of the offense, but it can be proved only with conclusive evidence found in the reviewable record of conviction. See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). However, advocates in the Ninth Circuit should be prepared for possible change. See Practice Advisory on Matter of H. Estrada at www.ilrc.org/crimes, and discussion of the circumstance specific approach at § 5.7. iii. Against property rather than a person Where the offense was a crime of violence committed against property as opposed to a person, it also should not be a deportable crime of domestic violence under the wording of INA 237(a)(2)(E)(i), which requires a crime of violence committed “against a person.” Thus, a conviction for vandalism or other property crime, even if it is held a crime of violence, should not be a deportable crime of domestic violence.

5-75

Chapter 5

PRACTICE TIP: A crime of domestic violence may trigger more than one deportation ground. For example, it may be a crime involving moral turpitude. In particular, any conviction of a crime of violence under 18 USC § 16 is an aggravated felony, if a sentence of a year or more was imposed. See § 5.9 and INA § 101(a)(43)(F). Be sure to analyze your client’s criminal record

carefully, bearing in mind all the potential grounds of deportability that could apply to a particular offense. 2. Judicial finding of a violation of a domestic violence protective order Section 237(a)(2)(E)(ii) provides: (ii)Violators of protection orders Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. In sum, a civil or criminal court finding that a noncitizen violated the part of a domestic violence protection order that is designed to protect against threats of violence, repeated harassment, or bodily injury, will serve as a basis for deportation. However, the conduct violating the order must have occurred after admission and after September 30, 1996. Any judicial finding of a violation of a domestic violence “stay-away” order is likely to be held a basis for deportability—even if the violation involved minor, non-malicious conduct. In many cases after a domestic disturbance, a court will issue a so-called “stay-away” order that requires the subject, e.g., to keep 100 feet away from the other person, to not have any telephone contact, etc. This may appear in a formal protective order or as a condition of probation after conviction of some offense. A judicial finding that even the most minor behavior constituted a violation of the stay-away order might be a basis for deportation. In Matter of Strydom, 178 the BIA referred approvingly to a Ninth Circuit case where the violation consisted of walking a child partway up a driveway after a visit, instead of letting the child off at the curb. The reasoning is that it is sufficient that the conduct violates the part of the order that is designed to protect against violence or repeat harassment, even if the conduct itself did not include violence or repeat harassment. Because this is a deportation ground, the government has the burden of proof. The categorical approach should be held to apply, 179 so the government should have to prove, by clear and convincing evidence, first that the protective order was a domestic violence protective order, and second that a court found that the portion prohibiting repeated harassment, threats, or injury was violated. Note that some states permit a protection order to include sections that relate to child support, court costs and attorney fees, and compensation for lost earnings; a finding that this

Chapter 5

178

25 I&N Dec. 507, 510 (BIA 2011), citing to Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009). See, e.g., Alanis-Alvarado v. Holder, 558 F.3d 833, 836-837 (9th Cir. 2009), amending, with the same result, 541 F.3d 966 (9th Cir. 2008). 179

5-76

Tab Position 1

Immigrant Legal Resource Center June 2017

section was violated would not trigger removal. 180 This also should apply to requirements of anger management or domestic violence counseling. 181 Example: Edward got into a fight with an acquaintance, Mike. Mike is afraid of Edward, so he got a court to issue an injunction and stay-away order against Edward. A court found that Edward violated the order by telephoning Mike. Is Edward deportable?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

No. This is a violation of a stay-away order, but it is not a domestic violence protective order and so it does not come within § 237(a)(2)(E)(i). Example: Julia and Maria are married. After a fight, Julia gets a temporary restraining order against Maria that requires Maria to do two things: attend anger management classes and stay 500 feet away from Julia. A court will make a finding that Maria violated this protective order. For immigration purposes, does it matter what conduct the court cites? It might make a big difference. At least one court has opined that failure to attend anger management classes would not have this result. 182 (Although anger management training in general is related to reducing violence and harassment, this would appear to be an overly broad reading of the deportation ground.) But even safer would be if Maria were found to have failed to comply with a provision relating to paying child or spousal support or visitation, restitution for damages or other events. Example: Harvey is charged in criminal court with misdemeanor violation of a family court order because he approached his ex-wife. He pleads not guilty to that charge, and pleads guilty to a different charge such as disturbing the peace or simple battery. While there is no case on point, under the plain language of § 237(a)(2)(E)(ii) statute he should not be found deportable, because the court did not make a finding that he violated the order. Note that this ground does not require a criminal conviction. A civil finding by a family court or arguably even a delinquency court will suffice. 3. Crime of child abuse, neglect, or abandonment A noncitizen is deportable if, after admission and on or after September 30, 1996, he or she is convicted of a “crime of child abuse, child neglect, or child abandonment.” INA § 237(a)(2)(E)(i). a. Definition of child abuse, neglect, or abandonment Unfortunately, the BIA has declined to provide a specific definition of child abuse, reasoning that there are too many different types of state endangerment-type child abuse statutes for such a definition. 183 Instead, it has stated that it will analyze such child endangerment statutes on a stateby-state basis. This makes it difficult to predict which state offenses will or will not be held

180

See, e.g., discussion in Alanis-Alvarado v. Holder, 558 F.3d at 839. See, e.g., discussion in Szalai v. Holder, 572 F.3d at 980. 182 See Szalai, supra. 183 Matter of Soram, 25 I&N Dec. 378 (BIA 2010). 181

Chapter 5

5-77

deportable, and requires you to carefully compare the statutes that the BIA has discussed, with the statute at issue in your case. In its first decision on the subject, the BIA defined “child abuse” as any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that results in the maltreatment of a minor or that impairs the minor’s physical or mental well-being. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). This includes offenses involving infliction of physical, mental, or emotional harm, direct acts of sexual contact, and any act that involves the use or exploitation of a minor, such as inducing him or her to engage in sexually explicit acts or to commit serious crimes, such as drug trafficking. This ground of deportation is not limited to parents or guardians committing the acts of abuse, but includes anyone who commits a child abuse offense. Matter of Velazquez-Herrera at 513. The BIA held that federal courts owe deference to this definition. 184 Because the BIA definition is so broad, many offenses against children could fall within the term “child abuse.” In fact, the BIA held that the “definition is comprehensive enough to subsume most, if not all, crimes of ‘child neglect.’” Matter of Velazquez-Herrera at 512. In a subsequent decision, the BIA affirmed that the definition provided in Matter of Velazquez encompasses a crime of child abuse, neglect, and abandonment. Matter of Soram, 25 I&N Dec. 378 (BIA 2010). In Matter of Soram, the BIA held that a Colorado statute that punishes a person who “permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health” is a crime of child abuse. In so doing, the BIA stated that it found “no convincing reason to limit offenses under section 237(a)(2)(E) of the Act to those requiring proof of actual harm or injury to the child.” Matter of Soram, at 381. The BIA found that the Colorado child endangerment statute fit within the statutory definition of child abuse as an “act or omission that constitutes maltreatment of a child,” and that it required a knowing or reckless mental state, which is sufficient, under Matter of Velazquez-Herrera, to fit within the definition of child abuse. In Soram, the BIA focused on the state court’s interpretation of the “threat of injury” language in the Colorado statute, reasoning that the offense required “at least a realistic probability that the child’s life or health will be endangered.” Matter of Soram, 25 I&N Dec. at 385 (emphasis in original). The BIA observed that “Colorado courts have repeatedly emphasized the importance of the word ‘unreasonably,’ finding it to be synonymous with acting ‘without justifiable excuse.’” The risk of harm covered in this Colorado statute, therefore, was deemed sufficient. In Matter of Mendoz-Osorio, 26 I&N Dec. 703, 710 (BIA 2016), the BIA again returned to the definition and contrasted child endangerment statutes from New York and California. It held that the child endangerment statute at New York Penal Code § 260.10(1), which prohibits “knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child,” is categorically a crime of child abuse, whereas the child endangerment statute at California Penal Code § 273a(b), which prohibits placing a child “in a situation where his or her person or health

Chapter 5

184

The BIA found that the term “crime of child abuse” is ambiguous and that it is the BIA’s duty to “resolve any ambiguities and fill any statutory gaps.” It found it significant that in the same deportation ground, Congress defined “crime of domestic violence” with great specificity but left “crime of child abuse” undefined. Matter of Velazquez-Herrera, at 507-8.

5-78

Tab Position 1

Immigrant Legal Resource Center June 2017

may be endangered,” is not categorically a crime of child abuse (emphasis supplied). See Mendoza-Osorio at 704-711. Describing why Cal. P.C. § 273a(b) is not a crime of child abuse, the BIA relied on the Ninth Circuit’s analysis of that offense in Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009)]. The Board found that the California statute

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.” Id. at 1037-38. In this regard, [Fregozo] cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.” Id. Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. Mendoza-Osorio, 23 I&N Dec. at 710. Advocates might also explore arguments contesting the BIA’s definition of child abuse. See, for example, the concurrent opinion by Board member Filippu in Matter of Soram, arguing that the generic definition of “child endangerment” requires a custodial relationship,185 in contrast to the holding in Velazquez-Herrera, which found that the generic definition of child abuse is not limited to offenses committed by parents or those acting in loco parentis. 186 Note, however, that the courts may be likely to defer to the BIA for this definition. 187 b. Age-neutral offenses (which do not have a minor victim as an element) In Matter of Velazquez-Herrera, supra, the BIA held that although the term “crime of child abuse” is subject to the categorical approach, it can include an offense that does not have any element relating to age of the victim, as long as documents reviewable under the modified categorical analysis conclusively prove that the victim was a child. Under this reasoning, conviction of a violent offense that applies to victims regardless of age—e.g., a regular assault or battery statute—will be a deportable “crime of child abuse” if the record establishes that the victim is a minor, even though that fact was not required for guilt. In Velazquez-Herrera, the Board held that the conviction under a general Washington assault statute could have been held a crime of child abuse, but was not because the record of conviction in the case did not conclusively prove that the victim was under age 18. This holding should be deemed overturned, because it violates subsequent Supreme Court precedent governing the categorical approach. The phrase “crime of child abuse” is a generic definition that is subject to the categorical approach, not the circumstance-specific approach. 188 185

25 I&N Dec. at 388. Matter of Velazquez-Herrera, at 513. 187 See, e.g., Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009) (stating that federal courts should extend Chevron deference to the BIA on this matter). 188 The BIA acknowledged that “crime of child abuse” should be subject to the categorical approach in Velazquez-Herrera, at 514-15. (The Board also found that it must apply that approach in the instant case, since it originated in the Ninth Circuit. Id.) This is consistent with Supreme Court factors setting out when an offense is subject to the categorical rather than the circumstance-specific approach. See discussion at 186

Chapter 5

5-79

Using the categorical approach, an offense would have to have a minor victim as an element, in order for it to be a crime of child abuse. See §§ 5.5–5.7. Counsel should argue that no age-neutral statue can cause deportability under this ground, and appeal any ruling to the contrary. As a back-up argument, however, counsel also can argue in the alternative that the record of conviction in the particular case does not conclusively prove that the victim was under age 18. The Velazquez-Herrera opinion, at 516-17, presents a good example of this analysis. 4. Conviction for stalking A noncitizen who, after admission to the United States and on or after September 30, 1996, was convicted of “a crime of stalking,” is deportable under the domestic violence ground. INA § 237(a)(2)(E)(i). Unlike the domestic violence and child abuse provisions, this ground of deportation, does not seem to require that that it be committed against a protected victim. At least one court has held that the stalking provision is not unconstitutionally vague on its face or as applied. Arriaga v. Mukasey, 521 F.3d 219 (2nd Cir. 2008). The BIA set out a generic definition of stalking for purposes of INA § 237(a)(2)(E)(i), in Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012). The Board found that California Penal Code § 646.9 is categorically a deportable stalking offense, because it contains the following elements: “(1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual, (3) with the intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death,” and (4) either the individual was actually placed in fear of injury or death, or a reasonable person under the circumstances would have been, or both.” In regards to the fourth element, the BIA found it unnecessary to decide the particulars of the element because the California (and federal) stalking statute required that both the subjective and objective requirement be met for a conviction. Other Immigration Consequences. Convictions described in INA § 237(a)(2)(E) may trigger more than just the domestic violence ground of deportability. A conviction of rape or sexual abuse of a minor is an aggravated felony, regardless of the sentence or felony/misdemeanor classification. If a one-year sentence was imposed for a crime of domestic violence, that is an aggravated felony as a crime of violence. A conviction of spousal abuse or child abuse may also be a crime of moral turpitude, depending upon the type of offense. B.

Prostitution and Commercialized Vice 1. Prostitution

Chapter 5

A noncitizen is inadmissible, but not deportable, if he or she comes to the United States to engage in prostitution or has “engaged in prostitution” within the last ten years. INA § 212(a)(2)(D)(i). No § 2.6. Also, in Nijhawan, the Supreme Court stated that the similar phrase “sexual abuse of a minor” is “one of several aggravated felony offenses that ‘must refer to generic crimes.’” Nijhawan v. Holder, 557 U.S. 29, 36 (2009).

5-80

Tab Position 1

Immigrant Legal Resource Center June 2017

conviction is required. This ground includes prostitutes and people who work with them in the business, but not customers. Matter of R.M., 7 I&N Dec. 392 (BIA 1957). This provision will apply even if the person engaged in prostitution in a country where it is legal. 22 CFR § 40.24(c).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A single act of prostitution does not trigger this ground. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of T-, 6 I&N Dec. 474 (BIA 1955). Rather, “prostitution” is defined as engaging in a pattern or practice of sexual intercourse for financial or other material gain.189 Engaging in prostitution does not encompass sexual conduct that falls short of intercourse, such as engaging in “lewd acts for a fee” where lewd acts includes conduct other than intercourse. 190 A noncitizen is also inadmissible, but not deportable, if he or she attempts to procure or import prostitutes, or receive the proceeds of prostitution. INA § 212(a)(2)(D)(ii). Solicitation of a prostitute by a customer does not fall within ground of inadmissibility for procuring a prostitute. This ground only applies to persons who engage in the business of obtaining prostitutes for use by others, not to isolated incidents of people hiring a prostitute. Matter of Gonzalez-Zoquiapan, above. Other Consequences of Prostitution. Prostitution is a crime involving moral turpitude, whether lewd acts or intercourse is involved. The Board has noted that it has not addressed the question of whether hiring a prostitute is a crime involving moral turpitude, Matter of Gonzalez-Zoquiapan, above, but the Ninth Circuit has held that it is, 191 and in some areas DHS is charging this. Conviction of some offenses involving running prostitution or other sex-related businesses are aggravated felonies. See INA § 101(a)(43)(I), (K). A noncitizen is deportable who has been convicted of importing noncitizens for prostitution or any immoral purpose. INA § 237(a)(2)(D)(iv). Relief. Persons inadmissible under this section can apply for a waiver under INA § 212(h), without the requirement of showing extreme hardship to a relative. Like other removal grounds, prostitution also can be waived with § 212(c) relief or LPR cancellation. Noncitizen victims of alien smuggling who were forced into prostitution, or who are victims of any serious crimes, may be able to apply for temporary and ultimately permanent status under the “T” or “U” visas. See INA § 101(a)(15)(T), (U). 2. Commercialized Vice INA § 212(a)(2)(D) also bars admission to anyone coming to the United States to engage in “unlawful commercialized vice,” a term which is not defined, but would include, for example, illegal gambling. 189

5-81

Chapter 5

Matter of Gonzalez-Zoquiapan, supra. See also State Department regulations at 22 CFR § 40.24(b) which defines prostitution as “engaging in promiscuous sexual intercourse for hire …” that “must be based on elements of continuity and regularity, indicating a pattern of behavior of deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.” 190 Matter of Gonzalez-Zoquiapan, supra. See also Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (holding that prostitution for immigration purposes only encompasses offering sexual intercourse for a fee, as opposed to other sexual conduct). 191 Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012).

C.

Total Sentence of Five Years for Two or More Convictions

Noncitizens are inadmissible under INA § 212(a)(2)(B) if they have been convicted of two or more offenses of any kind (except purely political offenses), and the aggregate time of the sentences to confinement “actually imposed” for those convictions add up to five years or more. For example, a person who was sentenced to two years for one conviction and four years for another would be inadmissible, regardless of how much time he or she actually served. Note that this ground of inadmissibility requires at least two convictions. Example: John was convicted of embezzlement and sentenced to five years in prison. Is he inadmissible under INA § 212(a)(2)(B)? NO, because he has only one conviction, even though the sentence was five years. Note that under this ground, except for purely political offenses, it does not matter what kind of offense was involved or whether or not the crimes were part of a “single scheme of criminal misconduct.” NOTE: There is no parallel ground of deportability to INA § 212(a)(2)(B). D.

Traffickers in Persons

If the government knows or has “reason to believe” an individual has been involved in “severe” forms of human trafficking, the individual is inadmissible under INA § 212(a)(2)(H)(I). “Severe” trafficking refers to sex trafficking of persons under the age of 18, or trafficking of any persons who are forced by the traffickers to work as indentured labor or slaves. This ground of inadmissibility was added by the Trafficking Victims Protection Act of 2000. It applies not only to the trafficker but also the person’s spouse, son or daughter if they received financial or other benefit from the trafficking and if they are seeking admission within five years of receiving the benefit. Sons and daughters who were under 21 at the time of the trafficking are not subject to the bar. § 5.14 Clearing Up a Criminal Record In many cases, it is possible to erase a criminal conviction and clear up the person’s record. We have already discussed dispositions that do not equal a conviction in the first place. They are juvenile findings, a case on direct appeal in some jurisdictions, an alternative to a conviction that does not require a guilty plea or finding of guilt, a conviction vacated for constitutional or other legal error, or in some jurisdictions, an infraction. See § 5.3. This discussion is different: it concerns how to get rid of a criminal conviction once you have one. The discussion is not very detailed, since the law of each state is different, and state laws are different from federal law. You will need to research the law in your state. But you can keep a few principles in mind.

Chapter 5

A.

With Some Exceptions, Expungement and Other “Rehabilitative” Post-Conviction Relief Has No Effect in Immigration Proceedings

Different states provide different legal ways that a person can clean up his or her criminal record and “erase” a prior conviction even if there was no legal error in the conviction. These processes often are based on the person successfully completing probation or meeting other requirements.

5-82

Tab Position 1

Immigrant Legal Resource Center June 2017

These are known as forms of “rehabilitative relief.” In 1999, the BIA reversed 50 years of Attorney General precedent and held that “expungements” and other rehabilitative relief do not eliminate a conviction. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Currently a person who pled guilty and was required to pay a fine, undergo probation, go to jail, or some other penalty has a conviction for immigration purposes (with two exceptions, discussed below). Immigration authorities will hold it a conviction even if the state court or state law says that there is no conviction due to an expungement, deferred adjudication program, or diversion program that required a guilty plea. For example, in some states as long as the person completes probation, goes to counseling or fulfills other requirements, the state court will announce that the plea was withdrawn, the “charges have been dismissed,” the case is over, and there is absolutely no conviction or even arrest record under state law. The immigration authorities will not accept this: they won’t care what the state court or state law says. Matter of Roldan was very serious news for thousands of immigrants who were counting on the fact that their past minor convictions had been erased and they could qualify for immigration status, or to keep the immigration status that they have. Because this decision has had such a great impact on noncitizens, be sure to advise all clients about this. In the past, someone may have told them that their expunged conviction would cause no problem. Example: Misha immigrated to the United States in 1999. In 2001, he is arrested for shoplifting, which carries a potential sentence of a year in jail. Misha agrees to plea nolo contendere to avoid any jail time and is given 90 days probation. After completing his probation, Misha’s charges are dismissed. Unfortunately for Misha, he has become deportable because within five years of admission he has been convicted of a crime of moral turpitude with a potential sentence of a year. Misha stands a good chance of being deported for a relatively minor crime. His situation is not unusual and clearly illustrates the harsh consequences that results when federal law refuses to give effect to state dismissals of convictions for rehabilitative purposes. It is useful to bring the terribly harsh effects of this rule to the attention of policy makers and legislators, so that they can understand the impact of the laws that they have passed. This can be done through stories in the press or through direct visits with legislators. There are at least two exceptions, where rehabilitative is effective in immigration proceedings. Exception: DACA. USCIS policy for Deferred Action for Childhood Arrivals (DACA) provides that an expungement of a conviction will remove the conviction as an absolute bar to eligibility for DACA. While the USCIS may still deny in its discretion, an expunged conviction will not bar eligibility for this specific program. Exception for Some Drug Offenses. This exception applies only in the Ninth Circuit and only for convictions received on or before July 14, 2011. 192 There, an expungement or other “rehabilitative relief” such as deferred adjudication will eliminate a first conviction for certain 192

5-83

Chapter 5

The Ninth Circuit en banc overruled its decade old rule in Lujan-Armendariz v. INS, but the old Lujan rule will remain helpful to those who were convicted before July 14, 2011. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc). For more information, see ILRC’s practice advisory on the effect of the Nunez-Reyes decision, available at: www.ilrc.org/crimes.

minor drug offenses such as simple possession, possession of drug paraphernalia, and giving away a small amount of marijuana, although not for being under the influence. 193 This also applies to foreign relief for a first foreign conviction of these offenses.194 The BIA will not apply this beneficial rule in immigration hearings held outside of the Ninth Circuit.195 There are two disqualifiers. First, even if rehabilitative relief is obtained under state law, if the individual violated the conditions of his or her probation, or the terms of the rehabilitative relief, the expungement is not effective. Second, if the person benefitted from a pre-plea diversion program before getting the expungement, that expungement is not effective. 196 B.

Any Conviction—Even of a Drug Offense—Can Be Vacated or Erased by an Extraordinary Writ; This Requires the Help of an Attorney

Most courts will find that a conviction that is vacated for cause (because of constitutional or other legal error in the conviction) no longer exists for immigration purposes. A conviction is vacated because it never should have happened in the first place. For example, a person’s constitutional rights are violated, e.g., they received ineffective assistance of counsel,197 or other conditions are not met. In 2010, the United States Supreme Court held that the Sixth Amendment of the U.S. Constitution requires defense counsel to provide affirmative, competent advice to a noncitizen defendant regarding the immigration consequences of a guilty plea. Failure to provide this relief may provide a basis to vacate the conviction for ineffective assistance of counsel. See Padilla v. Kentucky, 599 U.S. 356 (2010). In these cases, federal and many state laws allow for the conviction to be vacated, if prejudice is shown. Note that an immigrant who was not advised of the immigration consequences of her plea must have a legal means to go back into court to raise this claim in the jurisdiction where the conviction took place. You should consult with an expert in criminal law to see if the relevant state laws allow an immigrant to raise such a claim. A writ of habeas corpus, writ of error coram nobis, motions to vacate, and other motions can be used to vacate convictions depending on the jurisdiction. Immigration authorities generally recognize that this procedure eliminates any conviction, including for a drug offense. Vacating a conviction can be an expensive and complicated process. If your client has a drug conviction or any other convictions where there is no immigration solution you should immediately refer him or her to a pro bono program or a private criminal attorney who is expert at criminal law to see if the conviction can be vacated. Do not delay in referring the case to such an expert! Because there are often strict timelines for obtaining post-conviction relief and this process can take some time, it must be pursued as soon as possible.

Chapter 5

193

Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) (possession); Cardenas-Uriarte v. INS, 227 F.3d 1132 (BIA 2000) (lesser offense) and 18 USC § 841(b)(4) (giving away a small amount of marijuana); Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009) (possession of drug paraphernalia). See NunezReyes, supra, regarding under the influence. 194 Dillingham v. INS, 267 I&N Dec. 996 (9th Cir. 2001) (foreign offense). 195 Matter of Salazar, 23 I&N Dec. 223 (BIA 2002). 196 Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009). 197 The U.S. Supreme Court held that criminal defense attorneys commit ineffective assistance of counsel if they wrongly advise their noncitizen clients of the immigration consequences of crimes. Padilla v. Kentucky, 599 U.S.356 (March 31, 2010).

5-84

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 5.15 The Good Moral Character Requirement An applicant must establish “good moral character” in order to receive several forms of relief, including cancellation of removal for non-lawful permanent residents under INA § 240A(b), naturalization to U.S. citizenship, benefits under the Violence Against Women Act (VAWA), one of the forms of voluntary departure, and registry. Depending upon the relief sought, the person must prove good moral character for a certain period of time (three or five years for naturalization, ten years for cancellation of removal, etc.)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Good moral character has two components. First, the applicant must avoid being automatically disqualified by coming within one of the statutory bars to establishing good moral character listed in INA § 101(f). Second, the applicant must convince the judge or examiner to make a discretionary decision that he or she really is a person of good moral character. INA § 101(f) provides that an applicant is statutorily barred from establishing good moral character if he or she comes within many of the inadmissibility grounds relating to crimes (e.g., moral turpitude, drug conviction or “reason to believe” trafficking, alien smuggling, prostitution, polygamy.) In addition, a person is barred who has actually spent 180 days in jail for a conviction (or a combination of convictions) during the period for which good moral character must be shown. Habitual drunkards and persons who have provided false sworn testimony to obtain immigration benefits also are barred. The person is permanently barred from establishing good moral character if he or she has been convicted on or after November 29, 1990 of an aggravated felony, or convicted of murder at any time. In addition to the statutory bars, there are “discretionary bars” to showing good moral character. At the end of INA § 101(f) there is a “catch-all” provision which provides that a person who does not fall into an enumerated statutory ground can still be found to lack good moral character. While a false claim to U.S. citizenship, for example, is not listed as a statutory bar, such an act may indicate a lack good moral character under this provision. Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008). The federal regulation at 8 CFR § 316.10 provides a list of specific acts that can lead to a finding of a lack of good moral character under this catch-all category, in the naturalization context. This includes willful failure to pay child support, commission of adultery where a “viable” marriage was destroyed as a result, and committing unlawful acts for which a person is not convicted, among other things. Although this regulation is specific to naturalization, good moral character is generally defined the same way throughout immigration law. In determining whether the person has a good moral character, the “standards of average citizens” in the community a person resides are applied. Since “community standards” change over time, so does the definition of good moral character. Documentation of what appears to be a person’s plain and ordinary life can be great evidence of good moral character. For example, letters from work supervisors and copies of paycheck stubs can show a steady, hardworking, productive member of society. In addition, letters from volunteer supervisors and teachers can also be used to document good moral character. Special requirements for good moral character to qualify for naturalization are discussed more fully in the ILRC’s Naturalization and U.S. Citizenship: The Essential Legal Guide.

Chapter 5

5-85

Chapter 5

Tab Position 1

=

CHAPTER 6 REPRESENTING DETAINED CLIENTS IN BOND HEARINGS

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12

Introduction to the Immigration Detention System ............................................ 6-1 Representing Detained Clients: Special Challenges........................................... 6-3 Securing Release for Your Client ....................................................................... 6-6 Avoiding Initial Custody by ICE: ICE Detainers ............................................... 6-7 Custody Determination....................................................................................... 6-8 Venue and Timing: Where and When to Request a Bond Hearing .................. 6-11 Mandatory Detention........................................................................................ 6-11 Challenging Mandatory Detention and Prolonged Detention .......................... 6-15 Children and Bond ........................................................................................... 6-23 Preparing for the Bond Hearing ....................................................................... 6-24 Proving the Bond Case ..................................................................................... 6-25 Posting the Bond .............................................................................................. 6-31

§ 6.1

Introduction to the Immigration Detention System

Immigration detention is the policy of the Department of Homeland Security (DHS) of detaining noncitizens in federal or contracted jails, during their removal proceedings. In 1996, the United States enacted legislation that dramatically expanded the use of detention. The Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA) expanded mandatory detention without bond to large categories of non-citizens. Since then, immigration detention in the United States has steadily increased. In 2011, the U.S. Government detained a record-breaking 429,000 immigrants in immigration custody in a hodgepodge of over 250 facilities, at an annual cost of about $2 billion a year. 1 Figures have ebbed and flowed since then, 2 though regrettably, the current Administration shows no sign of rolling back on detention. Few are excluded from immigration detention. Immigrants in detention include adults, children, undocumented immigrants, immigrants with lawful status, survivors of torture, asylum seekers, and other vulnerable groups. Many immigrants held in detention have no criminal record at all. Those that do have past convictions, generally already paid their debt to society, completed their criminal sentences, and are now being detained for immigration purposes alone. This chapter

1

See www.aclu.org/immigrants-rights/detention. According to DHS, 352,882 individuals were placed in immigration detention in 2016. DHS releases end of fiscal year 2016 statistics (12/30/2016). See www.ice.gov/news/releases/dhs-releases-end-fiscal-year2016-statistics. 2

6-1

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

focuses on adult detention. However, advocates should bear in mind that practice, procedure and even forms of relief are different for detained juveniles in immigration proceedings. 3 Abuses in conditions of confinement are not infrequent and take a psychological and sometimes physical toll on clients. The treatment of detainees is governed by a national set of Performancebased National Detention standards. 4 However, these standards are not binding and adherence to these guidelines may vary. Indeed, nonprofit organizations have seen reports of abuses including inadequate health care, physical and sexual abuse, overcrowding, inability to visit with family members and problems with phone access. 5 Additionally, advocates should explore any state or national laws available to remedy immigration abuses. Once your client is detained by ICE, your first priority should be to get your client out of detention. Aside from the psychological and financial toll that detention will have on your client and their family, detention will also make the case much more difficult to litigate. This chapter will focus on representing detained clients and will provide a brief overview of securing release from detention through bond and other measures. § 6.2

Representing Detained Clients: Special Challenges

Immigration detention carries special challenges in removal defense. Immigration detention makes it extremely difficult to gain access to your client and also makes it difficult to regularly communicate with your client. Additionally, once your client is placed on the detained immigration docket, the case is placed by the court on a fast track system. The person’s removal hearings and appeals will come up rapidly. This gives you less time to prepare, which can affect the outcome of the case. Finally, it’s likely that you’ll have to contend with video teleconferencing (VTC) in your jurisdiction. The following will detail how to grapple with these challenges. A.

Access to Clients

Litigating a case for a detained client will take special planning and preparation. Clients are detained in facilities often hours away from major cities where legal representation may be located, making client communication and case preparation difficult at best. Additionally, detention often takes a severe psychological toll on clients. In consideration of these factors, keep the following points in mind as you prepare your client’s case. Familiarize Yourself with the Detention Facility. First and foremost, advocates should become acquainted with the process and procedures at the facility where their client is detained. For 3

See Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth, 4th. ed. (2015), available at: www.ilrc.org/publications/special-immigrant-juvenile-status-0 (accessed April 2017). 4 Different facilities may adhere to different versions of the detention standards. Advocates will need to refer to the contract of a given facility to see which version of the standards govern. The Performancebased National Detention standards, most recently revised in 2016, are available at the following link: www.ice.gov/detention-standards/2011. Moreover, advocates should watch out for new facilities, which under the Trump Administration, may be subject to even lower standards. Trump Plan Would Curtail Protections for Detained Immigrants, Caitlin Dickerson, New York Times (April 13, 2017). 5 For more information regarding conditions of confinement, see generally, “Conditions in Immigration Detention, Detention Watch Network, available at: www.detentionwatchnetwork.org.

6-2

example, at certain facilities your client may have access to a phone more easily than at others. At certain facilities you may have full contact visits whereas in other facilities you may be entirely separated by a partition. Legal visitation hours may also vary. Contact the detention facility for this information. Limited Time with Clients. A good advocate will plan ahead for some of the logistical problems with representing a detained client. For example, take full advantage of client visits. Client calls are expensive, can be difficult to coordinate, and the phone system may not be reliable. As such, approach each client visit as one of your few opportunities to get information about your client and his or her case. Prepare a checklist of documents you need signed and information that you need from your client prior to visiting. In particular, anything that requires a client signature should be obtained during client visits. It is extremely difficult to obtain a client signature on short notice when your client is detained. If you have the time, mail is another option or you may be able to get a faxed signature in limited circumstances. Client Communication. If you are a private attorney, your client should be able to call you collect or through a calling card, depending on the facility. If you are on the list of EOIR free legal service providers, 6 your client may be able to call you for free using an automated service provided by ICE. Check with the detention facility to see if this is an option. One can apply to be placed on this list. 7 Additionally, in certain jurisdictions such as in the Midwest, nonprofit agencies are able to schedule free conference calls with their clients. Check with the detention facility or with your local AILA-ICE liaison to see if this is an option. Attorneys should remember that all communication—whether written, over the phone, or in person—is protected by attorney-client privilege and should not be monitored. To the degree that jail staff ever try to place you in the family visitation areas, insist on the attorney-client visitation areas, as communication in those areas should not be monitored. Further, clearly write “attorney-client privileged” on all mail. Effects of Confinement. Advocates should not underestimate the effects of confinement on a client during his or her immigration case. In certain facilities, clients may have limited recreation time and may spend the majority of their day detained. Worse still, some facilities place certain detainees in solitary confinement. Aside from being mindful of your client’s mental and health concerns, provide your client realistic expectations about confinement. Case outcomes are contingent on factors outside of an advocate’s control, such as judges and the position taken by ICE in their case, 8 and an advocate should never guarantee that a client will be released or will win his or her case. Also, warn your client about unexpected delays. Cases may be delayed due to a cramped docket or other unforeseen circumstances. Your client will do better in detention and you will build trust with your client if you give him or her realistic expectations. 6

Available at www.justice.gov/eoir/probono/states.htm. Application information available at www.justice.gov/eoir/probono/GetonList.htm. 8 “Trial attorney” refers to the prosecuting attorney from the Office of Chief Counsel representing ICE in immigration court. Usually the prosecuting attorney is an Assistant Chief Counsel (ACC). 7

6-3

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

Special attention to conditions of confinement should be paid when there are physical or mental health issues. Inadequate treatment for certain physical or mental health issues can affect your client’s ability to recall important facts and to testify competently at a hearing. Further, there are frequent cases of inadequate health care in detention facilities. Consult with a health care professional if you think your client is receiving inadequate health care. Once confirmed, advocacy may be done with the detention facility or the local ICE office in charge of custody, depending on the issue. PRACTICE TIP: Be Prepared for Clients in Custody! Get important signatures early! Because access to your client will be limited, take advantage and plan ahead when meeting with your client. Create an intake sheet to collect vital information, including contact information for friends and family who can provide additional assistance. See Appendix D for a sample. Create a checklist of documents that you need, which will vary depending on your client’s case, as some of these documents may require your client’s signature. 9 •

Keep a client-signed “Notice of Entry of Appearance as Attorney or Accredited Representative” Form G-28 on file. ICE, and particularly custody officers, will require this form before discussing your client with you. It is a good practice to have your client sign more than one G-28 so that you can provide them to the various immigration offices, such as the enforcement branch of ICE and USCIS.

•

Remain friendly with detention facility staff. On occasion, you may be able to call in favors, including getting forms faxed and signed.

•

To maximize visitation time, give your client homework. One thing your client has is time, so have your client prepare for your visits just as much as you do. For example, if you are planning a visit to finalize an application for a form of relief that asks detailed questions about your client’s employment history, have your client prepare that information before you arrive.

•

Request a fee waiver for any applications for relief by submitting Form EOIR-26A. Many detained clients are indigent and will be granted a fee waiver for what can be extremely costly fees related to certain applications and motions. This form needs to be signed by your client, so make sure to plan ahead for the signature.

•

Protect Attorney-Client Privilege. Label all legal mail “attorney-client privileged.” Ensure that client interviews are in a private area where conversations are not monitored.

•

Locating Your Client. If you have a difficult time locating a potential client, use ICE’s Online Detainee Locator System (https://locator.ice.gov/odls/homePage.do) or contact your local Enforcement and Removal Operations (ERO) office.10 Do not contact a local office and provide personal information about a client if you are not certain he or she is in ICE custody.

9

For a sample checklist for LPR Cancellation, see page 22 of Cancellation of Removal for Legal Permanent Residents, available at www.firrp.org/resources/prose/. 10 To locate your local Enforcement and Removal Operations (ERO) Office, see the following link: www.ice.gov/contact/ero/.

6-4

B.

Expedited Proceedings

If a client is detained, his or her immigration case will be expedited. While cases on the nondetained docket can take years to adjudicate, detained cases are sometimes resolved within a matter of months. Since detained cases are expedited, advocates must work this timeline into their case preparation. Relief applications and client interviews should occur early on, as these can be time-consuming and trigger additional requests for information. Keep a checklist of documents that you need to request early in every case. Documents which should be requested early include: •

Criminal documents, including police reports, criminal dispositions, and probation documents. In particular, you will want more complete records for any criminal offenses, which may trigger deportability or inadmissibility concerns. To do this, request a copy of the file from the relevant court or obtain a copy of the file from the previous criminal defense attorney using a standard release of information.

•

Freedom of Information Act Requests (FOIA). FOIA requests are expedited in the detained setting, and this must be indicated in the request, though response time can still take several months. Expedited FOIA requests must be made in writing. Fill out the FOIA Form G-639 Request. 11 Include a cover letter making clear that the client is detained and that the request is expedited. Where possible, include a copy of the client’s notice to appear, next hearing date notice, and G-28 Notice of Entry of Appearance as Attorney or Accredited Representative. Mail the G-639, cover letter, and attachments to: FOIA Unit National Records Center PO Box 648010 Lee’s Summit, MO 64064-8010

•

Medical records are relevant if the client has mental health issues or physical issues that affect his or her case for example, if mental health issues were involved in the commission of a crime or medical issues are relevant to showing hardship. Medical records take weeks or months to obtain and generally require signed waivers by the client.

•

Employment records, tax records, and education records are sometimes necessary in bond cases or merits cases when discretion is at issue.

In many cases, you will need the help of the client’s family members and friends to help with document collection. It is always good to ask your client for names and contact information for those that can help with various tasks outside of custody. One of the few benefits to detention is that DHS will typically process biometrics, which would usually be done by the client outside of

11

See www.uscis.gov/files/form/g-639.pdf.

6-5

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

detention. Additionally, if the client is granted voluntary departure, DHS may arrange for return travel to the home country. To be sure, confirm with the deportation officer. C.

Video Teleconferencing (VTC)

Video Teleconferencing (VTC) 12 is a nationwide practice which refers to the use of video to conduct immigration court proceedings. Through VTC, the individual appears through a video feed from a remote location (for example, in the detention center) and the court including judge, and often the trial attorney, interpreter, etc., will be elsewhere. Here, it is important to take note of local practice to see where certain key actors will physically be during the hearing. For example, you and the interpreter might not be in the same location as your client, which introduces a host of challenges. You cannot easily and privately confer with your client or review documents if you are in different locations. While EOIR claims that VTC saves travel and time for immigration judges, allowing them to adjudicate more cases, 13 advocates have long pointed to severe due process concerns. VTC makes it difficult for representatives to consult privately with their client, inserts interpretation obstacles, and makes it difficult for judges to see respondents (raising issues with credibility, gauging demeanor and emotion), among other issues. Despite these concerns, VTC is prevalent in nearly every jurisdiction. § 6.3

Securing Release for Your Client

The first step in getting your client released from detention is identifying who is making the custody determination and what factors that party is taking into consideration in the release of your client. Generally speaking, ICE is the first agency making a decision regarding whether to detain your client. The most common way that individuals are detained by ICE is through contact with the criminal justice system, though individuals may be apprehended in other contexts as well. 14 Preventative advocacy here is key and it is important for immigrants to be well informed of their constitutional rights and how to assert them, if and when confronted by ICE agents. However, in the event of a detention, the next step is to argue for release. The following sections discuss how to advocate for release at various stages of detention. The most traditional form of release requested by counsel is release on bond, but ICE and courts also have the ability to release someone detained by ICE on conditional parole. Safeguarding Your Client’s Rights Once Apprehended by ICE. In the event that apprehension or contact with ICE is unavoidable, your client should be advised of their constitutional rights in order to mitigate immigration consequences. Clients should be advised of asserting their Fifth Amendment right to silence whenever questioned by any law enforcement official (criminal or ICE) regarding their immigration status or country of origin. When speaking with ICE agents specifically, clients should generally be advised not to speak or sign anything without their attorney present.

12

VTC is authorized by INA § 240(b)(2)(A)(iii) and 8 CFR 1003.25(c). Video Conferencing Fact Sheet, March 2009, EOIR’s Video Tele conferencing Initiative, Office of the Director, U.S. Department of Justice (March 13, 2009). 14 For up to date information regarding immigration enforcement practices, visit www.ilrc.org/enforcement. 13

6-6

§ 6.4

Avoiding Initial Custody by ICE: ICE Detainers

Sometimes advocates can intervene and prevent initial apprehension by ICE. While advocates have pushed back and won a wave of no ICE holds policies across the country, many jurisdictions still cooperate with ICE to locate and apprehend noncitizens. This cooperation occurs through information sharing programs such Secure Communities revived by the Trump Administration the Criminal Alien Program, 15 and the 287(g) program. 16 These programs result in information sharing between local law enforcement and ICE, which in certain circumstances can lead to the placement of an ICE detainer 17 or a request for notification of release date. During the Obama Administration, advocates succeeded in lifting immigration detainers or notification requests in limited circumstances. While such advocacy may be met with limited success under the Trump Administration, ICE legally still has the discretion to not detain an individual. As such, advocates may still consider lodging requests in compelling circumstances. Advocating to Lift an ICE Detainer. If an ICE detainer or notification request is placed on your client, you may advocate directly with ICE, thereby avoiding ICE custody and the initiation of proceedings against your client. In the circumstances below, advocates should attempt to lift the detainer or notification request. •

If Your Client Is Not Deportable: If your client has arguments that the arrest or conviction that resulted in possible custody does not make them removable, they should argue to have the ICE hold lifted. Special attention should be paid when the noncitizen is a lawful permanent resident (has a green card) or has parents or grandparents who are U.S. citizens.

•

If Your Client Was a Victim of a Crime or a Witness to a Crime: Aside from there being special immigration relief for these people, ICE actually states on the ICE detainer form that it should be notified if a subject falls into either of these categories. If the subject is willing to assist in the prosecution or investigation of the crime, the argument for release is stronger.

•

If There Are Outstanding Equities: Examples of outstanding equities include but are not limited to, the noncitizen having diminished capacity, children being left parentless if the noncitizen is detained, the noncitizen having extensive family in the U.S. with lawful status, the noncitizen being the sole wage-earner in the household, the noncitizen being particularly active in community, or the noncitizen having broad community support.

15

The Criminal Alien Program (CAP) is another information-sharing program between ICE and local law enforcement in which ICE physically goes into jails to find noncitizens through activities such as reviewing booking sheets or interviews. 16 The 287(g) program is a voluntary program where localities enter into a contract with ICE to have local law enforcement deputized in order to be able to carry out certain ICE activities. 17 ICE Detainers also known as ICE holds or Immigration holds. An ICE detainer is a voluntary request from ICE to local law enforcement, to detain a person for a limited period of time after release is due in their criminal case, until ICE is able to apprehend the person.

6-7

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

To Advocate to Lift an ICE Detainer. Contact your local Office of Enforcement and Removal Operations (ERO) community field liaison. Use the following link to identify the liaison for your region: www.ice.gov/about/offices/enforcement-removal-operations/ero-outreach/contact.htm. If you are an American Immigration Lawyers Association (AILA) member, you can additionally contact your local AILA chapter for assistance through the local AILA-ICE Liaison. Challenging an Unlawful Detainer. In some cases, you might determine that your client’s constitutional rights were violated in either the manner of arrest or execution of an ICE detainer. It is unlawful for law enforcement to hold a person longer than the 48-hour period allowed by regulation (which excludes weekends and holidays). For more information on fighting detainers and information obtained from your client as a result, consult ILRC and Ozment Law’s manual, Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings (www.ilrc.org). Proactively Obtain an Immigration Bond. If the above advocacy does not work, or if advocacy isn’t appropriate in a given case, an attorney can proactively reach out to the local ICE office to establish and pay an immigration bond. Thus, the client won’t be taken into immigration custody. This will likewise prevent the noncitizen from being transferred to a different jurisdiction for their immigration proceedings. § 6.5

Custody Determination

Once in ICE custody, there are two points at which an individual can attempt to secure release. The first is the initial custody determination by ICE, and the second is the custody redetermination by the immigration judge. The first happens as a matter of course whereas the second must be requested.

ICE

Immigration Judge

(First Custody Determination)

(Second Custody Determination)

Arrest

A.

Detention Center

Custody Determination by ICE

ICE custody determination at a glance: • •

Local ICE District Office makes initial custody determination. The DHS has the discretion to release immigrants on bond or on a form of conditional parole, including an Alternative to Detention (ATD) program.

When ICE assumes custody of an individual, an ICE officer makes the initial custody determination to determine if that person should continue to be detained or released on a bond,

6-8

parole, or under a supervised community custody program. 18 For those people eligible for release from detention, ICE may set an immigration bond of at least $1,500 following the person’s arrest and the initiation of removal proceedings. 19 ICE also may release a person on “conditional parole.” 20 The amount of bond set by ICE can be found on the document titled “Notice of Custody Determination” (Form I-286). See Appendix C. This amount can vary greatly depending on ICE’s determination of how likely it is that the person will appear at later hearings. Additionally, ICE may indicate that the person is either not eligible for bond and is held pursuant to mandatory detention, or, that they have chosen not to set a bond. In any case, your client may seek review of this determination in front of the immigration judge. PRACTICE TIP: An ICE agent can also exercise prosecutorial discretion. You can advocate to have your client released without the initiation of removal proceedings, if you believe there are strong positive factors or potential relief, such as a U visa. Supervised community custody programs are alternatives to both bond and detention, but include heavy monitoring and can be restrictive. In June of 2004, ICE announced a new pilot program providing a less restrictive alternative to detention, called “The Intensive Supervision Appearance Program” or ISAP. Under this program, aliens subject to detention may be offered an alternative in which they are closely supervised and/or subjected to electronic monitoring (bracelets) by a company specializing in such alternatives called Behavioral Interventions, Inc. A second alternative to detention program, called “Enhanced Supervision/Reporting” or “ESR” was first implemented by ICE in December 2007. Both ISAP and ESR are operated by outside contractors. A third program, simply titled “Electronic Monitoring” or “EM” is operated by ICE, and was also implemented in December 2007. This program operates in areas not covered by ISAP and ESR. Unfortunately, these programs can be highly restrictive, with heavy reporting requirements. Some individuals are expected to report weekly, with additional hours where they are required to be home, making it difficult to maintain a job or other daily activities. B.

Custody Determination by Immigration Judge

Immigration Judge Custody Determination at a glance: • • • •

Individuals not subject to mandatory detention can request a bond hearing before an immigration judge. Lowest bond judge can set is $1,500. Bond hearing or bond redetermination hearing must be requested. Generally, a judge cannot provide release on ATD programs.

After ICE has made the initial custody determination, the detained immigrant may seek review of the decision in front of the immigration judge (IJ). This is called a bond redetermination hearing, but is most commonly referred to as a bond hearing. The IJ may review both the amount set by ICE, as well as any determination that your client is subject to mandatory detention. It is particularly important for advocates to individually assess a client’s bond eligibility since ICE 18

8 CFR § 236.1(d), § 1236.1(d). INA § 236(a)(2)(A). 20 INA § 236(a)(2)(B). 19

6-9

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

may get this determination wrong. Always be critical if ICE has determined that your client is subject to mandatory detention. If ICE sets a bond but that bond is too high, the noncitizen may request a bond redetermination hearing before an immigration judge. 21 At the bond redetermination hearing the person asks the immigration judge to lower the bond set by ICE initially, the minimum of which is $1,500. Example: Manny is in custody, and his bond has been set at $10,000. His brother can come up with only $3,000 to get him released. Manny has a bond redetermination hearing. Through evidence, he persuades the judge that he is likely to come back for all future hearings, and the judge agrees to lower Manny’s bond to $3,000. Manny’s brother can now post the bond and Manny will go free. The judge, however, has the power to lower or increase the bond when making the redetermination. Thus, depending on the client’s equities and the assigned immigration judge, the client may want to assess whether a bond redetermination hearing is prudent. Example: Laura was convicted of a DUI 3 months ago, and was promptly apprehended by ICE. Laura was able to present a convincing case that she had extensive family support and a plan to avoid driving and drinking when she spoke with the enforcement officer in charge of her case. The officer was having a good day, and granted a $6,000 bond. Laura might want to gather resources to pay her bond instead of appearing before the notorious judge at her court known for setting high bonds. A person requests a bond redetermination by making a request verbally or in writing to the immigration judge. The noncitizen might request a bond hearing on their own at the time of ICE’s custody determination, by indicating they want to see the judge on the form entitled “Notice of Custody Determination” (Form I-286). See Appendix C. Some courts allow the verbal request by calling the court clerk and requesting that the court calendars a bond hearing, in addition to an oral motion in court. The noncitizen may also argue that the judge release him or her on conditional parole, otherwise known as release on recognizance. Immigration judges have traditionally denied that they have authority to grant this type of release. However, a class action lawsuit, Rivera v. Holder, 22 held that immigration judges are permitted to grant parole instead of a monetary bond. While only binding in Washington State, Rivera may be helpful in making this argument in in other jurisdictions. Post-Immigration Judge Bond Decision. Following the immigration judge’s bond decision, an additional request for bond will only be considered by the judge if “circumstances have changed materially since the prior bond determination.” 23 Such a request must be made in writing. Additionally, both the noncitizen and ICE can appeal the immigration judge’s custody determination to the Board of Immigration Appeals within 30 days. 24 To do so, reserve appeal at

21

See 8 CFR §§ 3.19, 236.1, 1003.19 and 1236.1. Rivera v. Holder, 307 F.R.D. 539, 553 (W.D. Wash. 2015). 23 8 CFR § 1003.19(e). 24 8 CFR § 236.1(d)(3)(i), § 1003.19(f); 8 CFR § 1003.38. 22

6-10

the end of the immigration bond hearing. While the bond appeal is pending, the case will continue as normal. § 6.6

Venue and Timing: Where and When to Request a Bond Hearing

Once the client has decided to request a bond or bond redetermination hearing, the next question is where to file such a request. Venue generally lies with the court having jurisdiction over the place of detention or with the court having administrative control over the case. 8 CFR 1003.19(c). PRACTICE TIP: Clients are sometimes transferred to different jurisdictions due to limited detention bed space. If you are concerned about your client being transferred, use 8 CFR 1003.19(c) as the basis for requesting a bond hearing in the venue where your client is detained. This may turn into a race to the courthouse if your client is detained in your jurisdiction but hasn’t yet been transferred! Regarding when the bond hearing may be requested, pursuant to INA § 240, an individual in removal proceedings may request a bond hearing at any time after the person is in ICE custody. You can ask for a bond hearing before an NTA is filed with the court or your client has his or her first hearing. 25 Exception: The immigration judge has no jurisdiction over a bond hearing for individuals who have not been issued and served an NTA in relation to removal proceedings pursuant to 8 CFR 1240. 26 Thus, there is also no jurisdiction over Visa Waiver Program individuals in asylum-only proceedings. The bond hearing may be requested orally or in writing. 27 § 6.7

Mandatory Detention

The threshold question in requesting a bond hearing or assessing bond eligibility is whether your client is subject to mandatory detention. A noncitizen subject to mandatory detention will not be able to request a bond. This determination may be made by ICE at the initial custody determination or by the immigration judge. However, an advocate should always do his or her own research and, where appropriate, challenge a mandatory detention determination. In particular, ICE agents who initially determine custody are not attorneys and sometimes get this assessment wrong. This section provides a basic overview of mandatory detention. A.

Mandatory Detention Overview

The harsh rules for mandatory detention went into effect on October 9, 1998. Under these rules, the following individuals are not entitled to a bond and must remain in detention while

25

8 CFR 1003.14(a). Matter of A-W-, 25 I&N Dec. 45 (BIA 2009). 27 8 CFR 1003.19(b). 26

6-11

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

removal proceedings are pending against them. 28 However, for a person to be subject to mandatory detention, arguably all four of the following criteria must be met: First, the person must come within certain crimes grounds of deportability or inadmissibility. See INA § 236(c)(1)(A)–(D) A. Persons who are inadmissible for having committed an offense described in INA § 212(a)(2) [crimes of moral turpitude and certain drug offenses]; Petty Offense Exception: If the individual has one crime of moral turpitude (CIMT), they may qualify for the “petty offense exception” and therefore not be subject to mandatory detention. To qualify, 1) the individual must have only one CIMT, 2) the individual must not have been sentenced to a term of imprisonment in excess of six months, and 3) the offense of conviction carried a maximum possible sentence of one year or less. 29 B. Persons who are deportable for having committed any offense in INA § 237 (a)(2)(A)(ii), 237(a)(2)(A)(iii) [aggravated felony], 237(a)(2)(B)[drug offense] 237(a)(2)(C)[firearms offenses], or 237(a)(2)(D) [crimes related to espionage]; Drug Offense Exception: If your client is deportable for an incident involving 30 grams or less of marijuana, your client is not subject to mandatory detention. 30 C. Persons who are deportable under INA § 237(a)(2)(A)(i) [has been convicted of a crime of moral turpitude that was committed within five years of admission] and has been sentenced to a term of imprisonment of at least one year; and D. Persons who are inadmissible under INA § 212(a)(3)(B) or deportable under INA § 237(a)(4)(B) [involved in terrorist activities]. Second, ICE must take the person into custody when the person is released from criminal custody. INA § 236(c) states that “the Attorney General shall take into custody any alien who” comes within these grounds “when the alien is released.” The application of the “when released” language has been a point of dispute. The Government has argued that in order to subject someone to mandatory detention, ICE does not have to take the person into custody immediately upon release from criminal custody. Rather, ICE argues that mandatory detention applies even if it picks the person up days, months, or years after release.

28

This section discusses mandatory detention for people who were within the United States when placed in removal proceedings. There are other rules governing detention of arriving aliens and people subject to expedited removal. See INA §§ 208.5 and 235(b)(1)(B)(iii)(IV) for the rules governing the mandatory detention of arriving aliens. Certain caselaw challenging prolonged detention also applies to arriving aliens. See, e.g., Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). Otherwise, arriving aliens make seek parole from detention. See CFR 235.3(b)(4)(ii). 29 See INA § 212(a)(2)(A) (II), 8 USC § 1182(a)(2)(A) (II). 30 For an in-depth discussion of these grounds, see Chapter 5.

6-12

The BIA agreed with this reasoning in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). The Second, Third, Fourth, and Tenth Circuit Courts of Appeal agree, 31 as do several district courts. 32 However, a growing number of federal courts have conversely held that “when released” requires ICE to detain the person immediately at the time of their release from criminal custody. Thus, the release must be from actual 33 criminal custody, and ICE cannot subject someone to mandatory detention when they pick them up in the community. Notably, the Ninth Circuit agreed in Preap v. Johnson 34 and Khoury v. Asher. 35 In these cases, the Ninth Circuit affirmed district court cases ordering bond hearings for individuals not detained immediately upon release in California and Washington states. However, individuals outside of these states but still in the Ninth Circuit are still entitled to bond hearings. Similarly, the First Circuit in Castaneda v. Souza 36 agreed in an en banc decision that ICE must detain someone from criminal release in order for mandatory detention to apply. In Castaneda, however, the court remanded to determine what time period constitutes a reasonable gap in custody time and whether a bright line rule is appropriate. In other words, the court remanded to determine a rule for the amount of time that ICE has to apprehend someone in order for the “when released” language to apply in their favor. Nonetheless, ICE does not have an infinite amount of time and advocates in the First Circuit should explore these arguments if their client is not apprehended from criminal custody. Certain district courts have also followed that the “when released” language applies to apprehension from criminal custody. 37 Advocates should research the relevant law in their jurisdiction and argue that “when released” requires apprehension immediately upon release from criminal custody. Arguably, mandatory detention should also not apply to persons sentenced only to probation on or after October 8, 1998, because “release” within that statute means release from physical confinement. 38 But see the BIA’s decision Matter of Kotliar, holding that release from physical

31

Lora v. Shanahan, 804 F.3d 601 (2nd Cir. 2015); Sylvain v. Attorney General, 714 F.3d 150 (3rd Cir. 2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012); Olmos v. Holder, 780 F.3d 1313 (10th Cir. 2015). 32 See, e.g., Khan v. Whiddon, No. 2:13-cv-638-FtM-29MRM, 2016 WL 4666513 (M.D. Fl. Sept. 7, 2016); Gjergi v. Johnson, No. 3:15-cv-1217-J-34MCR, 2016 WL 3552718 (M.D. Fl. June 30, 2015); Cortez v. Lynch, H-15-3306, 2016 WL 1059532 (S.D. Tex. Mar. 17, 2016). 33 For mandatory detention to apply, the release must be from actual, physical custody of the state. Matter of West, 22 I&N Dec. 1405 (BIA 2000) (where person was sentence to probation, he was not subject to mandatory detention because he was not released from the physical custody of the state). 34 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016); see also Khoury v. Asher, 2016 WL 4137642 (9th Cir. Aug. 4, 2016). 35 2016 WL 4137642 (9th Cir. Aug. 4, 2016). 36 Castaneda v. Souza, 810 F.3d 15 (1st Cir. 2015) (en banc). 37 Mudhallaa v. BICE, No. 15-10972, 2015 WL 1954436 (E.D. Mich. Apr. 29, 2015); Rosciszewski v. Adducci, 983 F. Supp. 2d 910 (E.D. Mich. 2013); Rosario v. Prindle No. 11-217, 211 WL 6942560 (E.D. Ky. Nov. 28, 2011), adopted by 2012 WL 12920 (E.D. Ky. Jan. 4, 2012); Khodr v. Adduci, 697 F. Supp. 2d 774 (E.D. Mich. 2010). 38 See Tenrreiro v. Ashcroft, No. CV 04-768-PA, 2004 WL 1354277 (D.Or.2004) (unreported), order vacated on reconsideration on other grounds, NO. CV 04-768-PA, 2004 WL 1588217 (D.Or. 2004) (holding that for a petitioner who was never confined, probation should not be considered to be custody for purposes of mandatory detention).

6-13

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

custody following criminal arrest, regardless of whether the individual is sentenced to incarceration, qualifies as “release” under INA § 236(c). 39 Third, because the mandatory detention law went into effect October 9, 1998, the release must be from criminal custody after October 9, 1998. Fourth, the Board has held that the person must be in custody for an offense that triggers mandatory detention, at the time of release. 40 Example: LPR Patrick has a firearm offense from 1996, prior to the mandatory detention law, then in 2006 he is arrested and convicted for petty theft and serves three days in jail. If ICE takes him into custody after the 2006 custody, is he subject to mandatory detention? Under Matter of Garcia-Arreola, 41 the Board held that mandatory detention is triggered only when the non-DHS custody is related to a removal ground that triggers mandatory detention. Mandatory detention does not apply where the release from incarceration is unrelated to the ground that triggered mandatory detention, such as in the example above. Patrick’s firearm offense pre-dates the effective date of mandatory detention, and his later custody for a non-deportable crime involving moral turpitude cannot trigger mandatory detention. NOTE: Whether a criminal conviction qualifies as one of the above immigration categories (e.g., crime of moral turpitude, aggravated felony, etc.), is a complex legal assessment and should be done by an immigration attorney. See Chapter 5 for more information on assessing the immigration consequences of criminal convictions. Much to the disappointment of immigration advocates, the U.S. Supreme Court, in a case called Demore v. Kim, 123 S.Ct. 1708 (2003) upheld the mandatory detention provisions of INA § 236(c), even for lawful permanent residents. In other words, the Supreme Court said that these harsh provisions do not violate the Constitution. Nonetheless, there are many challenges to the mandatory prevention provisions. The ACLU and the Legal Action Center of the American Immigration Council provide resources for challenging mandatory detention. 42 Some basic principles are discussed in § 6.11. B.

Mandatory Detention for Suspected Terrorists

The Attorney General (AG) or the Deputy Attorney General (DAG) have the power to segregate from the above-noted detention rules any suspected terrorists. This rule was created by the USAPATRIOT Act, passed by Congress in the wake of the terrorist attacks on the United States on September 11, 2001. Under INA § 236A, the AG or the DAG may certify an individual if there are reasonable grounds to believe the person falls within one of the terrorism grounds of

39

24 I&N Dec. 124 (BIA 2007); see also Matter of West, 22 I&N Dec. 1405 (BIA 2000). Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010). 41 25 I&N Dec. 267 (BIA 2010). 42 See www.legalactioncenter.org and www.aclu.org. The Immigrant Right’s Project of ACLU additionally has helpful outlines for legal argument. 40

6-14

inadmissibility or deportability. 43 The AG or DAG may also certify an individual where there are reasonable grounds to believe that the person is engaged in any other activity that endangers the national security of the United States. 44 Only the AG or DAG can certify someone for detention under INA § 236A. Once a person has been so certified, he or she is subject to special detention provisions. Under these provisions, the Attorney General must place the person in removal proceedings, or charge the person with a criminal offense, within seven days of commencement of detention. Otherwise the person must be released. 45 Normally, ICE and CBP can detain someone only 48 hours before instituting removal proceedings or having to release the person. 46 While proceedings are pending, the person must remain in custody, even if he or she is eligible for—or is granted—relief from removal, unless the Attorney General determines that the alien no longer falls within one of the specified grounds. 47 Following a finding that the person is removable, he or she may continue to remain in custody if the person’s release will threaten the national security of the United States, or the safety of the community or any person. The need for continued detention must be re-evaluated in six-month intervals. 48 Although it is unlikely that one of your clients will be detained under this special national security provision, it is important to know that it exists. Someone detained under this section should be referred to an attorney or agency with experience in detention issues, such as the American Civil Liberties Union or the Detention Watch Network (www.detentionwatchnetwork.org). § 6.8 A.

Challenging Mandatory Detention and Prolonged Detention

Joseph Hearing

A person may be able to show that he or she is not subject to mandatory detention at a Joseph hearing by showing that she is incorrectly classified as subject to mandatory detention. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Matter of Joseph held that a permanent resident is not properly included within a mandatory detention category if ICE is “substantially unlikely” to establish at the merits hearing the charges that would subject the person to mandatory detention. Id. While counsel should try to meet that standard, counsel also should assert in federal court that the proper standard is simply “likelihood of success on the merits of [the] charge.” Id. at 809.

43

These grounds were expanded under the so-called “Real ID Act of 2005” which was passed into law on May 11, 2005 as Division B of another, unrelated piece of legislation. [P.L. 109-13]. 44 INA §§ 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(A)(4)(A)(i), 237(A)(4)(A)(iii), and 237(A)(4)(B). 45 INA § 236A(a)(5). 46 See 8 CFR § 287.3(d). 47 INA § 236A(a)(2). 48 INA § 236A(a)(7).

6-15

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

A Joseph hearing should be scheduled immediately after requested, or else it may be a violation of the person’s rights. 49 If the person prevails at the Joseph hearing, he or she is entitled to a bond hearing. 50 The results of the Joseph hearing, however, may be challenged in federal court. In Tijani v. Willis, the Ninth Circuit questioned the holding in Matter of Joseph, finding that imposing the burden of proving that ICE is “substantially unlikely” to establish the charges on the permanent resident is contrary to the Constitution. When the fundamental right of liberty is at stake, the Ninth Circuit explained, the Supreme Court has consistently rejected laws that place the burden of protecting his or her fundamental right on the individual. Tijani, 430 F.3d at 1244-45. 51 The Tijani court also criticized Matter of Joseph because it placed little weight on the deprivation of individual liberty through lengthy detentions. Tijani, 430 F.3d at 1249. Practitioners should therefore argue that when ICE alleges that a person is subject to mandatory detention under INA § 236(c), ICE should also bear the burden of proving that it would be substantially likely to prevail in sustaining the charges before a permanent resident client can be denied the right to bond. Practitioners in the Ninth Circuit should cite to Tijani v. Willis, while practitioners in other jurisdictions should cite both to Tijani v. Willis and to the Supreme Court cases cited therein. B.

Bright Line Rules: Rodriguez and Lora Hearings

In Rodriguez v. Robbins, 52 the Ninth Circuit stated that all noncitizens, even those subject to mandatory detention, are allowed to request bond hearings after they have been detained for six months or more pending removal proceedings. These cases are based on the notion that even mandatory detention must be for a reasonable amount of time, and that at some point, prolonged detention becomes unreasonable. In the bright line cases, the Courts of Appeals have established that 6 months of detention is the point where everyone must be entitled to a bond hearing. Once someone has been detained 6 months, a Rodriguez hearing is set automatically by the court. Additionally, the government bears the burden of justifying continued imprisonment by clear and convincing evidence. However, in the Ninth Circuit detainees and practitioners have reported that the burden is being placed on the noncitizen to show that he or she is not a flight risk or a danger, or there is at least confusion over the shirt in burden. The hearing must be accompanied by several other procedural safeguards as well. A similar decision, Lora v. Shanahan, 53 exists in the Second Circuit.

49

According to “Case Completion Goals” of the April 26, 2002 memo from the Office of the Chief Immigration judge, all custody hearings should be completed within three days. See Memo, OCIJ, Case Completion Goals (April 26, 2002) www.aila.org/content/default.aspx?bc=8735|17026|9002. Therefore, if a hearing is requested but not scheduled soon thereafter, it can be argued that the detention violates due process. By failing to provide a prompt hearing, the government is also arguably violating the procedural protection that the Supreme Court used to justify the application of § 236(c) to lawful permanent residents in Demore v. Kim. See Kim, 538 U.S. at 531-32 (Kennedy, J., concurring). 50 Joseph, 22 I&N at 806. 51 Citing Addington v. Texas, 441 U.S. 418 (1979); Cooper v. Oklahoma 517 U.S. 348, 363 (1996); Foucha v. Louisiana, 504 U.S. 71, 112(1992). 52 Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). 53 Lora v. Shanahan, 804 F.3d 601 (2nd Cir. 2015).

6-16

To learn more about Rodriguez bond hearings in the Ninth Circuit, see Bond Hearings for Immigrants Subject to Prolonged Immigration Detention in the Ninth Circuit, Practice Advisory, ACLU (Dec. 2015). To learn more about Lora bond hearings in the Second Circuit, see Understanding Lora v. Shanahan and the Implementation of Bond Hearings for Immigrants in Prolonged Detention, Practice Advisory, NYU Law Immigrant Rights Clinic (Nov. 2015). While these decisions have been a great success in the challenge against mandatory detention, advocates have raised concerns over the way that EOIR is processing these cases. For example, individuals released under Rodriguez v. Robbins have had their master calendar cases scheduled between 10 and 28 days after release from detention, increasing the potential for individuals to accidentally miss their hearings and receive orders of removal in absentia. 54 For a practice guide meant to assist, especially pro se respondents in this situation, see www.aclu.org/feature/immigration-detention-resources. As of the date of this publishing, Rodriguez is under review at the U.S. Supreme Court. C.

Case by Case Assessments: Other Case Law Challenging Prolonged Detention

While not adopting the bright line rule that a detention is presumptively unconstitutional after 6 months as in Rodriguez and Lora, another body of appellate cases provides respondents the ability to challenge prolonged detention on a more case-by-case basis. In Sopo v. U.S. Attorney General, 55 the Eleventh Circuit found that INA § 236(c) “‘authorizes detention for [only] a reasonable amount of time.” 56 The court did not adopt a presumptive period of time at which detention becomes unreasonably prolonged. Instead, it laid out a series of factors to define the “triggering point” for a bond hearing. For example, the length of detention, the causes of case delay, and other factors (“likely duration of future detention”; “likelihood that [removal] proceedings will culminate in a final removal order”; foreseeability of the person’s removal if ordered removed; length of the person’s criminal sentence as compared to the length of his immigration detention; and conditions of immigration detention). While there is no presumptive trigger point, the court did indicate that anything less than six months is unlikely to be unreasonable. 57 Unlike Rodriguez and Lora, the burden of proof is on the respondent to prove that he or she is not a danger or flight risk. 58 Some advocates have reported being required to file a habeas petition in order to obtain a hearing under Sopo. Advocates facing this challenge should point to Footnote 8 in the majority’s opinion, stating that “[t]he government is constitutionally obligated to follow the law, and the law under 54

In a memorandum dated January 31, 2017, EOIR changed their case priorities. Detained individuals released on bond in a Rodriguez hearing remain expedited. See Memorandum re: “Case Processing Priorities,” January 31, 2017 found at www.justice.gov/sites/default/files/pages/attachments/2017/01/31/cas eprocessingpriorities.pdf (last visited July 2017). 55 Sopo v. U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016). 56 Id. at 1214. 57 Id. at 1217. 58 For a practice advisory on Sopo, see ACLU, Practice Advisory: Prolonged Mandatory Detention and Bond Eligibility in the Eleventh Circuit (June 2016).

6-17

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

§ 1226(c) now includes a temporal limitation against the unreasonably prolonged detention of a criminal alien without a bond hearing. The government does not need to wait for a § 2241 petition to be filed before affording an alien an opportunity to obtain bond.” 59 In the Third Circuit, respondents have Diop v. ICE/Homeland Security, 656 F.3d 221 (3rd Cir. 2011); Leslie v. Attorney General of the United States, 678 F.3d 265 (3rd Cir. 2012); and ChavezAlvarez v. Warden York County Prison, No. 14-1402, 2015 WL 1567019 (3rd Cir. 2015). 60 Diop held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time.” Leslie clarified that Diop extends not just to individuals before the immigration judge and Board of Immigration Appeals, but also to individuals who have obtained a stay of removal pending judicial review of their removal orders. 61 Chavez-Alvarez further refined the point at which the bond hearing is triggered, discussing the existence of a good faith challenge to removal, the length of detention, and the prospect of future proceedings. 62 Once a hearing is granted, the government bears the burden of proof. The First Circuit in Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016) similarly held that mandatory detention applies only for a reasonable time (based on brevity and removability), indicating that such an assessment is case by case. While not delineating an exhaustive list of factors, guideposts offered by the court included the “total length of the detention, the foreseeability of proceedings concluding in the near future or the likely duration of future detention, the period of the detention compared to the criminal sentence, the promptness or delay of the immigration authorities or the detainee, and the likelihood that the proceedings will culminate in a final removal order.” 63 Finally, the Sixth Circuit has also taken a similar approach, stating in Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003) that individuals may be detained “for a time reasonably required to complete removal proceedings in a timely manner, and if the process takes an unreasonably long time, detainee may seek relief in habeas proceeding.” In Ly, the respondent’s one and a half years detention with no chance of actual, final removal was found to be unreasonable. District courts in other circuits have similarly held that prolonged detention may be challenged on a case-by-case basis. 64 Advocates should research case law in their local district courts as well. D.

Challenging Detention in Withholding-Only Proceedings

In Guerra v. Shanahan, 65 the Second Circuit held that a respondent was entitled to a bond hearing despite being in “withholding-only” proceedings. In Guerra, the respondent had previously obtained an order of removal and then re-entered the U.S., after which he was detained and his removal reinstated. Guerra, however, was found to have a reasonable fear to return to his home country of Guatemala and placed in proceedings for determination of a withholding of removal or 59

Sopo v. U.S. Attorney Gen., 825 F.3d 1199, 1217 (11th Cir. 2016). For a practice advisory on Diop, Leslie, and Chavez-Alvarez, see ACLU, Practice Advisory: Prolonged Mandatory Detention and Bond Eligibility in the Third Circuit (May 2015). 61 Leslie, 678 F.3d at 270. 62 Chavez-Alvarez, 2015 WL 1567019, at *7. 63 Reid v. Donelan, 819 F.3d 486, 500 (1st Cir. 2016). 64 See, e.g., Jarpa v. Mumford, 211 F.Supp.3d 706, 717 (D. Md. 2016); Haughton v. Crawford, 1:16-CV634(LMB/IDD), 2016 WL 6436614, at 2 (E.D. Va. 2016). 65 831 F.3d 59 (2nd Cir. 2016). 60

6-18

Convention Against Torture claim. Guerra filed a habeas petition in federal district court and eventually received a favorable ruling from the Second Circuit, which held that Guerra’s detention was governed by INA § 236(a) (which allows for a bond hearing), as opposed to INA § 241 (which does not allow for a bond hearing), under the reasoning that a reinstated removal order is not “administratively final” in withholding-only proceedings. In deciding whether INA § 236(a) applied, the court noted that the statute permits detention “‘pending a decision on whether the alien is to be removed from the United States.’ The statute does not speak to the case of whether the alien is theoretically removable but rather to whether the alien will actually be removed. An alien subject to a reinstated removal order is clearly removable, but the purpose of withholding-only proceedings is to determine precisely whether ‘the alien is to be removed from the United States.’” 66 Because Guerra’s removal was not imminent, the court found INA § 236(a) to be “the more logical source of authorization for the detention of aliens currently in withholding-only proceedings.” 67 In finding that Guerra’s detention was governed by INA § 236(a), he was entitled to a bond hearing. No other appellate courts have considered this issue, though several district courts have. 68 Juvenile Proceedings: Juveniles have special conditions for release. See 8 CFR § 1236.3. In addition to monetary bond, juveniles will have additional restrictions for release in that they can only be released to a parent, a legal guardian, or an adult relative. For additional instruction regarding juvenile bond hearings or release from detention, see Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth, ILRC 2015 (www.ilrc.org/publications). For additional arguments to challenge mandatory or prolonged detention, see Challenging Detention Without a Bond Hearing Pending Removal Proceedings, American Civil Liberties Union, Immigrants’ Rights Project. 69 E.

Casas-Castrillon Hearing

At a certain point in the appeal process, a noncitizen is no longer subject to the mandatory detention provision, but rather is subject to the discretionary bond provision under INA § 236(a) and is entitled to a bond hearing. Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). The court found that detention pursuant to § 236(c) is authorized through the administrative appeal of the removal order to the BIA; however, upon judicial review, authority for detention shifts to § 236(a) (discretionary detention). This meant that the petitioner was entitled to a discretionary bond hearing. The court said, Because the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be ‘constitutionally doubtful,’ we hold that 8 USC

66

Guerra v. Shanahan, 831 F.3d 59, 62 (2nd Cir. 2016) (emphasis added). Id. at 63. 68 See, e.g., Rafael Ignacio v. Sabol, No. 1:CV-15-2423, 2016 WL 4988056 (M.D. Pa. Sept. 19, 2016); Alvarado v. Clark, No. C14-1322-JCC, 2014 WL 6901766 (W.D. Wa. Dec. 8 2014); Guerrero v. Aviles, No. 14-4367, 2014 WL 5502931 (D.N.J. Oct. 30, 2014). 69 Available at www.aclu.org. 67

6-19

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

§ 1226(a) (INA § 236(a)) must be construed as requiring the Attorney General to provide the alien with such a hearing. Id. at 950. In addition to requiring a bond hearing for prolonged detention, Casas-Castrillon shifts the burden to the government to prove that the person should not be released because he is a flight risk or a danger to the community. 70 Many detainees and practitioners have reported, however, that the burden is being placed on the noncitizen to show that he or she is not a flight risk or a danger. Immigration counsel who encounter problems with this issue and other issues relating to Casas-Castrillon should contact the ACLU of Southern California. 71 Because Rodriguez hearings are currently in place, detained immigrants don’t generally need a separate “Casas-Castrillon” hearing during the federal appeals process. Nonetheless, this is an important tool, should Rodriguez practice stop after a contrary decision from the Supreme Court. F.

Release under Zadvydas for Certain People with Final Orders of Removal

What happens if someone has a final order of removal, but no country will take him? This scenario occurs frequently. Countries such as, Laos and Cuba will not take people back after they have been ordered removed from the United States. INA § 241(a)(1)(A) mandates that a final order of removal must be carried out within a 90 day period, called the “removal period.” INA § 241(a)(2) requires that persons subject to final orders of removal may be detained during the removal period, and that persons who have been found inadmissible or removable for criminal or security related grounds must be detained during this time. In 2001, in a case called Zadvydas v. Davis, 533 U.S. 678 (2001), the U.S. Supreme Court decided that the detention of aliens with final orders of removal under INA § 241 is limited to a period that is reasonably necessary to bring about the person’s removal, and does not permit indefinite detention. The court designated six months as a “reasonably necessary period” to bring about deportation. After six months, if an alien provides good reason to believe that there is no significant likelihood that he’ll be removed in the reasonably foreseeable future, the government must rebut that showing to continue detention. Even before the Supreme Court’s ruling, INA § 241(a)(3) provided that persons subject to final orders of removal could be released under supervision after the 90-day removal period was over. However, the government was detaining many people who had little or no possibility of being returned to their home countries for very long periods of time. That’s why the Supreme Court ultimately had to decide the issue. 1. Regulations governing release of aliens up to six months after final order Regulations governing the terms and procedures for release are found beginning at 8 CFR §§ 241.4 and 1241.14. The former INS first issued proposed regulations to implement the Supreme Court’s decision in Zadvydas in November 2001. The proposed regulations left standing 70

535 F.3d at 950. Practice advisories on Casas-Castrillon are posted at www.immigrationadvocates.org in the Immigration and Crimes Resource Library, Detention subfolder (membership is required). 71

6-20

the established procedures to secure the release of individuals from detention in the first six months following a final order of removal. Those procedures are discussed in this section. However, the proposed regulations significantly modified the procedures after the six-month period. Under these regulations, persons who are inadmissible or removable for criminal or security grounds, for prior immigration violations, or who are determined to be “a risk to the community or unlikely to comply with the removal order” may be detained beyond the removal period. 72 The regulations authorize local ICE Directors to continue to detain such individuals during the 90-day removal period plus an additional three months. 73 People detained under this section have a right to all notices, decisions, or other documents in connection with custody reviews made either by District Directors or by the Headquarters PostOrder Detention Unit (HQPDU). 74 The decision must specify the reasons for continued detention. 75 People detained under these sections also have the right to representation by an attorney or other representative. 76 If an individual can demonstrate that his or her release from custody will not pose a danger to the community or the safety of people or property, and he or she is not a flight risk, he or she may be released from custody. 77 However, before someone with a final order of removal can be released from detention, the District Director must make the following findings: 78 1. Travel documents are unavailable or immediate removal is not practicable or in the public interest; 2. The detainee is now a nonviolent person, 3. The detainee is likely to remain nonviolent if released; 4. The detainee is not likely to pose a threat to the community following release; 5. The detainee is not likely to violate the conditions of release; and 6. The detainee does not pose a significant flight risk if released. The type of evidence the District Director will use to determine a person’s eligibility for release following the 90-day removal period is specified at 8 CFR §§ 241.4(f) and 1241.4(f). This evidence includes such things as the person’s criminal history, if any, disciplinary record, psychological or psychiatric reports, and evidence of rehabilitation. Someone who refuses to

72

INA § 241(a)(6); 8 CFR §§ 241.4(a) & (b) and 1241(a) & (b). 8 CFR §§ 241(c)(1) and 1241(c)(1). 74 District Directors and HQPDU are still referenced in the regulations, even though the Immigration & Naturalization Service has been dissolved and its functions taken over by the ICE, CBP, and USCIS divisions of the Department of Homeland Security. Note that ICE is the division with authority over detained aliens. 75 8 CFR §§ 241.4(d) and 1241(d). 76 8 CFR § 241.4(d)(3) and 1241(d)(3). 77 8 CFR § 241.4(d)(1). 78 8 CFR §§ 241.4(e) and 1241.4(e). 73

6-21

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

cooperate with ICE’s efforts to secure travel documents for their deportation will be denied release. 79 Detainees who remain in custody six months after the entry of the removal order must seek custody reviews from the Executive Associate Commissioner, acting through the HQPDU. 80 2. Regulations governing release of aliens more than 6 months following a final order of removal In November 2001, the former INS issued interim regulations designed to implement the Supreme Court’s decision in Zadvyas, and set forth the procedures to be followed after the sixmonth reasonably necessary period to bring about a person’s deportation has expired. Under 8 CFR §§ 241.13(g)(1) and 1241.13(g)(1), after six months (generally, the 90-day removal period plus another 90-days), the HQPDU will conduct a review to determine whether there is a significant likelihood that the alien will be removed in the reasonably foreseeable future. Until that determination is made, however, 8 CFR §§ 241.4 and 1241.4 continue to govern the terms of detention. In addition, if the alien fails to cooperate with the authorities to help effectuate his or her removal, the 90-day removal period can be extended, thereby subjecting the person to the requirements of 8 CFR §§ 241.4 and 1241.4 even though more than six months would have passed. A person who is detained and believes that there is no likelihood that he or she will be able to be removed does not have to wait six months after the final order to petition ICE for release. 81 On the other hand, ICE has no obligation to consider the application for release until that six-month period is over. 82 Once the HQPDU determines that there is no significant likelihood that the alien will be removed in the reasonably foreseeable future, then the person can be released subject to certain conditions deemed necessary. Even if released, the person can be detained again if he or she violates the conditions of release. 83 Also if the HQPDU determines later on that due to changed circumstances removal has become likely once again, then the person’s custody status will once again be governed by 8 CFR §§ 241.4 and 1241.4, and he or she may be taken into custody once again. 84 If after review, the HQPDU determines that there are special circumstances justifying continued detention, the person will continue to be detained. 85 If the person is denied release under 8 CFR §§ 241.13(g) and 1241.13(g), he or she can petition for another review every 6 months, or at any time if there are materially changed circumstances. You should note that practically speaking some aliens might be detained indefinitely if there are special circumstances justifying continued detention. The Supreme Court decision did not bar ICE from detaining deportable individuals per se. Rather, ICE must release detainees if there is 79

8 CFR §§ 241.4(g)(5) and 1241.4(g)(5). 8 CFR §§ 241.4(c)(2) and 1241.4(c)(2). 81 8 CFR §§ 241.13(d)(3) and 1241.13(d)(3). 82 8 CFR §§ 241.13(b)(2)(ii) and 1241.13(b)(2)(ii). 83 8 CFR §§ 241.13(i) and 1241.13(i). 84 8 CFR §§ 241.13(i)(2) and 1241.13(i)(2). 85 8 CFR §§ 241.13, 241.14, 1241.13 & 1241.14. 80

6-22

no possibility for removal in the reasonably foreseeable future unless it is absolutely necessary to hold them in detention. Under 8 CFR §§ 241.14 and 1241.14. ICE defines these “special circumstances” meriting continued detention as cases where: • • • •

the person has a highly contagious disease that is a threat to public safety; there are serious adverse foreign policy considerations; the person’s is suspected of being a threat to national security or a terrorist; or the person is determined to be “especially dangerous.”

Persons whose continued detention is due to a finding that they are especially dangerous can have that finding reviewed by an immigration judge. They also have the right to appeal to the Board of Immigration Appeals. 86 This is a change from previous regulations that prohibited review by the Board of Immigration Appeals. People whose continued detention is due to highly contagious disease, serious foreign policy considerations, or terrorism grounds do not have a right to an immigration court hearing or BIA review. § 6.9

Children and Bond

Currently, ORR, a division of the U.S. Department of Health and Human Services, administers the immigration detention system for UCs and is charged with making care and placement decisions for UCs. This is a change in the law that was made by the HSA and amended by the TVPRA. (Previously, UCs were detained by the INS.) The government was using this change in law as a justification for not permitting detained UCs to seek bond redetermination hearings, as ordered by the 1997 the Flores Settlement Agreement. 87 On July 5, 2017, the Ninth Circuit issued a landmark holding in Flores v. Sessions, 88 confirming that all detained immigrant youth have a right to a “bond hearing” before an immigration judge. The Ninth Circuit held that intervening federal legislation, including the Homeland Security Act (HSA) and the Trafficking Victims Protection Reauthorization Act (TVPRA), did not modify the Flores Settlement Agreement. 89 Detained children now very clearly have the right to request a bond hearing before an immigration judge (IJ). ORR has created a form, available on its website that children may use to request a bond hearing. 90 In the context of unaccompanied minors, this is an important right, but a limited one. This is because these proceedings do not provide UCs the same rights that are ordinarily available through a bond hearing. Namely, a favorable finding in a bond hearing for a UC does not necessarily entitle the minor to release. ORR maintains the responsibility to ensure that there is a safe and secure placement to which the child can be released. In other words, even if an IJ finds that a child does not pose a flight risk and is not a danger to the community, the 86

8 CFR §§ 241.14(g) & (h) and 1241.14(g) & (h). Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-4544-RJK (C.D. Cal. 1996) [hereinafter, Flores Settlement]. 88 No. 17-55208, 2017 U.S. App. LEXIS 11949 (9th Cir. July 5, 2017). 89 Stipulated Settlement Agreement, Flores v. Reno, Case No. CV85-4544-RJK (C.D. Cal. 1996) [hereinafter, Flores Settlement]. 90 See Office of Refugee Resettlement, “Notice of Right to a Bond Hearing,” available at www.acf.hhs.gov/sites/default/files/orr/notice_of_right_to_a_bond_hearing.pdf (last visited July 19, 2017). 87

6-23

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

child still might not be released unless or until ORR can ensure that they have a safe and suitable placement to whom they can release the child (e.g., a parent, relative, or adult friend who has been vetted to serve as the child’s “sponsor”). An important exception to this is when ORR has already approved a sponsor but has not released the child due to their determination that the child is dangerous. In this case, unless the IJ sustains a finding of dangerousness in the bond hearing, the youth must be released by ORR where that agency has already identified an approved sponsor. Bond hearings for detained UCs may not be necessary in all cases. For example, for children in less secure detention settings whom ORR has determined not to be a danger, a bond hearing may not be necessary, as ORR may follow its normal reunification process to release the child to a sponsor. Bond hearings for UCs may be most necessary for children who have a suitable sponsor identified to whom they can be released, but whom ORR is failing to release because of a determination that the child is a danger to the community, as discussed above. The right to a bond hearing pursuant to the Flores Settlement Agreement is not tied to a specific statutory provision, such as INA § 236(a). This means that the standards for a UC bond hearing have not been clearly spelled out in the law. As a result, advocates have an important opportunity to advocate for especially protective standards for detained UCs seeking a bond hearing. § 6.10 Preparing for the Bond Hearing Once a bond hearing has been requested, the client must prepare to present his or her case before the immigration judge. As always, advocates should consult the Immigration Court Practice Manual for procedure. 91 Additionally, advocates should ask local practitioners about practices and procedures in their local court. For example, certain judges hear testimony whereas others prefer to have informal conferences with counsel, and some judges record their hearings whereas others do not. Advocates should also bear in mind that bond proceedings are distinct and separate from the merits case. 92 Preparation for the merits case is discussed in Chapter 2 of this manual. The practical significance is that documents and testimony taken in the bond hearing are not automatically included in the individual hearing. This evidence must be resubmitted at the merits hearing if it is to be considered at that time. However, testimony in the bond hearing can be used to impeach the client during the merits hearing. Thus, testimony preparation is important. Please note that the inverse is also true: any documents already part of the record in removal proceedings will not transfer automatically into the bond proceedings. This scenario is infrequently a concern as most immigrants start with a bond hearing, but some individuals are already in removal proceedings when they are taken into custody. In such cases, any documents that should be considered with a bond request will need to be submitted in bond proceedings.

91 92

Available at www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm. 8 CFR § 1003.19(d).

6-24

§ 6.11 Proving the Bond Case The non-citizen has the burden of proving that he or she merits bond by proving that he or she does not pose a danger to the community 93 and is not a flight risk. 94 The non-citizen may also be required to prove that he or she is not a threat to national security. 95 In assessing flight risk, the immigration judge takes into consideration a large number of factors collectively known as bond equities. Thus, in preparing for the hearing, the advocate should collect evidence addressing bond equities as well as danger/security concerns. A.

Proving That Your Client Is Not a Danger to the Community and Is Not a Threat to National Security

Proving that your client is not a danger to the community or threat to national security is particularly important if your client has a criminal history, including arrests that did not result in convictions. A history of substance abuse may also raise red flags for the immigration court, particularly if such abuse led to the commission of crimes such as driving under the influence or domestic violence. Here, the best strategy is to research the facts and mitigate. Time permitting, find out as much as possible about what happened during the commission, or alleged commission, of the crime. Request police reports, talk to others with knowledge of the crime, talk to the previous defense attorney, and question your client extensively. If your client has substantive abuse issues, note that substance abuse can affect memory and the ability to recall important details. Regarding mitigation, collect evidence of rehabilitation (e.g., treatment program completion, probation compliance), collect testimony from family or community members regarding the person’s good character or rehabilitation, and create a plan for future rehabilitation. For example, if your client is an alcoholic, establish where your client will receive treatment upon release. If you are in a court which takes testimony, the general advice is to be the first to bring up bad facts including arrest or convictions, particularly if they are charged on the Notice to Appear. If a conviction is going to be brought up regardless by the prosecution, it is better for the noncitizen to bring it up first and have the first opportunity to describe what happened and include any mitigating facts. Neither the court nor the prosecution likes the appearance that the noncitizen is “hiding the ball.” Example: Sara has a theft conviction and a hard time remembering details due to past alcohol abuse. Sara is the first to admit that she has a drinking problem and presents evidence that she has rehabilitated and continues to attend Alcoholics Anonymous

93

Matter of Urena, 25 I&N Dec. 140, 141 (BIA 2009) (clarifying that an immigration judge may not release a person on bond who has not met his burden of demonstrating that his “release would not pose a danger to property or persons”). See also 8 CFR §§ 236.1(c)(8), 1236.1(c)(8). 94 Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). 95 Matter of D-J-, 23 I&N Dec. 572 (AG 2003) (Attorney General’s discretion to detain not limited to danger and flight risk; justifying detention of Haitian asylum seekers based on the government’s asserted national security interest in deterring mass migration of Haitians by boat). See also Matter of Khalifah, 21 I&N Dec. 107 (BIA 1995) (deeming person a terrorist where person facing serious criminal charges in another country in a proceeding whose fairness is in doubt).

6-25

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

classes. Sara also provides letters of support showing that she has a strong community support system which keeps her accountable. Sara is granted bond. PRACTICE TIP: In recent years, immigration judges and ICE have become especially strict on alcohol abuse and particularly Driving Under the Influence (DUI) of alcohol or a controlled substance. While a DUI may seem like a relatively minor offense, put extra effort into rehabilitation and a strong system of accountability if a DUI or substance abuse is present, especially if the offense is recent. Additionally, where there is a conviction, it is important for the client to “take responsibility” for what they have done. Clients sometimes state that they did not do what they were convicted of. However, immigration court is not another opportunity to litigate the criminal case, and it will hurt your client to deny responsibility if there is a criminal conviction. In a world where many criminal convictions are a result of plea-bargaining, admitting guilt can sometimes be problematic for your client. You might need to discuss the criminal conviction in detail to determine for which conduct your client will be able to take responsibility. It is important to explain to your client that they cannot revisit the criminal conviction, and a finding of guilt is already part of the record. If your client is questioned regarding events that were charged but haven’t yet been adjudicated in criminal court, direct your client to assert their Fifth Amendment right to silence. Anything your client says in immigration court could be used against your client in a future criminal proceeding. See Chapter 7 for more on the right to remain silent. B.

Proving that Your Client Is Not a Flight Risk

The court assesses flight risk through several factors including the following: 1. 2. 3. 4. 5. 6. 7. 8. 9.

Whether the person has a fixed address in the U.S.; the length of residence in the U.S.; family ties; employment history; record of appearance in court; criminal history (including how recent and serious); history of immigration violations; attempts to flee prosecution; and manner of entry into the United States. 96

In sum, the court is attempting to assess your client’s incentives and likelihood to appear at future hearings. The more evidence you present to show that your client is not a flight risk through these factors, the lower the bond. The following details these factors.

96

•

Permanent Address and Length of Residence: A stable address is very important. The longer a client has resided at one address, or in one town, the better.

•

Family Ties: If a client has relatives (a spouse or children, for example) who are either U.S. citizens or lawful permanent residents, the judge will be more likely to believe that a client’s ties to the community are real and strong. This is especially true if the family has

Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).

6-26

lived in the area for a considerable length of time or if the family is able to confer immigration benefits to the client. •

Employment History: If a client is currently employed, it tends to show that she has a strong reason to remain in the area. The length and stability of the job is also important.

•

History of Failure to Comply with Court Hearings or Immigration Law: The immigration judge may also take into consideration a failure of non-compliance with immigration laws or a history of failure to appear for other court hearings. These are facts that you should screen for because if they exist, there is a good chance that the government will bring them up at the hearing and as with crimes, you should know all bad facts prior to the hearing and be prepared to provide an explanation and mitigate the consequences.

•

Criminal History: This is very important to assessing the first factor discussed, “danger to the community.”

•

Manner of Entry: If your client entered unlawfully, the judge may see this as a negative factor in terms of the propensity to follow rules. Here, emphasize examples of the client as a responsible individual and compliance with laws in other areas of their life.

•

Other Community Ties: Any other evidence that we can present to show that a client has strong ties to the community and therefore is likely to remain for her future hearings is helpful. For example, church membership or attendance, enrollment in classes, membership in organizations or sports clubs, and involvement in children’s school activities.

•

Eligibility for Immigration Relief: An important consideration is whether a client is eligible for immigration relief in order to remain in United States. For example, if the person soon will immigrate through a family member or is eligible to apply for relief from removal, he or she has more invested in coming to court and is less likely to abscond. Additionally, the likelihood of success on the merits will be weighed. Meaning that if there is relief, but the likelihood of winning the case is extremely weak, this factor may carry less weight. Example: In Gabriela’s case, ICE set a bond of $5,000. Gabriela’s family can only come up with $2,000. At her bond hearing, held two days after she is arrested, Gabriela and her legal worker ask the immigration judge to reduce the bond to $2,000. They present evidence to show that Gabriela is a stable person with many family ties and ties to the local community. Moreover, she is eligible to apply for cancellation of removal and she appears to have a strong case. The judge agrees to lower Gabriela’s bond. Forms of relief are summarized in Chapters 9 through 12. See also the Custody Hearing Worksheet, Appendix H, and the Instructions for Submitting Certain Applications in Immigration Court, Appendix O.

C.

Bond Hearing Preparation Tips

Regarding strategy and practical tips, there are several points that advocates should keep in mind. Below are practice points followed by tips on client preparation.

6-27

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

Take Advantage of Client Contact. Take advantage of the limited in-person time that you have with your client by explaining the purpose of the bond hearing, explaining what to expect the day of the hearing, and by obtaining information on equities and bad facts. Explain the purpose of the bond hearing and the factors that the judge will consider so that your client becomes invested in the case and can better assist you in giving you the information that you need. Your client knows more about their life than you do and the more educated they are about their case, the more they will be able to assist you in obtaining needed information. Use the bond hearing checklist found in Appendix H or create your own in order to obtain information quickly and efficiently. PRACTICE TIP: Provide your client with pro se bond materials, such as those provided by the Florence Immigrant and Refugee Rights Project, so that your client can have reference materials which clearly explain the bond process and required evidence. 97 Additionally, think carefully about testimony your client will provide if there is a bond hearing. In particular, don’t ask a question that you don’t know the answer to while your client is on the witness stand. While you cannot prompt your client on what to say, you can and should have practiced testimony prior to the hearing. Also, remind your client not to answer a question they do not understand. They should ask for clarification if the question is confusing, even if the question is coming from their own counsel. Clients should also not guess at answers. Remember, bond testimony can be used to impeach clients at the merits hearing. Chapters 2 and 8 discuss trial preparations. Use Relaxed Evidentiary Rules to Your Client’s Advantage. The Federal Rules of Evidence (FRE) are used in immigration court but they are not binding. For example, you can object to the submission by the government of a police report (e.g., based on hearsay), but the immigration judge is still allowed to consider it. Likewise, as an advocate you should take advantage of relaxed application of the FRE. For example, submit letters of support even if you aren’t able to authenticate them, or introduce testimony even if it may include hearsay. However, whenever possible authenticate documents or bring in original witnesses as the judge will then give them more weight. Be the First to Bring up Bad Facts. If negative factors are going to come out against your client, bring them up yourself. It is best to be the first to bring up bad facts. That way, you will be the first one to explain what happened and mitigate through positive factors. By admitting to any negative factors, mitigating them, and then moving on to positive factors, you will be able to show the judge that despite past mistakes, your client is a good, responsible person who merits bond. Create Rehabilitation if None Present. If there is no past record of rehabilitation, help create a rehabilitation plan for your Client. •

97

Proactively contact rehabilitation centers and see if you can secure a letter guarantying admission. Depending on your client’s degree of addiction, a residential treatment center may be far preferable over meetings or counseling.

Available at www.firrp.org.

6-28

•

If the client will continue to be under the supervision of the criminal justice system or will have to continue complying with probation if released from detention, make that clear for the court.

•

If your client is detained in a facility that provides treatment programs or classes, make sure that your client is enrolled in such courses.

Witnesses. Family, friends, and employers may also provide testimony in certain courtrooms. If this is the case, you should engage in testimony preparation with them as well. Even if an individual cannot testify, it is extremely helpful to have them present in the courtroom. Judges will place much weight on family and community presence in the courtroom. Make sure to note such presence to the judge and note it on record in the event of an appeal. Letters of Support. Secure letters of support from family members, friends, employers, landlords, teachers, churches, etc. to show your client has strong ties to the community. •

Make sure that these letters identify the person, if relevant that they are a U.S. citizen (or have other lawful status), how long they have known the client, and in what capacity. Attach proof of citizenship or immigration status if available.

•

Urge people to include details and examples. For example, “my neighbor has good character,” is not as strong as “my neighbor has good character as evidenced by when they brought me dinner every day for a month while I was recovering from surgery.”

•

Letters will carry more weight if they are notarized.

•

Include a letter that explains the person has a support plan, place to live and room and board available to them upon release. Some practitioners submit an Affidavit of Support, on Form I-134 from a sponsor to further establish he person is not a flight risk.

Other Supporting Documents. When possible, provide documentary evidence of bond equities. •

For example, for permanent address, provide the lease agreement or proof of property tax payments.

•

For employment provide pay stubs or letters from employers showing dates, job title and job description.

•

For proof of family members, include birth certificates and note if family members have lawful status. Include certificates of citizenship if available.

•

Get creative in terms of documentary evidence!

•

Such evidence along with letters of support should be filed with the court and opposing counsel as described in the Immigration Court Practice Manual. Remember that all documents submitted to the court must be in English, thus any document in another language must be translated with a sworn statement from the translator. See Chapter 2.

Rely on Family Members, Employers, and Community Members. While your client is detained, their family members, friends, and employers, are generally not. Rely on these people to collect much of the evidence that you need, such as letters of support or proof of payment of taxes.

6-29

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

•

Make sure to provide guidance including why you are requesting such documentation. Explain the bond hearing and purpose of evidence to them as well. Many of these people are lay people who may not understand what a letter of support should contain or where to request certain documents.

•

Provide direction, examples where relevant, and firm deadlines which provide you adequate time to prepare relevant filings and translations.

Emphasize the Client’s Good Character. A person who lacks a sense of responsibility is arguably less likely to appear at her removal hearings. Therefore, our client’s character is relevant in bond redetermination issues. If we can show that our client is a responsible individual, we will be more successful in arguing for a bond reduction. Important factors to point out, whenever it is relevant or possible, are the following: • • • • •

Our client is dedicated to his or her family. Our client has had no serious criminal activity, and shows respect for the law. If there is criminal activity, our client has rehabilitated. Our client has come to past proceedings, which tends to prove that she is responsible and will likely continue to show up at future proceedings. Our client has been steadily employed, or else has been looking hard for a job, or just obtained a job. Again, this tends to show responsibility.

Bond Case in Action. The following provides a brief example of some of the above factors in action. Example: Gonzalo, who is undocumented and from Honduras, is in ICE custody. ICE has set his bond at $10,000. He was recently convicted of theft, but only spent a few days in jail since it was his first offense. He has worked in a cafeteria for the past two years, has been a good worker, and has had no other brushes with the law. He is not married. However, he lives at home with his mother, who is a lawful permanent resident, and his younger brother, who is twelve. You are representing Gonzalo at his bond redetermination hearing. What Sort of Things Do You Want to Tell the Judge? You would want to tell the judge that: 1) Gonzalo has a good, steady employment record; 2) he has had no other problems with the law; 3) his mother is a lawful permanent resident, 4) he has a fixed address, where he lives with his mother, who is willing to post bond and vouch for him. What Work Should You Do Ahead of Time? 1) Get letter of support from employer describing how long Gonzalo has worked there, his job duties, and about his character; pay stubs; letters from co-workers; see if any of the aforementioned can attend the hearing; 2) confirm that there are no other criminal convictions and ask Gonzalo about the circumstances around the theft, including what was stolen and why; 3) submit proof of his mother’s LPR status; have his mother testify or submit a letter of support 4) provide a copy of the lease as well as any bills or other documentation to show that he lives there, his mother can also testify to the same in person or via her letter of support. You will also want to find out if Gonzalo’s mother had petitioned for him and whether he

6-30

is eligible for relief. He might be eligible to adjust status or cancellation of removal, among other things. § 6.12 Posting the Bond The following are some practical tips on posting (paying) the bond so that a person can get out of ICE custody. Who Can Pay the Bond? Any person (a relative, friend, the legal worker) can post the bond. However, in practice, the person posting the bond should have legal status in the U.S. If ICE discovers that the person posting the bond, called the obligor, is not here legally, it can put him or her in removal proceedings. The person presenting herself at the ICE office to pay bond will need identification. Example: Clem Clean, who resides in the U.S. without legal status, goes to the ICE office to post the bond for his friend, Tom Trouble. ICE discovers that Clem is here illegally, and arrests him, initiating removal proceedings. Where Can the Obligor Post the Bond? The obligor can post the bond at ANY ICE Enforcement and Removal branch office. This link includes a list of locations that can accept bond: www.ice.gov/ice-ero-bond-acceptance-facilities. Example: Manny’s brother (from Example 10.8-a) has the $1,500 bond to post. Manny is detained in Texas. His brother can post the bond with the removal branch of the San Francisco ICE Enforcement and Removal office. He does not have to send the money to Texas. How Does the Obligor Make the Payment to Post the Bond? The obligor can either post a bank’s cashier’s check or U.S. postal money order. The obligor cannot post a money order from any other business, such as Western Union—it must be from the post office. Additionally, a person can post the bond through a bond company, which will require collateral (often real property like a house or condominium) and a non-refundable fee. What Happens if the Person Released on Bond Fails to Show up for a Court Hearing or an Immigration Appointment? If this occurs, it is possible that the obligor will lose the bond. (This is called a breach of the bond.) Benefits of Posting Bond. If your client is successfully released on bond, much changes in terms of case strategy. First, the case slows down tremendously and the case is moved to the nondetained docket. In some cases, you will need to file a motion to change venue in order to ensure that the case is next scheduled in the court near where your client lives. Additionally, you will now have an opportunity to build a case with your client and family members outside the time and location constraints of detention. It is now possible to have family meetings. Your client can seek evidence to support her case, and additionally the client can start to build positive equities by obtaining employment, rehabilitation, etc. Many indicate even the passage of time helps strengthen the client’s case and might lead to new avenues of relief. Additionally, because the place of detention might be far from the person’s residence, witnesses and persons to support your client’s efforts to seek relief can be difficult to secure while a client is in detention. In the non-detained setting, your client will have more time to prepare and is more

6-31

Chapter 6

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 6

Immigrant Legal Resource Center June 2017

likely to have those with her to stand in support when it comes time to present a case before the court. PRACTICE TIP: Make a communication plan with your client before she gets released from custody. In order to ensure your client will make her next scheduled hearing, it is important that you know where your client is going and have a reliable means to contact her. It is best to establish where the person will be living upon release. Additionally, have permission to contact at least two people on her behalf so that you can reach out if you have not yet made contact. Remind the client that it is essential they contact you as soon as they are settled so that you can inform them of next court dates, consider a motion to change venue, and further case strategy.

6-32

CHAPTER 7 THE MASTER CALENDAR HEARING AND CONTESTING REMOVAL

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: The NTA and the Initiation of Removal Proceedings ........................................ 7-1 A Brief Overview of the Master Calendar Hearing............................................ 7-2 Preparation before the Master Calendar Hearing ............................................... 7-4 General Procedures during a Master Calendar Hearing ..................................... 7-7 Pleading to the Notice to Appear ....................................................................... 7-9 When and Whether to Concede Removability ................................................. 7-14 Special Considerations for Unaccompanied Minors and Children .................. 7-17 Evidentiary Considerations; Motions to Suppress ........................................... 7-19 After the Master Calendar Hearing .................................................................. 7-36

Many representatives discount the importance of the master calendar hearing. But a lot happens at the master calendar that requires strong preparation on the part of the representative, including a clear case strategy prior to entering pleadings. This chapter will take us through the master calendar hearing process and strategies for contesting removal. § 7.1

The NTA and the Initiation of Removal Proceedings

The DHS initiates removal proceedings by serving the respondent with a Notice to Appear (NTA) and filing the NTA with an immigration court. 1 Any of several USCIS, ICE, and CBP officers can issue the Notice to Appear. See 8 CFR § 239.1(a). Appendix B contains a sample of a Notice to Appear. One purpose of the Notice to Appear, or NTA, is for DHS to inform the respondent (the person served with the NTA), of the reasons why she has been placed in removal proceedings. It contains a charge or charges of removal under the INA that DHS alleges are the legal grounds of removal that apply to the respondent. In support of the charges of removal, the NTA contains a list of factual allegations establishing the respondent’s alienage and other facts that support the charges of removal. The NTA must include the charges of removal and the factual allegations supporting those charges. The NTA also contains a number of warnings and advisals to the person about her rights and responsibilities while in removal proceedings, such as her right to 1

Before April 1, 1997, persons placed in immigration proceedings were served an Order to Show Cause (OSC), which alleged the person was either deportable or excludable from the United States. While the master calendar hearing procedures were very similar to the procedures currently used in removal proceedings, practitioners should be aware that if a client is, or has been, in deportation proceedings, there may be certain grounds of deportability or available applications for relief that differ for those in deportation or exclusion proceedings.

7-1

Chapter 7

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9

Chapter 7

obtain counsel, her responsibility to inform the government of any change of address, and the consequences of failing to provide a change of address or failing to appear for a scheduled hearing. It may inform the person of the date of the first removal hearing, i.e., the master calendar hearing, although the NTA often states that a notice of the first removal hearing will be sent on a later date. One of the main tasks of the initial client consultation is to prepare for the master calendar hearing, if the client has not attended a master calendar hearing or has another master calendar hearing scheduled. If the client comes to you without a notice stating the next hearing date, you will have to confirm that the client is in fact in proceedings and has a court date. If the client has her Alien registration number, or “A-number,” you can call the EOIR automated system at 1-800898-7180 for information about the case, including the next hearing date. If the NTA has not been filed with the immigration court, the automated system will have no information. Please note that this manner of checking for the next hearing date will not be successful if the client provides an incorrect A-number. Using the A-number on the NTA is the best way to ensure that you are checking the right number. Sometimes clients have A-numbers from applications filed in the past with USCIS or the former INS, which may or may not be the number associated with their case in court. Whenever possible, the best practice is to personally review the client’s NTA and use the A-number on the NTA when contacting EOIR. § 7.2

A Brief Overview of the Master Calendar Hearing

The master calendar hearing (MCH) is the first hearing in removal proceedings and is similar in some ways to a preliminary hearing in other courts, in that the primary purposes of the MCH are to establish a procedural roadmap for the case and for the court to efficiently manage its docket. However, MCHs also differ from most types of preliminary hearings in that the immigration judge can make serious substantive decisions during the MCH, such as ordering the respondent’s removal and denying a pending application for immigration relief. Therefore, preparation for an MCH goes beyond reviewing administrative matters and can require a significant amount of analysis and strategizing. Typically, the immigration judge will decide three questions at an MCH: 1. Has the respondent been properly served with the NTA that ICE has filed with the court? 2. Is the respondent removable as charged on the Notice to Appear? In other words, has the respondent conceded that he is removable, or, applying the correct burden and standard of proof, does the evidence prove that the respondent is removable? 3. If so, should the person be removed, or can the person apply for some kind of relief from removal, such as adjustment of status, cancellation of removal, or asylum? At an MCH where the respondent is represented by counsel, the immigration judge will directly address counsel regarding his client’s pleadings. Pleadings in immigration court involve the respondent’s admission or denial of the factual allegations in the NTA, concession or denial of removability as charged, and request for any relief from removal should an order of removal be entered. Before proceeding with pleadings, the immigration judge will verify the respondent’s agreement to be represented by you as his counsel and will verify the respondent’s current

7-2

Tab Position 1

Immigrant Legal Resource Center June 2017

mailing address. Additionally, before proceeding with pleadings, the immigration judge will ensure that the respondent has been properly served with the NTA.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PRACTICE TIP: Many judges ask counsel to confirm that service was proper very quickly. They might say, “Do you waive formal reading of the notice to appear and concede service was proper?” very quickly right at the beginning of your client’s turn in front of the judge. Thus, it is important that you have reviewed any issues of service with your client before answering the judge.

In practice, a client may have more than one master calendar hearing. Judges will often continue a case to a subsequent master calendar hearing to allow a client to find counsel or to allow counsel time to prepare the case before pleading. Additionally, the master calendar hearing is used to manage the court’s docket. It is better for the judge to deal with preliminary issues in the master calendar hearing instead of using precious individual hearing slots on their docket for cases that are not yet ripe to be heard. For this reason, the master calendar might be used as a status conference on a case or to turn in documents prior to the individual hearing. PRACTICE TIP: If you are not ready to proceed in taking pleadings, it is important for you to ask for continuance in order to prepare. It is very important that a representative does not enter pleadings without being properly prepared. It is common practice for an attorney appearing for the first time with a client who recently retained him, to be granted additional time to prepare before entering pleadings on behalf of a client. To do this, you can either file a written motion to continue, or appear with the client at their master calendar hearing and indicate to the judge that you are requesting a continuance for attorney preparation. Keep in mind, however, that the immigration judge may question you regarding when you first met the client, when he retained you, and the steps you have taken thus far to prepare for the hearing. So it is important that you request a continuance for attorney preparation only when the request is reasonable. Important Related Advisals. If you file a motion to continue and the immigration judge does not rule on the motion in time for the next hearing, you must appear for that hearing with the client in order to avoid an in absentia removal order against your client . You may renew your request orally in front of the judge. If the immigration judge denies your request for a continuance and compels you to enter pleadings before you have had the chance to thoroughly prepare for the hearing, you should deny all allegations and the charges of removability.

7-3

Chapter 7

Often, an attorney will make a first master calendar appearance for a client before she has had the opportunity to fully investigate the charges and factual allegations. It is completely appropriate for an attorney to ask for a continuance for attorney preparation in such circumstances. If a FOIA request is pending, you should explain its importance to the judge so that adequate time may be provided before the next MCH. See Chapter 2 for more information on FOIA.

In general, the purpose of the master calendar hearing is to: 2 • •

Chapter 7

• • • • • • • • • •

advise the respondent of the right to an attorney or other representative at no expense to the government advise the respondent of the availability of free and low-cost legal service providers and provide the respondent with a list of such providers in the area where the hearing is being conducted advise the respondent of the right to present evidence advise the respondent of the right to examine and object to evidence and to cross-examine any witnesses presented by the Department of Homeland Security explain the charges and factual allegations contained in the Notice to Appear (Form I862) to the respondent in non-technical language take oral pleadings identify and narrow the factual and legal issues set deadlines for filing applications for relief, briefs, motions, pre-hearing statements, exhibits, witness lists, and other documents provide certain warnings related to background and security investigations schedule hearings to adjudicate contested matters and applications for relief advise the respondent of the consequences of failing to appear at subsequent hearings advise the respondent of the right to appeal to the Board of Immigration Appeals § 7.3

Preparation before the Master Calendar Hearing

There are both substantive steps and procedural steps that should be taken prior to the master calendar hearing. In Chapter 2, we discussed the need to complete a thorough intake with your client and gather information through FOIA and record checks. This preparation is essential to pleading to the charges on the Notice to Appear. It is not appropriate to make any concessions in pleadings without a thorough intake with your client and fact gathering. Example: Representative Ready meets his client for the first time right before the master calendar hearing. He asks the court for a copy of the NTA. His client, Barry Beware, is charged as entering without inspection or admission and charged under the grounds of inadmissibility pursuant to INA § 212(a)(6)(A)(i). Representative Ready speaks to his client for two minutes off the record. He asks the client if it is true he is undocumented. The client answers yes. He also determines that the client has only been in the United States for 4 years and is not eligible for non-LPR cancellation pursuant to INA § 240A(b). He asks if Barry is afraid of returning to his home country and Barry says yes. Representative Ready takes his turn before the judge with Barry at his side. He indicates to the judge that he is ready to plead. He admits the factual allegations, concedes removability and tells the judge that Barry will be applying for Asylum.

2

See Immigration Court Practice Manual, pages 67-68, available at www.justice.gov/eoir/vll/OCIJPracMa nual/Practice_Manual_review.pdf#page=3; see also INA §§ 240(b)(4), 240(b)(5), 8 CFR §§ 1240.10, 1240.15.

7-4

Tab Position 1

Immigrant Legal Resource Center June 2017

Example: Counsel Concession is hired by Rita Rehab, a lawful permanent resident. Rita was placed into proceedings when ICE learned of her presence from law enforcement when she was convicted for possession of a controlled substance. Rita is charged as removable for a controlled substance offense. Counsel Concession meets with Rita and determines that it is in fact true that she was arrested and convicted of a controlled substance offense. Rita tells Counsel that she had methamphetamine on her person. Counsel gets the FBI rap sheet and it shows a conviction for possession of a controlled substance. Counsel Concession pleads to the factual allegation in the Notice to Appear, stating that Rita was convicted for possession of a controlled substance, and admits the substance was methamphetamine. Counsel Concession then concedes the charge of removability for being deportable for a conviction related to a controlled substance. Counsel Concession figures, “why waste any time,” and doesn’t want to get on the bad side of the immigration judge who hates it when lawyers contest removal. A closer look at the full criminal court records shows that Rita’s criminal defender carefully pled her to the generic term “controlled substance,” and in her jurisdiction this means that the government would not be able to prove that the substance in question was in fact a substance that would trigger removability under the federal controlled substance schedules. Unfortunately, because counsel pled and conceded, the government no longer has to prove that Rita is removable. PRACTICE TIP: If a client attends the master calendar hearing and admits the factual allegations, the government no longer has to meet its burden of proving the client’s alienage and removability, or that the supporting evidence was lawfully obtained. If the client admits the allegations in court, there is no longer an evidentiary issue. Moving to suppress evidence of alienage or other allegations will no longer help because the client has already admitted the same facts in pleadings. Therefore, case strategy, particularly where a motion to suppress is contemplated, must be decided before pleadings are taken at a master calendar hearing. Procedural Readiness. Aside from completing a thorough intake and discussing case strategy with the client, there are some housekeeping issues you should deal with prior to walking into the master calendar hearing:

7-5

Chapter 7

Although Representative Ready thought he was efficient and got the necessary details to plead to such a simple NTA, he missed a couple key points. First, although Barry has no documents, he was actually waived through at a border checkpoint. He has proof of this because he was with other family members. In fact, one of the persons in the car filmed the entry with his cell phone. It also turns out that if Representative Ready had done a full intake with Barry, he would have learned that Barry’s fiancé is a U.S. citizen. Based on the facts of the “waive through,” Barry is eligible for adjustment of status should he marry his fiancé. Unfortunately, Representative Ready did not contest Barry’s manner of entry. Now that pleadings have been taken with counsel, Barry is held to the concessions of these pleadings. Some judges would require Barry to allege ineffective assistance of counsel against Representative Ready to change the pleadings and apply for relief.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Be registered with EOIR’s court e-registry system. 2. Have an E-28 on file, or ready to file, in the particular case. 3. Verify your client’s mailing address and make sure that the court has the correct address on file. If there is any doubt, come to court with a prepared Form E-33, Change of Address form. Many judges believe it is a sign that you are unprepared if you have not already confirmed your client’s current mailing address before your appearance.

Chapter 7

4. Verify your client’s best language so that you can request a court-appointed interpreter in the client’s best language for any future hearings during which the client will testify. 3 5. Obtain a copy of the client’s Notice to Appear. 4 If the client cannot provide you with a copy, you can generally obtain a copy directly from the immigration court if you have an E-28 on file. This is distinct from requesting the file through FOIA. For the limited purpose of providing the charging document, the court will make a copy for counsel if you request a copy directly from the court. Some courts may continue the MCH and direct ICE counsel to provide you with a copy of the NTA. If you do not want a delay in your case, it would be prudent to request the NTA from ICE counsel before the MCH. Substantive Readiness: 1. Check if the client has already appeared at a master calendar hearing. You will want to ensure you have an understanding of the posture of the case before appearing in court. For instance, it is possible that a client has a master calendar hearing after remand from the Board of Immigration Appeals (BIA), or simply to turn in an application after pleadings have already been taken. If you cannot determine the posture of the case from talking with your client, you may review the court’s file by scheduling an appointment with the court. In addition, you may order or schedule a time to review the recording of any prior removal hearings in the case. Check in with your local court to understand the best way to conduct a file review. You can search specific court information by visiting: www.usdoj.gov/eoir. 5 2. Determine if the NTA was properly served on your client and do not assume that it was. 3. Explain every allegation and charge of removal in the NTA to your client in terms she can understand and discuss the strategic and substantive considerations in determining how to plead at the client’s MCH. For example, discuss the pros and cons of conceding removability and applying for adjustment of status or explain why pre-completion

3

Flowing from the right to a reasonable opportunity to examine the evidence against her, present evidence, and cross-examine witnesses, a person in removal proceedings has the right to proceed in her best language. INA § 240(b)(4); 8 CFR § 1240.5; see, e.g., Ememe v. Ashcroft, 358 F3d. 446 (7th Cir. 2004). 4 As discussed in Chapter 1, proceedings after 1997 are removal proceedings and the charging document is the Notice to Appear. Prior to this time, a person was either placed in deportation or exclusion proceedings. The charging document is entitled the Order to Show Cause. Additionally, if the person is placed in asylum only hearing, they will have a referral to court, Form I-863, which is distinct from a Notice to Appear. 5 See www.justice.gov/eoir/sibpages/ICadr.htm.

7-6

Tab Position 1

Immigrant Legal Resource Center June 2017

voluntary departure may be a better strategy for a client wishing to depart the United States rather than removal. 4. Explore every relief option with your client and be prepared to state the avenues for relief that your client will pursue, if removal is ordered by the immigration judge.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

5. If making a motion, such as for a continuance, change of venue, or termination of proceedings, be prepared to make oral arguments in support of your motion. § 7.4

General Procedures during a Master Calendar Hearing

Additionally, some courts are piloting a different master calendar arrangement. In some courts, one judge conducts only master calendar hearings and no individual or “merits” hearings. These courts will keep a matter on master calendar appearances until all applications and supporting documents have been submitted, then schedule an individual hearing before a different judge. It is important to check in with the local court or local practitioners to know what to expect from a particular judge. Additionally, you can observe a master calendar in session as these are open proceedings in most cases. On the day of the master calendar hearing, you should meet your client outside the courtroom where her hearing will be held or in the designated waiting room of the court. We recommend that you meet with your client at least a half hour before the hearing will begin. Depending on your local immigration court, we suggest that you consider telling your client to be at the court and in line to enter at least an hour before the hearing starts in case there are crowds. Your client must call you and call the immigration court if she has an emergency and is going to be late for her hearing. Failure to do so could result in your client being ordered removed in absentia. Enter the courtroom as early as possible with your client. You should check in, typically by giving the clerk the last three digits of your client’s A number. Usually, the sooner you check in, the sooner your case will be called. Nonetheless, this practice varies by court. Some courts go straight down the list as it appears on the docket. If you are a pro bono attorney, mention this. It may bump your client’s case to the beginning of the calendar. When the immigration judge enters the courtroom, everyone rises. Once the immigration judge takes the bench and everyone is sitting, she will begin calling cases in the order designated by her preferences. When your client’s case is called, approach the table with your client and have a

7-7

Chapter 7

As discussed above, the master calendar hearing may serve various functions. The main functions are to acknowledge proper service of the Notice to Appear and answer to the allegations and charges of removability. In addition, a master calendar hearing can serve as a basic case check-in. Sometimes, the court may be waiting on a decision from USCIS on a related application before proceeding. In other cases, the court may have scheduled the master calendar for filing of documents or to discuss legal arguments or motions made in the case. Judges often allow immigrants without counsel more than one MCH continuance to obtain counsel or otherwise prepare to move forward with their cases. When a case comes back to the immigration judge after remand, the court will set the case for a master calendar hearing to determine how to proceed on remand. The master calendar thus serves many purposes related to case management in addition to addressing the charges of removal.

Chapter 7

seat. If your client needs an interpreter and one is not there, alert the immigration judge since the immigration court is required to provide interpretation services for all hearings.6 When you are ready to proceed, the immigration judge should begin an audio recording of the hearing. 7 Your client may also be asked to verify her identity and confirm that she wishes you to represent her for the proceeding. The immigration judge will ask for counsel to state their “appearances.” You should identify yourself as the respondent’s counsel and the ICE attorney will do the same. Provide the immigration judge with the original EOIR-28 (if you did not file it electronically in advance or if the e-filed copy has not yet made it to the judge’s file) and the original EOIR-33/IC if needed (copies of which you must also serve on the ICE attorney). 8 If it has not already been done, the immigration judge will inquire if you are prepared to enter pleadings. If it is your first appearance with the client and you have recently initiated representation, you may request a continuance for attorney preparation time before you plead. If you have already appeared with the client, or you are otherwise prepared to plead, you will be asked to do so. What if the Client Doesn’t Show Up? It is possible that despite your clear communication with the client regarding when and where to meet before the master calendar and the consequences of failing to appear, the client does not show up for the hearing. If this happens, your client does take a risk of being ordered removed in absentia. However, as an advocate, you can take certain steps to decrease the chances that an in absentia order will be entered. •

If the client has not arrived for the hearing when his case is called, you should inform the judge that your client has not arrived and that you wish to wait for your client. The BIA and circuit courts have found that if the IJ is still on the bench hearing other cases at the time of the respondent’s arrival, or only adjourned a few minutes before the respondent’s arrival, the respondent may have grounds for reopening on grounds that he did not fail to appear for his hearing. Therefore, you should wait for your client to arrive until the conclusion of the master calendar session before making your appearance for the hearing. Many courts refer to this as “trailing” your case. In other words, once the judge calls your case, you ask if your case could be trailed, which means you want it to be heard after other cases.

•

If a client does not arrive at the designated time and place you discussed with him, you should maintain communication with your client regarding his expected time of arrival and the reasons for his delay. If the client has not appeared by the very end of the master calendar session, be prepared to present facts that would qualify as “exceptional circumstances” if the client were to file a motion to reopen an in absentia removal order. Also, update the court on your most recent communication with your client to show the client’s intent and efforts to arrive on time for the hearing. If the judge and ICE counsel are convinced that the respondent would have a good chance of eventually having his proceedings reopened if an in absentia order is entered, the judge may realize that it

6

ICPM 4.15(f). ICPM 4.11; 4.15(f). 8 ICPM 4.15(h). 7

7-8

Tab Position 1

Immigrant Legal Resource Center June 2017

•

Additionally, you can still insist that ICE counsel meet their burden of proof to establish removability. If there is anything amiss in how they have charged your client, you should still raise any arguments you have. For instance, if you do not think they can prove alienage, you should argue this if possible.

•

If the judge issues an in absentia removal order despite your efforts, you must communicate this with the client immediately and inform him that he must file a motion to reopen based on exceptional circumstances within 180 days of the entry of the order. There is no appeal of an in absentia removal order and the motion to reopen must be filed with the immigration court. See Chapter 13, Motions to Reopen, § 13.10. § 7.5

Pleading to the Notice to Appear

At the master calendar hearing, a respondent enters pleadings and responds to the charges in the Notice to Appear (NTA). A person may have more than one master calendar hearing, to allow the individual to find counsel and to prepare the legal strategy of the case. Often, the respondent does not answer to the charges on the NTA until the second master calendar hearing, either because he or she asks for more time to find an attorney or because the attorney asks for more time to prepare the case. The NTA must include the charges and the factual allegations. In other words, it must state the law and the supporting facts that show that the person is a removable alien. Example: ICE charges Mateo Guerra, whose visitor’s visa expired, with being deportable under INA § 237(a)(1)(C) for being present in the U.S. beyond the authorized period of stay. ICE says that Mateo is deportable because he is: (1) a citizen of Mexico; (2) is not a U.S. citizen, and (3) present in the United States as a visitor, but stayed in the U.S. beyond the authorized period of stay. The person must plead to (answer) the allegations and charges in the Notice to Appear. The person can either admit or deny the allegations and concede or contest the charges of removal. The judge will most often rule on two questions: 1. Is the person really a removable alien, as charged on the Notice to Appear? In other words, can ICE prove that the Notice to Appear charges are correct? 2. If so, can the person apply for some kind of relief from removal or means of immigrating? If there are doubts raised regarding a respondent’s eligibility for some

7-9

Chapter 7

would be more efficient and justified to postpone the hearing to a different date than to issue an in absentia removal order. The clearest examples of exceptional circumstances are death of a family member or serious illness of the respondent or a family member. Generally, traffic delays and car trouble are not considered exceptional circumstances, absent other extenuating circumstances. Whatever the reason for the client’s delay, you should advocate for a continuance rather than an in absentia removal order by providing the court with as much information and evidence as possible. You should further present facts which show that the client’s tardiness is due to circumstances beyond his control and not due to any unreasonable act or failure to act on his part. Sometimes, this information or evidence can include specific facts regarding the client or his case, such as his age, physical or mental health issues, or other special circumstances of the client.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

relief that she wishes to pursue, the judge will usually schedule an individual hearing for the application in question, but with a briefing schedule on the issue of eligibility. Advocates should never just automatically admit the allegations in the Notice to Appear. DHS officials often make technical mistakes on the Notice to Appear. They may get the person’s entry date wrong (which could hurt the person later)—or even the person’s nationality. Always check with your client to make sure the Notice to Appear is correct. If ICE charges that the client has committed wrongdoing, don’t accept their word. Check to see whether ICE is right and whether they can prove it in court. Additionally, even if you believe the charges are correct, it is good practice to deny charges and allegations to hold the government to their burden of proof. If you are uncertain of any of the facts contained in the notice to appear, or have any possible argument that the ground of removal does not apply to your client, you should deny the charges. PRACTICE TIP: Never admit to criminal allegations and grounds of removal in pleading. Hold the government to its burden of proof, and allow the judge to make the ruling. This could preserve important arguments for your client in the future. Additionally, the government will then need to provide you with whatever proof they have of the alleged convictions, which could help you prepare your case. If ICE charges that your client is removable on criminal grounds, it is important to carefully review the criminal record. If the person is in fact removable on the alleged criminal grounds, and particularly if he or she has no relief from removal, it is essential to see if there is a possibility of post-conviction relief in the criminal proceedings. The person may be able to obtain a change in the criminal record that will enable her or him to overcome the asserted ground of removability. This type of case should be referred to an experienced immigration or criminal defense attorney. A.

Burden of Proof and Pleadings

ICE must always prove that the person is an alien. 9 If there is any chance that they do not have proof that the client is not from the United States, or the information was gathered unlawfully, you will want to deny the allegations related to your client’s place of birth and nationality. See § 7.8 regarding motions to suppress. If the person in removal proceedings was “admitted” to the United States, either as a permanent resident or in some other visa status, she will be charged under INA § 237 and ICE must prove that he or she is deportable by “clear and convincing evidence.” 10 If an ICE or CBP official charges that the person is undocumented and entered without inspection, that person will be charged with the grounds of inadmissibility under INA § 212. Applicants for admission (including those who entered without inspection) bear the burden of proving that they are “clearly and beyond doubt entitled to be admitted and not inadmissible or

9

8 CFR § 1240.8(c). See also Murphy v. INS, 54 F.3d 605 (9th Cir. 1995). INA § 240(c)(3).

10

7-10

Tab Position 1

Immigrant Legal Resource Center June 2017

that [they are] lawfully present in the U.S. pursuant to a prior admission.” 11 However, always remember that ICE must first prove alienage. 12 B.

The Moment of Taking Pleadings

1. Do you waive formal reading? Usually the judge will ask you if your client waives a formal reading of the charges, stipulates to his identity as indicated by his name and date of birth on his NTA, that you have reviewed the document with your client, and are prepared to enter pleadings on your client’s behalf. Make sure you have actually reviewed the client’s name on the NTA and any other biographical information, such as birthdate that are separate and apart from the numbered allegations! 2. “Do you concede proper service?” If the service of the NTA/OSC stops statutory eligibility for cancellation, suspension, NACARA, or voluntary departure, consider grounds for challenging proper service. If the client did not receive the NTA in person and sign for it, there may be arguments that the NTA was not properly served. For certain relief, such as cancellation, the period of time needed to establish eligibility stops with the service of the NTA. It might be important to raise arguments regarding whether the NTA was properly served to preserve eligibility for relief. In these cases, be careful! The judge usually asks if you waive formal reading of the charges in court and stipulate to proper service very quickly at the beginning. If you want to contest proper service, you will have to clearly indicate that you are doing so. In such cases, the judge will generally make sure the record at least reflects that the client was properly served by the date of the master calendar hearing. In other words, this only helps your client if she will have gained enough time for eligibility by the date of the hearing. Procedural challenges might irk the judge, but in certain cases making such challenges are necessary to zealously represent your client. Example: You are at a master calendar hearing for your client, Barbara Bliss. This is her first master calendar after her old deportation case was reopened. In her prior proceedings, she failed to appear for her first hearing and was ordered deported. In her motion to reopen, filed 10 years later, Barbara establishes that she never received proper notice of her court hearing, and for this reason her case is reopened. In such a case, you do not want to concede proper service of the original Order to Show Cause.

11 12

INA § 240(c)(2). 8 CFR § 1240.8(c).

7-11

Chapter 7

In court, the immigration judge will ask if you are ready to plead to the NTA. You should only say “yes,” if you have conducted a thorough intake with your client, have reviewed the information contained in the NTA, and developed a case strategy for how to proceed with the client’s case. If you are not ready, you should ask the judge for a continuance for attorney preparation. Once you indicate that you are ready to proceed, the IJ will ask you a series of questions, usually very quickly, with the expectation that you are prepared and familiar with how pleadings are taken.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Under the INA, “if personal service is not practicable … service by mail … shall be sufficient if there is proof of attempted delivery to the last address provided by the alien in accordance with [INA § 239](a)(1)(F).” However, if DHS mailed the NTA to the last address it has on file for your client, but your client did not receive the NTA, proper service has not been achieved. 13 Following is a checklist to ensure that your client was properly served with the NTA. •

Chapter 7

• • •

If the NTA was served by mail, ensure that it contains the client’s correct address, carefully checking for spelling or other clerical errors. If the NTA was served by mail, check with your client if she actually received the NTA. Ensure that the NTA filed with the court has an original signature of the issuing officer. Ensure that the issuing officer is authorized to issue NTAs under 8 CFR § 239.1(a). 3. “How do you plead?” (Allegations and charges) a. Factual allegations

The judge will ask you to “admit” or “deny” the numbered factual allegations. You can “counterallege” information as necessary. For example, if ICE indicates that your client entered at an unknown location on an unknown date, you may deny that allegation and counter that your client entered on a specific date and location. PRACTICE TIP: Be careful! The judge will expect that you plead to the numbered allegations, but it is also important to inspect whether the NTA alleges your client is an arriving alien, or someone present without permission, or previously admitted and deportable. These are check boxes that appear on the NTA above the numbered allegations. If you believe that your client is wrongfully labeled, you should correct this in pleadings as well. b. Charges of removability The judge will expect you to indicate whether you “concede” or “contest” the charges of removability. This is a separate question than whether you admit or deny the facts. Sometimes, you will deny facts and contest removability. For instance, you might not think the government has proof of a conviction. You would deny the fact of the conviction and contest removability based on the same conviction. However, in some cases, the government might have proof of the facts, but you still don’t think those facts prove that your client is removable. In these cases, you might admit all the facts, but still deny removability. For instance, the government has alleged that your client got a green card through marriage. ICE might further allege that the client appeared for an interview to remove conditional residence and was denied based on an officer’s finding of fraud. The government might then charge your client as removable for marriage fraud. You might agree with all the factual allegations about when your client became a permanent resident, and that the interview took place, but you would deny that there was fraud in the process and contest removability.

13

Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001).

7-12

Tab Position 1

Immigrant Legal Resource Center June 2017

PRACTICE TIP: If your client is detained on a mandatory detention ground that you are contesting, you can simultaneously deny the charge of removal and request a bond hearing, referred to as a “Joseph hearing,” pursuant to Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). At the Joseph hearing, you can present evidence that the government is “unlikely to prevail” on the charges relating to the respondent’s mandatory detention. If the IJ grants bond, he may simultaneously terminate removal proceedings.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

4. “What relief are you seeking?”

If you are contesting removal, you should indicate that you are contesting removal and should not have to state relief options until the matter of removability is decided. It is not in your client’s interest to disclose facts in applications for relief unless and until removability has been determined by the court. Some judges ask that you state possible relief should removability be upheld. If you are contesting removal, it is a good idea to consider whether it is important to fight this request depending on the circumstances of your case. PRACTICE TIP: Before asking for voluntary departure at a hearing, it’s important to analyze carefully whether voluntary departure is in the client’s best interest. 14 See discussion in Chapter 9. 5. Designating a country of removal If the allegations on the NTA are sustained or admitted, showing that the respondent is removable, the respondent will also be asked to designate a country for removal. If the person is applying for asylum, she should not designate a country of removal because by so doing she is admitting she can return to the country where she fears persecution. Therefore, the representative must instead say, “We decline to designate a country of removal, and request relief in the form of asylum, withholding of removal, and relief under the Convention Against Torture.” “Declining to designate” a country of removal shows the court that the applicant fears she will not be safe in her home country and has no place to go. The court will then likely designate the person’s home country as the country of removal. If the person can apply for some sort of relief, such as asylum, withholding or relief under the Convention Against Torture (CAT), this should be stated at the end of pleading to the allegations and charges on the NTA. If an asylum application (Form I-589) is to be submitted with the court at this time (meaning that this is not a case where an affirmative application was referred to immigration court by the Asylum Office of the USCIS), the judge will ask if the application is ready for submission in that moment. If it is not, the judge will set a second master calendar hearing to file the asylum application (or before which the respondent must “lodge” or file the asylum application at the clerk’s office). If the person is applying for other types of relief, the 14

See www.legalactioncenter.org/litigation/voluntary-departure.

7-13

Chapter 7

Be prepared to state what forms of relief the client is eligible for, including voluntary departure. You should indicate all forms of relief that apply to your client. Do not just indicate the strongest application. Usually, it is in your client’s best interest to pursue all avenues of relief.

judge might set a deadline for submission of the other applications to the court, but not require another appearance. All applications must be submitted to USCIS for biometrics collection and also filed with the court by the court’s deadline. See Chapter 9 for information on applying for relief.

Chapter 7

After the application is filed, the judge will schedule another longer hearing to hear the case and make a decision on the application. This is called the merits hearing, regular hearing or “individual hearing.” The next chapter will discuss preparing for the individual hearing. The Best Defense Is Citizenship! Make sure you explore the possibility that your client is a citizen of the United States by operation of law. Only non-citizens are subject to removal! If your client’s parents or grandparents are U.S. citizens, check to make sure your client did not derive or acquire citizenship as a child. See www.ilrc.org/resources/naturalization-quick-reference-charts for information on derivation and acquisition of citizenship. For more information about naturalization, see ILRC’s manual, Naturalization and U.S. Citizenship: The Essential Guide. § 7.6

When and Whether to Concede Removability

If there is a question about the legality of your client’s arrest, or the fundamental fairness of the government’s evidence against him or her, obviously, you do not want to concede removability because you may be able to suppress the evidence obtained against your client, and get the removal proceedings terminated. See § 7.7 below. However, this is not the only time that you would want to deny the allegations in the NTA. When you are representing a permanent resident who is being charged with a ground of deportability, where the government bears the burden of proving removability by clear and convincing evidence, you should not concede deportability. This is particularly true when the ground of deportability charged is a criminal conviction. First of all, only certain documents are admissible to prove the existence of a criminal conviction in most contexts. In addition, it is the government’s burden to prove that what your client plead to, or was convicted of, falls within the particular ground of deportation charged. 15 Many criminal convictions do not trigger deportability because state criminal statutes often define certain crimes differently than federal statutes and therefore, they do not fall within the applicable ground of deportation. Further, criminal statutes are often divisible, meaning that they prohibit both conduct that does and conduct that does not fall within the grounds of deportation. Noncriminal grounds of deportability too, such as false claims to U.S. citizenship, may be successfully challenged. 16 Since the government is required to prove deportability by clear and convincing evidence, it rarely makes sense to concede deportability, even if your client is eligible for some form of relief from removal. Furthermore, if you make a mistake and concede removability incorrectly, when your client has a defense to the charge, your client may be bound by your error. See Perez-Mejia v. Holder, No. 07-70118 (9th Cir. April 21, 2011). Therefore, do 15

Chapter 5 contains detailed information on how criminal statutes are analyzed and arguments to rebut the government’s allegation that your client is deportable. 16 See Chapter 3 and 4.

7-14

Tab Position 1

Immigrant Legal Resource Center June 2017

not concede removability unless you are absolutely certain that your client is deportable and that nothing is to be gained by contesting removability.

Example: Let’s say John has been a permanent resident for 10 years and he has two burglary convictions on his record, both committed after he had been an LPR for over eight years. He is now in removal proceedings, and the NTA alleges that he has been convicted of two crimes of moral turpitude after admission. 18 Let’s assume he is eligible for LPR cancellation of removal. 19 Why not concede deportability and just apply for cancellation of removal? There are at least two good reasons: (1) a grant of cancellation of removal is not guaranteed, and (2) if cancellation of removal is granted once, it can never be granted again, meaning that if John is found deportable for some other reason any time in the future, he will be ineligible to apply for cancellation of removal again, no matter how strong his equities are. 20 Thus, John should contest that he is removable because prevailing on those arguments is a much better resolution for him. Even if a permanent resident is charged with a ground of inadmissibility, he or she has the right to due process, meaning that if he or she is to be deprived of LPR status, the government may only do so in a proceeding in which the government is the both moving party and bears the burden of proof. Kwong Hai Chew v. Colding, above. Therefore, regardless of whether your client is charged with an inadmissibility ground as a returning resident or is charged with a deportability ground, it is wise not to concede the charges, and to put the government to its burden of proof, unless doing so would be an exercise in futility, and your client is eligible for some form of relief, or your client is (lawfully) detained and has no relief available to him and just wants to get out of custody and go back home. 21

17

INA § 237(a)(2)(A)(i)(I); see also Chapter 5. INA § 237(a)(2)(A)(ii); see also Chapter 2. 19 See Chapter 4 on LPR Cancellation of Removal. 20 INA § 240A(a); see Chapter 4. 21 See Chapter 9 for detailed information on detention and representing the detained client. 18

7-15

Chapter 7

Example: John has been permanent resident for three years when he is convicted of burglary. The government issues an NTA alleging that he is deportable because he has committed a crime of moral turpitude with a potential one year sentence within five years of his admission. 17 The crime of burglary as described in the statute that he was convicted of is defined as an entry into a building, house or other structure with the intent to commit larceny or any felony. Entry to commit any felony is not a crime of moral turpitude and that statute is not divisible. Therefore, the government can’t prove that John’s conviction makes him deportable as charged. John, therefore, should not concede that he is deportable, because the government cannot meet its burden of proof on this issue. See Chapter 5 for more information about crime grounds of deportability.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

A.

Pre-Conclusion Voluntary Departure vs. Removal Order: What to Do When a Client Wants to Concede Removability and Depart the United States Immediately

Sometimes, a client who may have grounds for challenging removability expresses that she wishes to return to her country and does not wish to fight her removal case. Other times, clients may decide not to fight their removal case because of the low chance of successfully challenging removability and the lack of any relief from removal. A client’s personal circumstances can also play a significant role in the client’s wishes to immediately return to his country. In such situations, clients often want to do whatever needs to be done to ensure that they are allowed to depart the U.S. as soon as possible after their master calendar hearing. It is ultimately the client’s decision whether to contest removability, pursue relief options, or expeditiously depart the United States. It is your role as an advocate to ensure that the client’s decision is knowing, intelligent, and voluntary. As part of ensuring that the client understands the various consequences of contesting and conceding removability, you should explain to the client that concessions in pleadings are final once the immigration judge enters an order of removal (absent a significant change or interpretation in law or a significant violation of due process). Therefore, the client must carefully consider the pros and cons of conceding removability. Once aware of the finality of conceding removability, the client may benefit from seeking preconclusion voluntary departure under INA 240B(a) (sometimes referred to as “pre-completion voluntary departure”), rather than accepting an order of removal. The primary differences between removal and voluntary departure are: 1. Unlike a removal order, voluntary departure does not trigger a five-year period of inadmissibility (although the client may nevertheless be inadmissible under the unlawful presence bars); and 2. Voluntary departure gives the respondent time to get their finances and other commitments in order, while a removal order that is not appealed will result in the client’s detention and removal. 3. The criminal penalties for illegal re-entry are less severe. The INA distinguishes between voluntary departure granted by the IJ at the outset of a removal proceeding (or before the end of proceedings) and voluntary departure granted at the conclusion of a removal proceeding. Pre-conclusion voluntary departure is easier to obtain and gives the IJ authority to grant up to 120 days to depart the United States, as compared to 60 days for “postconclusion” voluntary departure. Pursuant to INA § 240B(a), voluntary departure before the conclusion of removal proceedings can be granted for a maximum of 120 days and is subject to the following conditions set forth in the regulations. The respondent must (1) make the request before or at the master calendar hearing at which the case is initially calendared for a merits hearing; (2) make “no additional requests for relief”; (3) concede removability; (4) waive appeal of all issues; and (5) not have been convicted of an aggravated felony and not be deportable under INA § 237(a)(4) (security grounds, including terrorism). Whether to grant pre-conclusion voluntary departure is discretionary and the immigration judge or ICE counsel may seek to conduct an evidentiary hearing, although this is rare. If your client

7-16

Tab Position 1

Immigrant Legal Resource Center June 2017

has specific negative equities, he will benefit from submitting evidence or testimony to show that he is deserving of a positive exercise of discretion. Oftentimes, ICE counsel will agree to preconclusion voluntary departure if you approach them in advance of the hearing and inform them that your client will not be contesting removal or seeking relief. § 7.7

Special Considerations for Unaccompanied Minors and Children

In many ways, MCH preparation and procedures for a UAC or other child-client is no different than preparing for other MCHs. However, there are a few dissimilarities you should be aware of if you are representing a child in removal proceedings. Communication with, and Involvement of, Parent or Guardian

If a child is a designated UAC, he has a parent or legal guardian to act as his custodian if ORR has released him from custody. It is crucial that you clearly communicate with the child as well as his caretaker as to when and where to meet you for the MCH, the purpose of the MCH, and the consequences of failing to appear or arriving late. If the unaccompanied minor is living with a parent or guardian and is not a designated UAC, make sure to communicate clearly with the primary caretaker(s) as to when and where to bring the client for the MCH. It is also helpful to give the parent or guardian an idea of what will happen on the day of the hearing, but without violating attorney-client confidentiality or revealing privileged communication. Make sure to answer any questions or concerns the parent or guardian may have. If the UAC is in ORR custody, you must ensure that you confirm with the UAC’s designated caseworker, as well as with your client, that he will arrive for the MCH in a timely manner. If your client is living with an undocumented parent or guardian, it could be risky for that person to come to court. However, if ORR has released the child to an undocumented parent or guardian, some judges may require that adult to attend the hearing with the client, as she is the person in charge of ensuring the child’s appearance for future hearings and for keeping the child’s attorney informed of any change of address. B.

Communication with Child

Keep in mind that although the master calendar hearing may seem straightforward to you, it can be very intimidating for your child client. She may be concerned that the immigration judge might order her into custody or that something bad might happen to her. She may have had bad experiences with “officials” in the past—in her home country or here in the United States—and you should be sensitive to that possibility. Reassure the child that you will be there with her at the hearing and that she can turn to you if she has any questions or problems. In other words, be 22

6 USC § 279(g).

7-17

Chapter 7

An unaccompanied alien child (UAC) is defined as a child who: “has no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody” at the time the client is apprehended by DHS. 22 To be a UAC, the child must be designated as such by DHS, regardless of whether the client turns 18 during the course of his removal proceedings.

A.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

aware that a child-client may not understand the purpose and procedures of the MCH the first time you explain it. Be prepared to provide ample reassurance to your client that he will remain safe during the hearing. C.

Proper Service of the NTA on Minor Respondents

Chapter 7

As previously discussed, determining whether your client was properly served with the NTA is an important part of preparing for an MCH. If you are representing a child client, whether designated as a UAC or not, be aware of specific regulations dealing with child respondents, as they may be important in determining whether your client was properly served with the NTA.

D.

•

Service of Form I-770, Notice of Rights and Disposition (8 CFR § 236.3(h)): DHS must give all children placed in removal proceedings a Form I-770, regardless of whether they are apprehended with their parents. If the child is under 14 years at the time of apprehension, DHS must explain the I-770 to the child in a language she can understand. If an I-770 was not properly served on the child, you should investigate the option of pursuing termination of the removal proceedings.

•

Service of Form I-862, Notice to Appear (8 CFR § 103.8(c)(2)(ii)): In cases of children under 14 years of age, the NTA shall be served upon the person with whom the child resides; whenever possible, DHS shall also serve the “near relative, guardian, committee, or friend.” If a parent is present in the United States, the parent must be served with the child’s NTA. 23 If the child is in ORR custody, DHS must serve the head of the ORR facility where the child “resides.” If the child is released from ORR custody, the NTA must be served on the child’s ORR sponsor. Violation of any of these requirements may give grounds for you to challenge proper service of the NTA. Unaccompanied Minors Filing for Asylum

If your UAC client has, or will file, an application for asylum, initial jurisdiction of that application will lie with USCIS unless ICE or CBP have explicitly revoked the UAC designation. Some immigration judges will terminate removal proceedings in these cases and others will administratively close the removal proceedings until USCIS issues a recommended approval of the asylum application. The procedures largely depend on ICE’s policy and the immigration court’s practice in each locality. Become familiar with how immigration judges deal with UAC asylum applicants and be prepared to provide the court with proof that the asylum application has been filed with USCIS. Such proof can be provided during the MCH or prior to an MCH, along with a written motion for termination or administrative closure. E.

Applicants for Special Immigrant Juvenile Status

If your child-client qualifies for SIJS, you should inform the immigration court during the MCH and be prepared to provide the court with detailed information on “where in the process” the client’s case is, at the time of the MCH. For example, be prepared to provide an estimate of when you expect the state court order to be issued and/or when the I-360 petition to be filed or 23

Matter of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002) (en banc).

7-18

Tab Position 1

Immigrant Legal Resource Center June 2017

adjudicated. Immigration courts will generally grant continuances to allow the child to file the appropriate state court petition, as long as you can show reasonable progress and likelihood of success. Once the I-360 petition is filed, you may seek administrative closure of the removal proceedings until the petition is granted by USCIS. The immigration judge will request that you seek to re-calendar the case once the I-360 has been approved and the child is ready to adjust status. F.

Child in Removal Proceedings with One or Both Parents also in Proceedings

§ 7.8

Evidentiary Considerations; Motions to Suppress

General Rules of Evidence in Removal Proceedings

Although the federal rules of evidence are not applicable to removal proceedings, 24 evidence submitted by the government to establish the inadmissibility or deportability of permanent residents must comport with due process. Evidence is only admissible if it is probative and its admission would not be fundamentally unfair. Saidane v. INS, 129 F.3d 1063 (9th Cir. 1997). In Saidane, the 9th Circuit Court of Appeals held that the presentation of hearsay evidence was fundamentally unfair where the government made no effort to call an admittedly available witness and relied instead on that witness’s damaging hearsay affidavit. Similarly, in Cunanan v. INS, 25 the 9th Circuit held that “the government must make a reasonable effort … to afford the alien a reasonable opportunity to confront the witnesses against him or her. This duty is not satisfied where the government effectively shifts the burden of producing its witness onto the alien.” Cunanan v. INS. In other words, the government may not use an affidavit from an absent witness unless it first establishes that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005). 24

Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983); Dor v. District Director, INS, 891 F.2d 997, 1003 (2nd Cir. 1989). 25 856 F.2d 1373 (9th Cir. 1988).

7-19

Chapter 7

Sometimes, if a child enters the United States separately from one or both parents, she may be placed in removal proceedings separately from her parents, even if her parents are also in removal proceedings. In such cases, your preparation before the MCH must include a full assessment of independent relief options for your client, particularly SIJS. If such options are not available, but the client’s parents have a relief application pending in immigration court, such as asylum or adjustment of status, you may request a consolidation of the child’s removal proceedings with her parent’s. The decision whether to seek consolidation of a child’s case with her parent’s case should be made very carefully, as in some circumstances, the consolidation may not benefit the child. For example, if the child’s parent is seeking cancellation of removal in immigration court as the only form of relief, the child will not benefit from consolidating her case, since she cannot derive benefits if her parent’s cancellation application is granted. So it is important not to assume that a child will always benefit from consolidation of her case with her parents. Each case should be assessed individually from a legal and strategic perspective.

A.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

Practitioners should be aware, however, that Form I-213 26 is considered presumptively reliable and admissible in removal proceedings without giving the alien the opportunity to cross-examine the document’s author, at least when the noncitizen has put forth no evidence to contradict or impeach the statements in the report. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); see also Felzerek v. INS, 75 F.3d 112 (2nd Cir. 1996) and Kim v. Holder, 560 F.3d 833 (8th Cir. 2009). Nevertheless, where the admission of the I-213 would be fundamentally unfair, it can be challenged. For example, in Murphy v. INS, 27 a finding of deportability was reversed where the BIA’s determination was based on an inaccurate I-213 for which information was provided by a biased INS informant. Another example is a Fifth Circuit case in which it reversed a finding of alien smuggling where the person who was allegedly smuggled had already been deported, and the government was relying on his hearsay testimony, which he gave in Spanish but which INS agents had written down in English. The court found that the respondent was entitled to cross examine the INS agent on his ability to speak Spanish fluently before the statement could be relied upon. Hernandez-Garza v. INS, 882 F.2d 945, 947-48 (5th Cir. 1989). PRACTICE TIP: The information in Form I-213 must show an individualized basis for finding that the person charged is an “alien.” Since ICE agents are often careless when preparing I-213s, practitioners should always ask to examine them before pleading to the Notice to Appear. When someone is alleged to be removable based on a criminal conviction, only certain documents can be admitted into evidence. 28 Furthermore, establishing the existence of a conviction, by itself, does not necessarily establish that a noncitizen falls within a particular inadmissibility or deportability ground. This is a very complex issue that is discussed extensively in Chapter 5. B.

Suppressing Evidence in Removal Proceedings

An immigration attorney or respondent can suppress evidence based on constitutional violations of the Fourth and Fifth Amendments as well as based on violations of statutes and regulations controlling the conduct and authority of immigration officers. For instance, INA § 287 sets the conditions under which immigration officers may investigate, search for, and arrest individuals believed to be in the country illegally. Immigration officers may not violate these provisions, even where the statute imposes additional limits on their authority not required by the Constitution. If such violations occur, and ICE obtained evidence of alienage or removal based on these violations, an advocate can file a motion to suppress any evidence that was the result of illegal conduct. While many of us are familiar with this concept in the criminal context, suppressing evidence in immigration proceedings is more difficult and less common. In INS v. Lopez-Mendoza, the Supreme Court held that the Fourth Amendment exclusionary rule generally is not applicable in deportation proceedings. 29 The Court found that the costs of the 26

Form I-213 is the “Record of Deportable Alien” used by immigration officials as the basis for the Notice to Appear. 27 54 F.3d 605 (9th Cir. 1995). 28 See INA § 240(c)(3)(B). 29 INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

7-20

Tab Position 1

Immigrant Legal Resource Center June 2017

exclusionary rule outweighed the likelihood of its deterrent effect on constitutional violations, but it left open the possibility that specific egregious facts might be an exception. 30 On the other hand, courts have held for a long time that when the government has obtained its evidence of removability in violation of due process, such evidence is inadmissible. 31 The Board of Immigration Appeals held in 1980 that under certain circumstances, the conduct of the government during an illegal search and arrest can be so egregious that the use of such evidence against the respondent would be fundamentally unfair, and would be a violation of due process. 32 In addition, most courts agree that dragnet street sweeps and entries into homes without a warrant violate the Fourth Amendment.

1. Arrests and subsequent statements made by the noncitizen The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The exclusionary rule provides that evidence seized during an unlawful search cannot constitute proof against the victim of the search, and this prohibition extends to indirect as well as to direct products of such invasions, including verbal evidence. Wong Sun v. United States, 371 U.S. 471, 484 (1963); United States v. Crews, 445 U.S. 463 (1980). However, in Lopez-Mendoza, the Supreme Court held that as a general principle, the exclusionary rule does not bar the admission in civil deportation proceedings of evidence obtained as a result of an unlawful seizure. 33 The Court, however, expressly left open the question whether exclusion of evidence might be appropriate if the evidence were obtained by “egregious violations of Fourth Amendment or other

30

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (“Our conclusions concerning the exclusionary rule’s value might change if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread. Finally, we do not deal here with egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained”) (internal citations omitted). 31 See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961). 32 Matter of Toro, 17 I&N Dec. 340 (BIA 1980) (“The circumstances surrounding an arrest and interrogation … may in some cases render evidence inadmissible under the due process clause of the fifth amendment.”) 33 INS v. Lopez-Mendoza, 468 U.S. 1032, 1053 (1984).

7-21

Chapter 7

Therefore, the practitioner preparing a motion to suppress on behalf of a client must look for Fourth Amendment search and arrest issues; whether law enforcement activities affected the fundamental fairness of the proceedings under the Fifth Amendment; and the conduct of the ICE agents during the arrest and search, including the method and length of interrogation, whether the agent made misrepresentations to the client, and any regulation that the ICE agents may have violated.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” 34

Chapter 7

2. Was the Fourth Amendment violation egregious? What amounts to an egregious violation varies by circuit. 35 The Second, Third, Eighth, and Ninth Circuits have adopted the exception for egregious Fourth Amendment violations as the law of the circuit. However, only the Ninth Circuit has found facts sufficiently egregious to require suppression; other circuits have remanded for further fact finding. 36 In the Ninth Circuit, an egregious violation consists of either a deliberate violation of the Fourth Amendment or conduct that a reasonable officer should know violates the Constitution. 37 This definition is based on an implied function of the exclusionary rule to safeguard judicial integrity. 38 The Ninth Circuit has emphasized that the federal courts must not disregard deliberate violations in the interest of obeying the judicial oath to uphold the Constitution. 39 The BIA, like the circuit courts following Lopez-Mendoza, has focused on whether admission of contested evidence was fundamentally unfair, rather than on the probative value of the evidence. 40

34

Id. at 1050-51. However, none of the circuit courts applying this have found that it is a two pronged requirement of transgressions of fundamental fairness and undermining the probative value of the evidence. Rather, courts have primarily looked to the question of fairness and the egregiousness of the officers’ behavior, matching the criminal exclusionary principle that the probative value of evidence is irrelevant to the exclusionary principle, and that a “search prosecuted in violation of the Constitution is not made lawful by what it brings to light.” Byars v. United States, 273 U.S. 28, 29-30 (1927). For example, in AlmeidaAmaral, the Second Circuit said that a fundamentally unfair violation of the Fourth Amendment is considered egregious despite the probative value of the evidence obtained. 35 Almeida-Amaral v. Gonzales, 461 F.3d 231, 236 (2nd Cir. 2006); Cotzojay v. Holder, 2013 WL 3927605 (2nd Cir. 2013); Oliva-Ramos v. Attorney General, 694 F.3d 259 (3rd Cir. 2012); Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010); Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 n.5 (1994); Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008); Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994). 36 Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 n.5 (1994); Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008).Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994). 37 Adamson, 745 F.2d at 546 (recognizing that a police officer’s bad faith violation of an individual’s Fourth Amendment rights is an egregious violation warranting exclusion of evidence in a civil proceeding). Cf. Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 702-03 (2009) (holding that when a law enforcement officer commits a violation of the Fourth Amendment but acts in good faith, the exclusionary rule is not available in criminal proceedings). In Herring, the police officer arrested a suspect believing the suspect had an outstanding arrest warrant, but in fact, the warrant had been recalled. The officer’s error was found to be an innocent mistake based on another officer’s bookkeeping error, thus, not warranting suppression of evidence). 38 Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 (9th Cir. 1994). 39 Id. 40 Matter of Toro, 17 I&N Dec. 340 (BIA 1980) (suggesting that a stop based on Hispanic appearance alone would constitute an egregious Fourth Amendment violation if the Border Patrol officers acted in bad faith); Matter of Garcia, 17 I&N Dec. 319 (BIA 1980) (excluding statements obtained after agents repeatedly ignored detainee’s request for counsel).

7-22

Tab Position 1

Immigrant Legal Resource Center June 2017

Even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation of Fourth Amendment, in the immigration context, if the stop was based on race or some other grossly improper consideration. 47 For example, in Orhorhaghe v. INS the Ninth Circuit held that investigating someone because of a Nigerian sounding name is an egregious violation of the Fourth Amendment. 48 The court applied the rule from Adamson v. Commissioner of Internal Revenue to conclude that a reasonable officer should have known that the seizure of Orhorhaghe and the unlawful entry into his apartment violated the Constitution. 49 The court reasoned that the other factors used to justify the illegal search and seizure “added nothing to the inferences or lack thereof regarding Orhorhaghe’s immigration status.” 50 Thus, the court affirmed the IJ’s grant of the motion to suppress based on an egregious Fourth Amendment violation. Likewise, in Arguelles-Vasquez v. INS, and Gonzalez-Rivera v. INS the Ninth Circuit held that an illegal seizure based solely on Hispanic appearance is an egregious Fourth Amendment violation

41

See Almeida-Amaral, 461 F.2d 231 (2nd Cir. 2006). See also Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010). 42 Almeida-Amaral, 461 F.2d at 237. 43 Id. at 236. 44 Id. 45 Id. at 237. 46 Id. at 237. See also Kandamar v. Gonzales, 464 F.3d 65, at 71-72 (1st Cir. 2006) (noting that petitioner failed to proffer evidence of egregious government misconduct by threats, coercion or physical abuse). 47 See U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975) (holding that roving patrol stops cannot be based solely on ancestry). The Brignoni-Ponce standard applies to roving patrol agents which authorizes the agent to stop vehicles “only if they are aware of specific articulable facts, together with rational inferences from these facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” 48 Orhorhaghe, 38 F.3d at 493. 49 Id.; Adamson v. Commissioner of Internal Revenue, 745 F.2d 541 (9th Cir. 1984). 50 Id. at 503.

7-23

Chapter 7

Where an individual is subjected to a seizure for no reason at all, that by itself may constitute an egregious violation of the Fourth Amendment, but only if the seizure is sufficiently severe. 41 In Almeida-Amaral, the Second Circuit held that although a seizure was not based on reasonable suspicion, there was no egregious violation of the Fourth Amendment because it was not “sufficiently severe.” 42 The Second Circuit reasoned that the egregiousness “cannot be gauged solely on the basis of the validity (or invalidity) of the stop, but must also be based on the characteristics and severity of the offending conduct.” 43 The court stated that exclusion under Lopez-Mendoza is only appropriate where the seizure is “gross or unreasonable” in addition to being “without a plausible legal ground,” such as the show or use of force. 44 In Almeida-Amaral, the only basis for finding a seizure was that the officer yelled stop, which was not sufficiently severe to warrant suppression. 45 However, the court implied that the violation would have been egregious if the stop was based on race. But unlike Gonzalez-Rivera, Almeida-Amaral was unable to allege supporting facts beyond “his own intuition to show that race played a part in the arresting agent’s decision.” 46

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

requiring suppression of evidence. 51 In contrast, in Matter of Toro, the BIA upheld the denial of a motion to suppress, finding that before Brignoni-Ponce, the immigration agents’ stop based on “her obvious Latin appearance” was not in bad faith. The Board held that the respondent’s admissions subsequent to this arrest were not fundamentally unfair. 52 However, the BIA held that evidence would be excluded if the use of the evidence would be “‘fundamentally unfair’ and in violation of due process requirements of the Fifth Amendment.” 53 The BIA also recognized that the manner of seizing evidence could be so egregious that it would offend the Fifth Amendment’s due process requirement of fundamental fairness. 54 But since the Supreme Court had not yet decided Brignoni-Ponce and the agents were following then-existing INS policy, the BIA concluded that the stop was not egregious. 55 Thus, the holding in Brignoni-Ponce is pivotal in creating a basis for exclusion that encompasses more than due process violations. There is more case law defining what an egregious violation is not. For example, the Fourth Circuit found in Yanez-Marquez v. Lynch that execution of a warrant during the nighttime, outside the stated time limitations on the warrant, was a Fourth Amendment violation but was not sufficiently egregious to warrant suppression. 56 The court found ICE agents’ use of guns drawn and pointed at the residents “unquestionably was measured and by no means excessive (in the constitutional sense or otherwise).” 57 In Navarro-Chalan v. Ashcroft, the Ninth Circuit held that there was no egregious violation where the immigrant disclosed his name and identity before the arrest. 58 Thus, where the immigrant provides information voluntarily before she is arrested, the courts will not suppress the information provided. 59 The Ninth Circuit has also consistently held that existing evidence of identity cannot be suppressed even if there is an egregious violation. 60 In Hoonsilapa v. INS, the Ninth Circuit declined to extend the exclusionary rule in a removal proceeding where an illegal arrest led to

51

Arguelles-Vasquez v. INS, 786 F.2d 1433, 1436 (9th Cir. 1986) (vacated by Arguelles-Vasquez v. INS, 844 F.2d 700 (9th Cir. 1988)); Gonzalez-Rivera v. INS, 22 F.3d 1441. 52 Matter of Toro, 17 I&N Dec. 340 (BIA 1980). 53 Id. 54 Id. 55 Id. 56 Yanez-Marquez v. Lynch, 789 F.3d 484, 472 (4th Cir. 2015). 57 Id. 58 Navarro-Chalan v. Ashcroft, 359 F.3d 19 (9th Cir. 2004). 59 In a similar vein, in an unpublished decision Olmedo-Monroy v. INS the Ninth Circuit held that although the official agent’s conduct fell below the proper standard, it was not egregious misconduct under the Fourth Amendment. Olmedo-Monroy v. INS, 917 F.2d 1307, slip op. 1990 U.S. App. LEXIS 19679 (9th Cir. 1990). The IJ accepted as true that the Border Patrol agents did not stop the petitioner solely because of his Hispanic appearance, but for other reasons. In another unpublished decision, the Ninth Circuit held that it is not an egregious violation of the Fourth Amendment when an immigration agent was given consent to obtain passports from petitioners’ home and then seized documents from a closed suitcase. Apostol v. INS, 936 F.2d 576, slip op. 1991 U.S. App. LEXIS 13648 (9th Cir. 1991). 60 See, e.g., United States v. Del Toro Gudino, 376 F.3d 997 (9th Cir. 2004); United States v. GuzmanBruno, 27 F.3d 420 (9th Cir. 1994); United States v. Garcia-Beltran, 443 F.3d 1126 (9th Cir. 2006) (fingerprints).

7-24

Tab Position 1

Immigrant Legal Resource Center June 2017

discovery of the immigrant’s identity, which resulted in a search of pre-existing INS files. 61 The court reasoned that such a sanction was not appropriate, since the identity evidence was from a visa petition, which was voluntarily submitted. The court concluded that “the mere fact that Fourth Amendment illegality directs attention to a particular suspect does not require exclusion of evidence subsequently unearthed from independent sources.” 62

3. Was the violation widespread? Practitioners should also consider whether the violation is widespread. In Oliva-Ramos, the Third Circuit addressed the possibility of excluding evidence based on “widespread” violations, noting that this exception was “as much of a part of the Lopez-Mendoza discussion as ‘egregious’ violations.” 65 The court remanded the case to allow the Petitioner to present additional evidence. The court noted that such widespread violations might warrant suppression of evidence based on Fourth Amendment violations that were both egregious and widespread. 66 Factors to consider in identifying widespread Fourth Amendment violations include: the existence of a “consistent pattern,” the number of affected individuals, and the frequency or routine nature of the violation. 67 Appendix F includes a sample motion that makes both of these arguments. Evidence about violations by ICE and other law enforcement officers is more available than it once was. Consider materials that have already been released through FOIA and open records requests or in reports and analysis by monitoring groups. ICE policies and directives, legal memoranda, training programs, and statistical data potentially relevant to showing that violations are widespread. 4. Evidence obtained in violation of due process Removal proceedings must conform to “traditional standards of fairness encompassed in due process.” 68 Even if there is no egregious violation of the Fourth Amendment, individuals are

61

Hoonsilapa v. INS, 575 F.2d 735 (9th Cir. 1978). Id. (citing United States v. Cella, 568 F.2d 1266, 1285-1286 (9th Cir. 1977)). 63 Pretzantzin v. Holder, 725 F.2d 161 (2nd Cir. 2013). 64 Pretzantzin v. Holder, 725 F.2d 161 (2nd Cir. 2013). 65 Oliva-Ramos v. AG of the United States, 694 F.3d 259, 279-80 (3rd Cir. 2012). 66 Id. at 281. 67 Oliva-Ramos v. AG of the United States, 694 F.3d 259, 279-82 (3rd Cir. 2012). 68 Cuevas-Ortega v. INS, 588 F.2d 1274, 1277 (9th Cir. 1979). 62

7-25

Chapter 7

However, in Pretzantzin v. Holder, the Second Circuit vacated and remanded a BIA decision finding that ICE agents had obtained independent evidence of alienage. 63 ICE agents had arrested the petitioners in a nighttime, warrantless raid, and had them sign statements in English, which were not read to them. The government subsequently did not rely on this evidence for removal, but claimed that based solely on the petitioners’ names, they obtained independent evidence of alienage by locating the petitioners’ birth certificates. The Second Circuit rejected this argument, expressing doubt that this could be considered ‘independent’ evidence, since the government would not have accessed either of those records without the unlawful home raid.64

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

entitled to procedural due process under the Fifth Amendment in a removal proceeding. 69 Procedural due process prohibits the government from using statements that are made involuntarily to support deportation. 70 When the surrounding circumstances of an interrogation are fundamentally unfair, the statement may be excluded under the Fifth Amendment. 71 But a statement will not be suppressed in a removal proceeding based merely on the failure to warn of the person’s privilege against self-incrimination. 72 The immigrant bears the burden of proof to show that the immigration authorities unlawfully obtained evidence before the government will be required to justify the manner in which the statement was obtained. 73 The Supreme Court held in the seminal case of Miranda v. Arizona that the failure to inform a person of their rights renders any statements made during a custodial interrogation inadmissible in a criminal trial.74 However, the courts have not extended its application to the removal context. 75 Miranda warnings do not have the same significance in removal hearings primarily because the characterization of removal hearings as a civil proceedings. 76 For example, in a removal hearing for an undocumented person, once the fact that the respondent is an immigrant is established, the burden is upon him or her to prove time, place and manner of entry, which if not sustained, results in an automatic presumption of unlawful presence. 77 In addition, the main purpose of the Miranda warnings, “to permit the suspect to make an intelligent decision as to whether to answer the government agent’s questions,” would not be served because of the immigrant’s burden of proof, the potential adverse inference from silence, and the admissibility of statements despite lack of counsel at the preliminary interrogation. 78 Case law supports the authority of an IJ to make an adverse inference against the immigrant where he or she chooses to remain silent after the government has introduced its prima facie

69

Reno v. Flores, 507 U.S. 292, 306 (1993); Navia-Duran v. INS, 568 F. 2d 803, 808 (1st Cir. 1977); Matter of Garcia, 17 I&N Dec. 319 (BIA 1980). 70 Navia-Duran, 568 F.2d at 811. 71 See Matter of Toro, 17 I&N Dec. 340 (BIA 1980). 72 United States v. Alderete-Deras, 743 F.2d 645, 648 (9th Cir. 1984) (holding that IJ’s failure to provide Miranda warnings did not preclude admission of the alien’s statement in deportation proceeding since there was no coercion or improper behavior). 73 Matter of Burgos, 15 I&N Dec. 278 (BIA 1975). 74 Miranda v. Arizona, 384 U.S. 436 (1996). 75 See, e.g., Bustos-Torres v. INS, 898 F.2d 1053, 1056-57 (5th Cir. 1990) (failure to provide Miranda warnings results in exclusion of any admissions by non-citizen in criminal trial but not from the removal proceeding); Strantzalis v. INS, 465 F.2d 1016, 1018 (3rd Cir. 1972). 76 US v. Solano-Godines, 120 F.3d 957, 960 (9th Cir. 1997). 77 Chavez-Raya v. INS, 519 F.2d 397, 401 (7th Cir. 1975). 78 Id. at 402; see also Lavoie v. INS, 418 F.2d 732, 734 (9th Cir. 1969); Nason v. INS, 370 F.2d 865, 867-68 (2nd Cir. 1967); Ah Chiu Pang v. INS, 368 F.2d 637, 639 (3rd Cir. 1966).

7-26

Tab Position 1

Immigrant Legal Resource Center June 2017

case. 79 But silence is not sufficient to establish alienage. Until the government presents evidence of alienage, such silence alone is not sufficient to establish removability. 80

If the circumstances viewed in the aggregate reflect an atmosphere of coercion and intimidation, the evidence or admission is considered to be provided involuntarily and cannot be used against the respondent. 84 Although Miranda warnings are not required in removal proceedings, the government’s failure to provide regulatory warnings can also be a factor in determining the voluntariness of a statement. 85 The courts have found coercion and duress based on evidence that the statement was obtained through physical abuse, hours of interrogation, denial of food or drink, threats or promises, or interference with a person’s attempt to exercise their rights. 86 For example, in Navia-Duran v. INS, the First Circuit held that the petitioner’s signed statement admitting unlawful presence was inadmissible because it was obtained by coercion. 87 There, the INS agents approached Ms. NaviaDuran without a warrant at night, as she entered her apartment, “seeking to intimidate” her. 88 The court found that the agent actively misinformed her about her rights and told her that she had no choice and would have to immediately leave the country in two weeks. 89 The court concluded that she did not admit her alienage voluntarily because she was in fear, alone, and inexperienced in the American justice system. 90 The court echoed the Ninth Circuit by stating that “expulsion

79 United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-54 (1923); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984); Matter of Davila, 15 I&N Dec. 781, 782 (BIA 1976); Matter of Santos, 19 I&N Dec. 105, 109-110 n.2 (BIA 1984). 80 Matter of Guevara, 20 I&N Dec. 238, 244 (1991). 81 Delfin v. INS, 83 F.3d 426 (9th Cir. 1996) (citing Brown v. Illinois, 422 U.S. 590, 604 (1975)). 82 Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). 83 Delfin v. INS, 83 F.3d 426 (9th Cir. 1996) (citing Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979)). 84 Navia-Duran, 568 F.2d at 811; Matter of Garcia, 17 I&N Dec. 319, 321 (BIA 1980). 85 See Navia-Duran, 568 F.2d at 808. 86 See Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); Cf. Navarro-Chalan, 359 F.3d at 23 (holding that adequate evidence existed for the IJ to find that statements were made voluntarily since the respondent saw others being asked to leave by INS after presenting identification). 87 Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977). 88 Id. at 805, 810. 89 Id. at 810. 90 Id. at 810.

7-27

Chapter 7

Statements that are illegally obtained, however, can be suppressed. The “threshold requirement” for purging the taint of an illegally obtained confession is the confession’s voluntariness under the Fifth Amendment. 81 To determine the voluntariness of a statement, courts consider the totality of the circumstances. 82 But the test for voluntariness differs from the criminal context where voluntariness depends on whether the accused received adequate Miranda warnings. In the civil immigration proceedings, an immigrant’s statement made after an illegal search is not involuntary under the Fifth Amendment unless the record evidences that “the alien’s statement was induced by coercion, duress, or improper action” by the immigration officer. 83

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

cannot turn upon utterances cudgeled from the alien by governmental authorities; statements made by the alien and used to achieve his deportation must be voluntarily given.” 91

Chapter 7

5. Regulatory violations Even where the government’s conduct is not egregious, suppression of evidence is still possible under the administrative exclusionary rule where DHS violates regulations promulgated for the noncitizen’s benefit, and the noncitizen suffers prejudice. Matter of Garcia-Flores, 17 I&N Dec. 325, 328 (BIA 1980). See also United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979); United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999), and Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir. 2008). Several statutory provisions and regulations promulgated by Congress and the Department of Homeland Security provide due process rights for immigrants. 92 When DHS fails to adhere to these specific regulations and governing statutes they violate due process, which mandates the termination of proceedings or the suppression of evidence. 93 Federal regulations protect the immigrant’s Fifth Amendment rights by requiring that the person arrested without a warrant be examined by an officer other than the arresting officer.94 The regulations also require that the person be informed of the nature of the charges against them, and be informed that anything he or she says may be used against him or her. 95 This is critical because often a non-citizen will be arrested without a warrant and brought to a DHS office for further questioning before a Notice to Appear (NTA) has been issued. But internal government policies provide that “Every apprehended alien must be a given a notice of rights.” 96 INA § 287 and 8 CFR § 287 describe the power of immigration officers. Under 8 CFR § 287.3(a), a noncitizen arrested without a warrant must be examined by someone other than the arresting officer, unless no other qualified officer is available and the taking of the alien before another qualified officer would cause unnecessary delay. Hernandez-Guadarrama, above, at 674. 97 Under 8 CFR § 287.3(c), once DHS officers arrest someone and put him or her in proceedings under §§ 238 or 240 of the Act, they must do the following: • • • •

advise the person of the reasons for his or her arrest advise the person of his or her right to counsel provide the person with a list of available free legal services, and advise the person that any statements he or she makes may be used against him or her at the hearing.

91 Id. (citing Bong Youn Choy v. Barber, 279 F.2d 642, 646 (9th Cir. 1960)) (holding coerced confession obtained after seven hours of interrogation inadmissible in deportation hearing). 92 8 USC § 1252, 8 CFR §§ 242, 287. 93 United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979) (requiring a showing of prejudice). 94 8 CFR § 287(a). 95 8 CFR § 287(c). 96 See Immigration and Naturalization Service, Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing and Removal 95 (1997). 97 Nevertheless, where the noncitizen’s rights were not prejudiced by examination by the arresting officer, the evidence will not be suppressed. Martinez-Camargo v. INS, 292 F.3d 487 (7th Cir. 2002).

7-28

Tab Position 1

Immigrant Legal Resource Center June 2017

In Matter of Garcia-Flores, the examining officer failed to notify the noncitizen of the reasons for her arrest and that she had a right to be represented by counsel in violation of 8 CFR § 287.3(c). In analyzing the case, the BIA adopted a 2 prong test for determine whether the deportation proceedings against her should be invalidated:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. the regulation must serve a purpose of benefit to the alien, and 2. the proceeding will be found unlawful only if the violation prejudiced the alien’s interests. 98

Even though the BIA did not automatically find prejudice in Garcia-Flores, it noted that “where compliance with the regulation is mandated by the Constitution, prejudice may be presumed,” and that “where an entire procedural framework, designed to insure the fair processing of an action affecting an individual is created but then not followed by an agency, it can be deemed prejudicial.” This is important language to use when challenging the legality of a client’s arrest and the admission of any statements made as a result of that arrest. 99 The Supreme Court has held that where a violation of an administrative regulation does not adversely affect substantive rights provided for by the Constitution or statute, an exclusionary remedy is not available. 100 But the Court has invalidated deportation proceedings where the agency violated regulations that provided substantive rights to immigrants. For example, in Bridges v. Wixon, the Court invalidated a deportation order that was based on statements that did not comply with administrative rules requiring signatures and oaths, finding that the rules were designed to provide due process and provide safeguards against unfair procedures.101 Thus, regardless of whether warnings are provided, the courts may grant a motion to suppress where the official conduct violated fundamental fairness or the circumstances surrounding the interrogation rendered the statements involuntary. 102 The administrative exclusionary rule is often the final basis alleged to support the motion to suppress.

98

This test was adapted from United States v. Calderon-Medina, above, at 532. See also Leslie v. Attorney General of the U.S., 611 F.3d 171 (3rd Cir. 2020) [finding a due process violation where an immigration judge failed to notify the noncitizen of free legal services available, as required, and holding that the noncitizen was not required to show prejudice]. 100 United States v. Caceres, 440 U.S. 741 (1979). 101 Bridges v. Wixon, 326 U.S. 135, 152-153 (1945). 102 See Matter of Garcia-Flores, 17 I&N Dec. 325, 327-29 (BIA 1980); Cunanan v. INS, 856 F.2d 1373, 1374-75 (9th Cir. 19878). 99

7-29

Chapter 7

The BIA found that 8 CFR § 287.3(c) was intended to benefit the alien, and remanded the case to the immigration court for a finding on prejudice. Garcia-Flores, above. “Prejudice” in this context, does not mean that someone has to prove they would have won their case but for the violation of the regulation; it only requires a showing that the violation could potentially have affected the outcome of the proceedings. Garcia-Flores, see also United States v. CalderonMedina, above.

Chapter 7

The BIA explained in Matter of Garcia-Flores that “even where regulations are not founded on a constitutional or statutory requirement, an agency still has a duty to obey them.” 103 In order to determine whether proceedings should be invalidated or evidence suppressed due to regulatory violations, the BIA adopted a two prong test. First, the regulation must “serve a purpose of benefit to the alien.” 104 Second, the regulatory violation will render the proceeding unlawful “only if the violation prejudiced interests of the alien which were protected by the regulation.” 105 Prejudice will be presumed where compliance with a regulation is mandated by the Constitution. 106 In that case, the examining officer failed to notify the noncitizen of the reasons for her arrest and that she had a right to be represented by counsel in violation of 8 CFR § 287.3(c). The BIA found that 8 CFR § 287.3(c) was intended to benefit the alien, and remanded the case to the immigration court for a finding on prejudice. “Prejudice” in this context, does not mean that someone has to prove they would have won their case but for the violation of the regulation; it only requires a showing that the violation could potentially have affected the outcome of the proceedings. 107 In Matter of Garcia, INS officers failed to advise the respondent of his right under the regulations to consult a lawyer during a lengthy and intimidating custodial interrogation. 108 The respondent argued that this regulatory violation rendered his statements involuntary, and that use of the statements violated due process. 109 Based on this argument, the BIA excluded the admissions and terminated deportation proceedings. 110 Most circuits have followed the BIA in recognizing that not every violation of an agency rule mandates the exclusion of evidence from proceedings. Although the BIA has reasoned that prejudice may be presumed where compliance with a regulation is mandated by the Constitution, a violation of the examination and notifications in § 287.3 is not presumed to be prejudicial among several circuits. 111 As the BIA noted, as a general rule, prejudice will have to be specifically demonstrated. 112

103

Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980) (citing United States v. Caceres, 440 U.S. at 1471, n.14). 104 Matter of Garcia-Flores, 17 I&N Dec. at 329 (citing United States v. Calderon-Medina, 591 F2d 529, 532 (9th Cir. 1979). 105 Id. (citing Caceres). 106 Id. 107 Matter of Garcia-Flores, 17 I&N Dec. at 329 (citing United States v. Calderon-Medina, 591 F2d 529, 532 (9th Cir. 1979). 108 Matter of Garcia, 17 I&N Dec. 319 (BIA 1980). 109 Id. at 321. 110 Id. 111 See Martinez Camargo v. INS, 282 F.3d 487 (7th Cir. 2002); Montero v. INS, 124 F.3d 381, 386 (2nd Cir. 1997); Delgado-Corea v. INS, 804 F.2d 261, 262-63 (4th Cir. 1986); Garcia Flores, 17 I&N Dec. at 329. 112 Matter of Garcia-Flores, 17 I&N Dec. at 329.

7-30

Tab Position 1

Immigrant Legal Resource Center June 2017

However, in the Ninth Circuit, the standard for showing prejudice is that the regulatory violation may have affected the outcome, as opposed to it would have affected the outcome. 113 The Ninth Circuit has held that the respondent must “produce some concrete evidence indicating that the violation of a procedural protection actually had the potential for affecting the outcome of his or her proceeding.” 114 Thus, there can be no finding of prejudice where the evidence supporting removability arose prior to the regulatory violation. 115 Once a prima facie case for prejudice is met, the burden shifts to the government to show that the violation could not have changed the final outcome of the removal proceeding. 116

C.

How to Conduct a Suppression Hearing

If you think that your client’s arrest was illegal, or that the government’s evidence is otherwise tainted, either because of reliance on an absent witness that the government has made no effort to produce, or for other reasons (see cases cited above), you can file a motion to suppress the illegally obtained evidence. Remember that if you are alleging that there was an egregious Fourth Amendment violation, you must show not only that the evidence was obtained illegally, but also that your client was prejudiced by the illegality, so that admission of the evidence would violate due process. 1. First step: Deny allegations in the NTA If you are going to move to suppress the evidence the first step is that you must deny the allegations in the Notice to Appear at the master calendar hearing. The attorney must exercise care in avoiding any admission of facts sought to be suppressed when pleading to the NTA or during a motion to change venue. 119 The IJ may get angry, but this is the best practical route. To do otherwise would set the immigrant up for defeat since admitting alienage shifts the burden of proof to the immigrant if the individual entered the United States without inspection. If alienage is denied, the Government will next seek to introduce evidence to establish alienage by the foreign passport and/or an I-213. Since the I-213 is a document produced in the regular course of business of an immigration officer, it falls under the hearsay exception based on business records. It often contains statements by your client as reported by an officer, making the comments of your client double hearsay. A 113

United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986). Cerda-Pena, 799 F.2d at 1379. 115 Garcia-Flores, 17 I&N Dec. at 329. 116 Cerda-Pena, 799 F.2d at 1379. 117 See 8 CFR § 242.2(e). 118 Tejada-Mata v. INS, 626 F.2d 1971 (9th Cir. 1980); United States v. Rangel-Gonzales, 617 F.2d 529 (9th Cir. 1980); but see U.S. v. Villa-Fabela, 882 F.2d 434 (9th Cir. 1989). 119 Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986) (IJ correctly denied motion to suppress because counsel conceded all factual allegations and deportability in motion to change venue). 114

7-31

Chapter 7

The regulations also provide that the immigration officer must advise immigrants of their right to consult with their foreign consular official prior to a hearing. 117 The Ninth Circuit has invalidated deportation orders where the immigration officials failed to inform the immigrant of this right prior to the hearing. 118

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

proper chain of custody for the I-213 must be established or an objection may be raised for lack of foundation. The I-213 is significant because in a case where alienage is denied by the immigrant, the government bears the burden of proof. In most cases, the government will seek to prove alienage by filing the I-213 into evidence. However, at this point the attorney should object and seek time to file a written motion to suppress the evidence and terminate proceedings. The motion to suppress the evidence in the I-213 must be based on arguments to illustrate that the evidence in the I-213 was not legally obtained. The grounds under which to suppress the illegally obtained information contained in the I-213 can range from facts showing an internally incoherent document to an inherently unreliable document because of a coercive situation, an illegal arrest or a language barrier. In a few cases, there may also be a separate affidavit prepared by an immigration officer in a question and answer form, which the client has signed. These documents may have been improperly executed (e.g., without having been read back to the client or without proper translation) and therefore, may be subject to suppression on grounds raised in the motion to suppress. The attorney must object before such items are entered into evidence and seek time to file a motion to suppress the evidence and hold an evidentiary hearing. 2. Second step: File a written motion to suppress and supporting affidavit Second, you must file a written motion to suppress, supported by a detailed declaration or affidavit from your client describing the circumstances of the arrest. 120 If your client is alleging an illegal arrest, his or her statements must be specific rather than conclusory or based on conjecture. Matter of Wong, 13 I&N Dec. 820 (BIA 1971). The motion to suppress should be in written form accompanied by a memorandum of points and authorities (a brief), affidavit from the client and affidavits from witnesses if appropriate. The memorandum should specifically enumerate each article of evidence sought to be suppressed. Generally the evidence will consist of the following: Form I-213 investigator’s report (Record of Deportable Alien), birth certificate, passport, statements made by the client and other evidence of alienage and deportability. The memorandum should also state every reason supporting the exclusion of the evidence. The most common legal bases for exclusion include the following: violations by immigration authorities of its own regulations and statutory authority; “egregious violations” of the Fourth Amendment; violations of the due process clause of the Fifth Amendment; and assertions that the evidence was obtained involuntarily as a result of coercion, duress or inducement. 121 In evaluating the totality of the circumstances, emphasis should be placed upon the link between the Fourth Amendment violation (i.e., lack of reasonable suspicion or probable cause) and the 120

See Appendix A, sample motions to suppress. Although a mere technical violation of the Fourth Amendment does not warrant application of the exclusionary rule, the BIA and courts of appeal have supported suppression where the manner of the acquisition of the evidence was so egregious as to offend Fifth Amendment fundamental fairness requirements. Matter of Toro, 17 I&N Dec. 340 (BIA 1980); Gonzales-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) (stop based on race alone constitutes an egregious violation); Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994) (suppression of documents seized during warrantless nonconsensual search of respondent’s apartment based on foreign sounding name; search and seizure was held to be an egregious violation of the Fourth Amendment). Please see Chapter 2 for a more complete explanation of the law on this issue. 121

7-32

Tab Position 1

Immigrant Legal Resource Center June 2017

overall coercive nature of the stop, search, seizure, interrogation and detention. 122 If the facts of the case do not rise to the level of an egregious violation of the Fourth Amendment then the need to develop facts regarding a violation of the Fifth Amendment becomes higher. This manual includes several examples of motions to suppress.

The affidavit should contain specific and detailed statements mirroring the alleged violations contained in the memorandum. These statements must be based on personal knowledge, not conjecture or allegations created by counsel. 123 The goal is to allege facts that, if accepted as true, would form the basis for excluding the evidence. 124 This is critical because the information authenticated on the Form I-213 is presumed reliable unless there is evidence of a lack of trustworthiness or coercion. 125 In addition, the IJ is not required to allow cross-examination of the officer who prepared the Form I-213 where the facts are uncontested. 126 WARNING! The client’s affidavit should not include any information that would amount to an admission of alienage, if evidence of alienage is what you are attempting to suppress. Be careful of biographical statements about your client that might imply alienage. Here are some examples: “I have lived in this country for 15 years;” Two of my four children are U.S. citizens”; “My brother was deported to Guatemala”; “I am unable to get a driver’s license because I do not meet the identification and legal residency requirements.” You must instruct your client to assert his Fifth Amendment right against self-incrimination at the hearing. This can be a very intimidating process, and the client must be well-prepared to resist answering questions from the immigration judge or ICE attorney about his or her place of birth at the hearing. Any admissions will be used against your client, including statements made in visa petitions and other affirmative applications to USCIS. 127 PRACTICE TIP: Your client must personally assert his Fifth Amendment right against selfincrimination at the hearing, and must resist the impulse to disclose alienage. He or she should disclose only his or her name 122

See Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977). Matter of Wong, 13 I&N Dec. 820 (BIA 1971). 124 Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). 125 Espinoza v. INS, 45 F.3d 308 (9th Cir. 1995). 126 Id. at 311. 127 However, statements made in applications for relief from removal (i.e., defensive applications) cannot be considered a concession of alienage or deportability in any case where someone does not admit alienage or deportability, except for asylum applications filed on or after January 4, 1995. 8 CFR § 1240.11(e). 123

7-33

Chapter 7

PRACTICE TIP: Unsworn statements of counsel in immigration court pleadings are not evidence for the purpose of immigration court proceedings. Thus, if counsel is making a factual representation that is essential to the prima facie case, e.g., “Respondent did not feel free to leave,” even if that is technically a legal conclusion under relevant case law, it helps to have the respondent attest to these facts in her affidavit. In other words, the client’s affidavit must cover all the relevant points that the attorney intends to argue.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 7

Related Motions. Generally, the motion to suppress is properly captioned “Motion to Suppress Evidence and Terminate Removal Proceedings.” In reality you are asking for both things: 1) for the judge to suppress any evidence of alienage, and 2) because the government cannot meet their burden of proof without the evidence, you are moving the court to terminate the proceedings. In some cases, it may also be necessary to include a motion for subpoena of documents and subpoena of witnesses, such as the ICE officers and other key witnesses. It is often a good idea to consider filing a motion in limine, which is not commonly used in immigration court. In limine means “at the start” and can be used to ask the judge to rule that certain evidence or testimony be excluded or off limits. This is helpful to file with a motion to suppress before the evidentiary hearing as a way to make clear that the government should not be allowed to ask questions about alienage during the motion to suppress evidentiary hearing. In your motion, you can move the court to restrict testimony during that hearing to issues related to the motion to suppress. 128 3. Step three: Hearing on the motion to suppress The actual evidentiary hearing (merits hearing) consists of witness testimony on direct and crossexamination upon which the IJ determines the admissibility of the I-213 or other such evidence at issue in the motion to suppress. This hearing is distinct from any final hearing merits hearing a person might have on relief from removal. (If there is any question that this is a separate hearing before the client seeks relief from removal, you should argue that the hearing on the motion to suppress must be first, because it is on the threshold issue of removability.) The availability, timing, scope, and availability of evidentiary hearings on motions to suppress depend largely on the presiding immigration judge. Some judges refuse to conduct an evidentiary hearing until rendering a preliminary, written finding that the Respondent’s motion to suppress satisfies her prima facie burden of demonstrating constitutional violations that, if proven, would warrant suppressing the evidence DHS introduced. This practice limits the initial factual record to only the Respondent’s affidavit and any other exhibits she submits in support of the motion. On the other hand, many immigration judges reserve a decision on whether the Respondent has carried her prima facie burden until after an initial evidentiary hearing in which only the Respondent testifies. Under this practice, the IJ issues a decision based on the affidavits and testimony submitted by Respondent, then schedules a second evidentiary hearing where DHS must bear its burden of proving the evidence was obtained lawfully. Finally, other immigration courts immediately schedule evidentiary hearings upon the Respondent’s announcement at the initial master calendar hearing that she will deny the allegations in the NTA and file a Motion to suppress evidence and terminate proceedings. Accordingly, it is highly advisable to consult with other practitioners or the court clerk in the particular immigration court where the removal proceeding is pending to determine the typical procedure for adjudicating motions to suppress.” The government often presents two to three ICE agents clad in uniform and will attack the immigrant’s character for truthfulness. To rebut the client’s affidavit or testimony, the government must call the officer who processed the client. However, if the circumstances 128

For examples of motions in limine on this issue, visit www.law.umaryland.edu/programs/clinic/initiative s/immigration/resources.html (last visited November 2015). Maureen Sweeney and her clinical students have created a resource page on motions to suppress for practitioners.

7-34

Tab Position 1

Immigrant Legal Resource Center June 2017

surrounding the arrest render evidence inadmissible as an egregious violation of the Fourth Amendment or as a violation of the Fifth Amendment’s due process clause, the government may also have to call the arresting officer. Where the government fails to rebut the client’s allegations of unlawfully obtained evidence, the motion to suppress must be granted. 129

PRACTICE TIP: The finding of “egregiousness” must be done on a case-by-case basis, and courts have held that no single fact elevates a constitutional violation to an “egregious” one. 130 Therefore, it is important to allege as many facts as possible that point toward egregiousness. Some of the factors considered include: physical threat or harm, whether the violation was intentional, the location of the intrusion (with greater protections at home), and whether there was any plausible legal ground for the seizure. 131 The facts alleged in the client’s affidavit must be corroborated by the respondent’s testimony during the evidentiary hearing. 132 However, the client’s testimony is presented for the limited purpose of providing the factual support for the exclusion of evidence. Thus, the attorney must object where the IJ or the government attorney attempts to exceed the scope of direct examination by questioning the client about alienage. 133 As indicated above, it may be advisable to file a motion in limine in advance of any testimony by the Respondent seeking (a) to bar limit any questioning of the Respondent regarding his or her alienage or immigration-related information; and, in the alternative, (b) permitting the attorney to assert the Fifth Amendment on the respondent’s behalf. It is also important for the attorney to question the immigration agents thoroughly. It is helpful to ask whether they can speak the immigrant’s language. During cross-examination, sometimes the agent will concede that he does not speak Spanish or respondent’s best language. Such an admission enables the attorney to establish that the officer cannot perform his job duties and that the immigrant was not informed of his rights as required under the law. PRACTICE TIP: Barcenas requires a sworn statement from your client, which, if true, forms the factual basis of a suppression motion. Make sure your client’s declaration or affidavit preserves 129

Matter of Garcia, 17 I&N Dec. 319 (BIA 1980). Cotzojay v. Holder, 725 F.3d 172, 182–83 (2nd Cir. 2013), citing Oliva-Ramos v. Attorney General of U.S., 694 F.3d 259, 278–79 (3rd Cir. 2012). 131 Id. 132 Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988). 133 Cf. Fed. R. Evid. 611(b). 130

7-35

Chapter 7

The role of the IJ is to determine whether there is an egregious violation of the Fourth Amendment or other conscious disregard for the law. If the IJ decides that the I-213 is admissible then alienage admitted in the I-213 is easily proven. However, if the motion to suppress is granted, then the government will attempt to introduce other evidence they might have to establish alienage, such as the passport. Thus, the diligent attorney will move to suppress both the I-213 as well as any other evidence that the government might have as a result of the search or seizure. If the government brings out the evidence piecemeal, an attorney will have to move to suppress each new piece of evidence.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

facts—not legal arguments—supporting each of the bases on which you intend to move for suppression. Moreover, try to ensure that the client’s sworn statement is not overly lengthy, as ICE may use any discrepancies or inconsistencies against the client on cross-examination should the Court order an evidentiary hearing pursuant to Barcenas.

Chapter 7

§ 7.9

After the Master Calendar Hearing

After the master calendar hearing, you might be scheduled for a subsequent master calendar hearing, an individual hearing to present the merits of a relief application, or a hearing on contested removal. In some cases, the judge might order briefing on a specific legal issue. It is important to make sure you calendar all the next steps to properly track the case. Equally important, you must make sure you’ve communicated next steps to your client so that they can be involved in their immigration case and help prepare. A.

Communications with Your Client

The most important item following the master calendar hearing is clear communication with your client about what transpired in court. The court proceedings are very quick and often quite confusing to your client. The judge and counsel have a tendency to speak among themselves during the master calendar without explanation to the client. After the hearing, break down what transpired for your client. Explain any next steps ordered by the judge, such as deadlines and next hearing dates. Additionally, make sure your client has a clear understanding of what you will need from the client to meet the court’s deadlines. Give Advisals. The judge will charge the representative with providing appropriate advisals to your client about maintaining a current address with the court and consequences of failure to appear. Make sure you advise your client accordingly. Most attorneys have a standard letter with relevant warnings and reminding the client of the next court date, along with a copy of the notice for the next hearing. B.

Case Management

After a master calendar hearing, you will generally have new deadlines for applications or arguments and a new hearing date. It is important to have office procedures in place to calendar all upcoming deadlines, schedule necessary meetings with your client and send notices and advisals to your client in writing. Additionally, if your client is seeking relief, the judge usually sets a deadline for submitting the application. Most applications require compliance with biometrics. ICE must provide you with the biometrics instructions for filing an application. Most applications are filed with a service center of USCIS with the appropriate fee. After receiving proof of filing, the application and proof of filing and complying with biometrics procedures must be filed with the immigration court. All this must take place before the deadline set by the court. This means that you must prepare the application with your client well in advance of the deadline.

7-36

Tab Position 1

Immigrant Legal Resource Center June 2017

CHAPTER 8 TRIAL PRACTICE AND MOTIONS: THE INDIVIDUAL HEARING AND TRIAL PRACTICE

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9

Introduction ........................................................................................................ 8-1 Strategy............................................................................................................... 8-2 Document Submission........................................................................................ 8-7 Rules and Procedures ......................................................................................... 8-8 Preserving the Record ........................................................................................ 8-9 Testimony ......................................................................................................... 8-10 Opening and Closing Statements ..................................................................... 8-14 Judge’s Decision .............................................................................................. 8-14 Filing Motions .................................................................................................. 8-15

§ 8.1

Introduction

Some cases will not proceed to a merits hearing. If you were successful on a motion to suppress evidence and had the case terminated at or before the master calendar hearing, the case will not proceed to a trial on the merits. Additionally, if your client requested pre-conclusion voluntary departure at a master calendar hearing, the case will resolve before an individual hearing. See Chapter 9. If your client has no options for relief and does not file any applications for relief from removal, the IJ will order your client removed without scheduling a merits hearing. Additionally, a case on remand might be finalized at a master calendar hearing or with written submissions; an individual might be ordered removed in absentia if she fails to appear at her hearing; or your client might successfully gain status outside the courtroom, which allows the judge to terminate or administratively close proceedings. In cases where the court grants prosecutorial discretion, or your client gets deferred action, such as through Deferred Action for Childhood Arrivals (DACA), the judge will most likely administratively close the case. See Chapter 9 for more information. In most cases in which you are presenting an application for relief from removal, your client will proceed to a full hearing on the merits of their case. This chapter will discuss preparing your case for trial and helpful procedural tips for navigating this stage of immigration court.

8-1

Chapter 8

At your final master calendar hearing, the immigration judge will set a date to hear testimony and decide any case for relief you have requested on behalf of your client. The “individual” or “merits” hearing refers to this longer hearing in which you will present your client’s case, offering evidence and witnesses in support of any claim. This is like the “trial” in criminal court. Some cases may take several individual hearings to resolve.

§ 8.2 A.

Strategy

Developing a Theme for Your Case

Preparing your case for presentation at the merits or individual hearing is a gradual process that occurs as soon as you take the case. As you develop your facts and identify the form(s) of relief that you are seeking, you should begin to strategize how to present this information to the factfinder and adjudicator: the immigration judge. Here, developing your facts and having a strong sense of the strengths and weaknesses in your case is crucial. One effective way to do this is to develop a theme for your case. A theme will allow you to present your client and the facts in your case in a more organized and consistent form. The theme in your case will be contingent upon the type of relief you are requesting and the facts in your case. A theme should be brief and accessible while also speaking to the major issues of your case. You can reinforce your theme as you present documentary and testimonial evidence in your case. You should also refer to your theme in your closing.

Chapter 8

Example: Your client, Sally, is in removal proceedings but qualifies for LPR Cancellation under INA § 240A(a). Sally has a long history of theft and substance abuse convictions, all of which you discover, after much investigation, relate back to her substance abuse problem. Sally’s family is extremely supportive and vows to support her in the rehabilitation program that you’ve lined up for Sally with the assistance of her family. The theme of your case is that sally is a woman who has made mistakes as a result of her substance abuse but, with the support of her family, is now on the path to recovery. Teasing this out, Sally is very family-oriented but has a history of substance abuse which has led to mistakes. In particular, the theft was to support her substance abuse habit. However, Sally acknowledges her addiction and past mistakes, takes responsibility for them, and is now on the path to meaningful rehabilitation with the extensive support of her family. In some cases, asking for forgiveness, like cancellation or a waiver, the theme might center around rehabilitation as in the above example. In cases based on hardship, the theme might be about how a family member will suffer should your client be deported. In asylum cases, your theme will likely focus heavily on the feared persecution and draw out that the feared harm is on account of a reason that is accepted by our asylum laws. These common forms of relief are discussed in Chapters 10 through 12. B.

Not “Hiding the Ball”: Disclosing and Mitigating Bad Facts

A constant theme that comes up with immigration judges and the trial attorney (prosecutor) is “not hiding the ball,” or rather, not hiding bad facts. While this often is thought about at the time of preparing your client to testify, it is best to think about this upfront as part of your case strategy or theme. This is because you will have to decide which bad facts will be disclosed in declarations and document submissions, and these facts might also directly impact your theme or how you present your client’s story. Which facts to disclose upfront can be somewhat of a judgment call, since you do not want to flag your client’s bad facts unnecessarily. However, in many instances, such as with criminal history, bad facts will inevitably come out in which case it is best to be the first to discuss and frame those facts. Further, certain bad facts may actually help your case. Like Sally in our example, if your client has an extensive criminal history but you have

8-2

Tab Position 1

Immigrant Legal Resource Center June 2017

identified that many of the crimes can be traced back to your client’s substance abuse problem (which often inevitably comes out), this provides a narrative as to why your client committed those crimes and why. Thus, with substance abuse rehabilitation, your client will stop reoffending in the future.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The first step in disclosing bad facts is realizing that they exist. Here, extensive investigation is crucial. Common red flags include the possibility of arrests or contact with law enforcement, known serious charges (even if dismissed), substance abuse problems, and mental health issues. Although there is no formal discovery in immigration proceedings, make sure to gather information and records to the degree that you are able, as detailed in Chapter 2 of this manual. Further, engage in your own individual investigation. Extensively question your client and their family and/or friends regarding these issues. Keep in mind that immigration practice often requires the practitioner to know detailed facts about our clients’ lives, developing trust is essential to building a defense for your client. PRACTICE TIP: Clients will often not volunteer bad facts owing to a series of factors including shame. Coax bad facts out of your client by reassuring your client that you are not judging them and that all people make mistakes. It is critical that your client feels safe and trusts you. Also, communicate that it is important to have all of the bad information earlier rather than later, because then you can help them in presenting this information in a more positive light rather than the government presenting the same information in a more harmful fashion.

Once you realize that bad facts exist, consider how and when you present them. The initial framing and presentation of bad facts will affect how the judge considers those facts moving forward. For example, if there is an unknown child endangerment conviction, opposing counsel may raise this, framing it as proof that your client is a bad parent and is dishonest, having had no intention of disclosing the conviction. If you raise the issue first, your client will come off as trying to be transparent and forthright with the court, and you will be able to mitigate the conviction by framing it in a more sympathetic light. For example, you might explain that your client received the conviction because she is a single mother and had to leave her toddler in the car while she changed her child’s diaper in a restroom. The take-away points here are that transparency with the court matters and you always want to have the first opportunity to frame a bad fact. Mitigating bad facts will vary case by case, but counsel should get to know their client’s story as intimately as possible. With substance abuse, mitigate by explaining that substance abuse is a medical condition that involves addiction. Submitting reports and background documents about the medical nature of addiction may help build out a sympathetic theme to your case. Ensure that your client acknowledges that they have a problem, takes responsibility for it, and has committed to, and can explain, their plan for rehabilitation. A strong rehabilitation plan is crucial. For criminal convictions, ensure that you have facts regarding what was alleged (e.g., in the police

8-3

Chapter 8

Finally, even if your client does not disclose bad facts, do not assume that they do not exist. Clients are sometimes in denial or forget about certain facts or incidents. For example, clients may not realize that they have mental health issues (even after being in a mental health hospital) or may have memory loss regarding pass criminal convictions due to years of substance abuse. In some cases, clients are not aware of information provided to immigration on prior forms.

Chapter 8

report and complaint), and what your client claims actually happened. It is crucial that your client take responsibility for any criminal convictions and acknowledges that they were wrong. Explaining the circumstances that led to an offense and why the client will not re-offended in the future is also helpful. Consider, what can you show the judge to prove that this will not happen again; what is different now? For mental health issues, a rehabilitation or treatment plan is important, particularly if mental health issues resulted in violence. For all of the aforementioned issues, support and accountability through friends and family is incredibly important. Whether your client is trying to conquer mental health issues, substance abuse, or factors that make them more amenable to crimes, having a strong family/friend support system is crucial to success and most judges and trial attorneys will focus on this. Criminal issues are not the only bad facts. For those that have filed applications with immigration in the past, vetting for possible fraud or misrepresentation is critical to avoiding surprises in court. Knowing your client’s immigration history well will be important to vetting relief eligibility and also to make sure the judge sees your client as a reliable, credible witness. Good preparation before testimony so that your client can testify knowingly about any prior contact and applications with immigration is essential. As mentioned in Chapter 2, requesting documents through the FOIA process is a critical step for those with prior applications. It is appropriate to ask for continuances while awaiting a response, especially in cases where the government alleges fraud in a prior application. Certain misrepresentations may also bar eligibility for relief. For instance, marriage fraud bars immigrating through a new petition. See INA § 204 (c). Additionally, filing a “frivolous’ asylum application renders the applicant ineligible for any benefits under the INA. See INA § 208(d)(6). 1 Thus determining the extent of such bad facts and any defenses is part of initial strategy for any case. PRACTICE TIP: What if your client says that they do not want to take responsibility for a criminal conviction because they did not do it? Unfortunately, people plead guilty for a variety of reasons, including to avoid a potential lengthy sentence or to get out of jail faster. However, immigration court is not the place to re-litigate the conviction. Denying responsibility for a criminal conviction despite having pled guilty may affect your client’s credibility. Explain this to your client while empathizing with the unfairness of the system as a whole. If your client cannot in good faith take responsibility for a criminal conviction, work with them to see what they can take responsibility for. For example, putting themselves in a bad situation by hanging out with the wrong people. C.

Present Arguments and Evidence Strategically

As you plan your case strategy, think about the strongest elements of your case. Court practice varies substantially courtroom by courtroom, by location, and by type of hearing—be it video teleconferencing, a case that has been pending a long time, etc. It is always good practice to learn about your judge and how they manage their docket. Some judges will require you to present your case in short timeframes. Others notoriously double book every hearing slot. In any event, it is good to know what your strongest arguments are, who your strongest and most critical witnesses are, and make sure you get them in first.

1

Asylum is discussed in Chapter 12.

8-4

Tab Position 1

Immigrant Legal Resource Center June 2017

If you have several persuasive points related to your client, place your focus on your strongest points. For example, if you have several witnesses who can provide testimony on your client’s good moral character, focus on those who have the closest relationship with your client and who have known your client the longest. That said, certain issues need to be raised before an immigration judge in order to preserve the issue for appeal. In hotly contested cases, it is reasonable to push to make your full record, including presentation of all arguments and witnesses. If the judge denies your request, make sure the denial is part of the record, meaning that it makes it on to the recording of the hearing. While some judges get upset when attorneys go out of their way to make a record, you may politely remind them that it is your duty to zealously and effectively represent your client and part of your duty as an officer of the court.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Nonetheless, be mindful of presenting witnesses that might not help your case. While a certain witness, like a close family member, might appear to hold critical information, if they will contradict your client or undermine your client’s case, it might be strategically better to not call the witness. You have the right not to call witnesses, even if requested by the court.

D.

Communication with Opposing Counsel

Your case will be assigned an attorney from the Office of Chief Counsel for Immigration and Customs Enforcement, which is a part of the Department of Homeland Security. Thus, opposing counsel in your case is an attorney from DHS. Opposing counsel might be referred to as “ICE” or “OCC.” Many still use the term Trial Attorney (TA) to identify ICE counsel that represent the U.S. Government in removal proceedings. Nonetheless, the correct title is often Chief Counsel or Assistant Chief Counsel. While a representative of our government should be most concerned with fair adjudication of our laws and principals, the goal of the TA is generally to deport your client. Nonetheless, in certain instances it is beneficial to reach out to opposing counsel prior to a hearing to discuss certain issues or to get a sense of opposing counsel’s concerns. This can be a tactical decision and not all opposing counsel will be receptive. However, it can be helpful. For example, if you have a bond hearing coming up, you can call opposing counsel and ask to stipulate to a bond amount or at least get a sense of opposing counsel’s major concerns to make sure that you can address them at the upcoming hearing. Note, opposing counsel may not have reviewed the file at the time of your call: be prepared to summarize key points you want to address. You may also want to reach out to opposing counsel regarding procedural points. For example, if you want to change a hearing date, ask opposing counsel if they oppose such a change and if not, you can file an unopposed motion which will carry more traction with the court. Indeed, the court practice manual requires that you contact opposing counsel for their position on motions filed with the court. In general, the court will appreciate efforts made to communicate and narrow issues with opposing counsel prior to your appearance.

8-5

Chapter 8

Finally, be creative in the courtroom. For example, feel free to introduce demonstrative exhibits in the courtroom if it will help the in the presentation of your evidence. Review general trial advocacy books for other creative ideas regarding presenting evidence and questioning witnesses. Keep in mind, however, that there is no jury to persuade—just the judge. Check with the Immigration Court Manual and with local practitioners to see how such strategies may be received by your judge.

Reminder: You may still file motions with the court, even where the Office of Chief Counsel opposes your motion. The judge is the final adjudicator and will rule on your motion. Knowing that OCC opposes your motion gives you a chance to bolster any arguments in favor of your motion before presenting it to the judge. Additionally, if OCC files an opposition later, or files a motion that is not favorable to your client, you may respond with your own opposition or response to their opposition. Regardless of whether you reach out to opposing counsel, it is important to remain professional and courteous with opposing counsel for a variety of reasons. Your reputation as a practitioner precedes you, you always want to appear professional in front of the judge, and you never know when your positive professional relationships with opposing counsel can work in your favor. For new practitioners, do not reach out to the immigration judge in the same way, as this could result in ex parte communications.

Chapter 8

E.

Keeping Organized and Other Tips

Because litigating immigration cases often has various moving parts and competing deadlines, it is important to remain organized. Failing to request certain documents in a timely fashion can result in missing issues or deadlines. Missing deadlines with the court, or failing to notify your client of important developments, like a change in hearing date, could result in a removal order against your client. Build in good practices to keep yourself accountable and to make it easier for you to remain organized. Having a good calendar system in place will help insure no important deadlines are missed in a case. Additionally, a system for preparing the case with the client can be beneficial. One mechanism is to create a litigation protocol or checklist. A sample is provided for cancellation cases at Appendix T, though you should create your own, keeping the following principles in mind: •

Think of the case in terms of stages. For example, at the commencement of a case you should file your FOIA, get an engagement letter signed, and do a thorough interview with your client. Your client can work on filling out drafts of forms to apply for relief before any important deadlines are set. Once you have your individual hearing set or even before, you should start scheduling testimony preparation and provide the client with a copy of documents that have been filed with the court. This is just a sampling of some of the steps you should take.

•

Be mindful of important deadlines. Missing a deadline can result in waiving important rights. Of course, the deadlines set by the court to file an application for relief are critical. See Chapter 9. The court might also set additional deadlines prior to the final hearing in a case. Deadlines can be predetermined or can be set by the court as the case progresses. Important deadlines to keep in mind are brief or motion filing deadlines, 2 appeal deadlines, 3 and internal deadlines related to filing certain requests for information with

2

This is typically two weeks prior to hearing or as dictated by the judge. Refer to the Immigration Court Practice Manual. 3 For example, appeal to the Board of Immigration Appeals (BIA) of the immigration judge’s opinion must be reserved at the time that the judge issues the opinion. The appeal must then be filed within 30 days. Refer to the BIA Practice Manual.

8-6

Tab Position 1

Immigrant Legal Resource Center June 2017

enough time to receive requested documents prior to your hearing (e.g., FOIA, medical documents, criminal documents). •

If your client is detained, build in time to effectively litigate your case given the expedited nature of these proceedings.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

As you near your merits hearing, you should prepare a trial binder. A trial binder is the collection of everything you need for the day of your hearing. At minimum, your trial binder should contain the following: • • • • • •

Copies of all past filings and briefings. Relevant case law printed out. Testimony outlines. A list of all possible objections. Copy/outline of closing statement. Offers of proof if needed.

Chapters 9 through 12 cover strategy tips related to relief options, as well as more in-depth eligibility discussions for Cancellation of Removal and Asylum. § 8.3

Document Submission

With any document submission, bear in mind that every filing, no matter how minor, is an impression you make before the court. First, always refer to the Immigration Court Practice Manual 4 to ensure that your filing conforms to the rules of the court, otherwise it could be rejected and a filing deadline missed. Second, ensure that you are presenting your filings in the most effective way possible. For example, if you are submitting over 500 pages worth of documentary support for an asylum case (not uncommon), the judge is unlikely to read every page. Use your index as a comprehensive guide to your documents. Instead of just listing your documents out, include summaries and excerpts in your index such that the judge also gets a sense of the contents and most important documents, when reviewing the index. A sample index is provided as Appendix W. Third, and this may seem overly basic, but proofread your submissions to the court. Messy submissions devalue work that may have been otherwise extensively prepared. Print out your submission prior submitting them for proofreading, and if possible have another person review your work. Aside from proofreading, it is important to cull extensive document submission for information that might impact your client negatively. Double check for any inconsistencies and red flags.

4

Available at www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm.

8-7

Chapter 8

As your case advances before the immigration judge, you will likely submit a series of filings surrounding issues such as contesting removability and documents in support of your client’s application for relief. Related motion practice is an important skill to master, and is discussed more thoroughly below. This section focuses more on form and practical considerations.

Fourth, build in enough time to prepare your filing. Filings inevitably take more time than intended. Documents should be thoroughly reviewed before being submitted to the court and opposing counsel. Documents may need to be translated since all documents must be provided in English or with an English translation. Do not wait until the last minute to review documents in the event that corrections need to be made (e.g., you realize the night prior that your client gave you the incorrect document). Finally, preparing filings always take more time than anticipated. Making copies, paginating, and inserting correct index tabs is surprisingly time-intensive. Remember that all originals go to the judge, a copy goes to opposing counsel, a copy goes to the client, and a copy is kept for your own files.

Chapter 8

Fifth, document your filing. If you are filing in person, get your filing stamped as received by the court. If your filing is mailed, include a conforming copy with a prepaid envelope so that you have proof that the filing was received. (A conforming copy is simply a copy included for the court to send back to you for your records.) Refer to the Immigration Court Practice Manual for further instruction. (Conforming copies need not be a complete copy, if the submissions is voluminous.) If mailing your submission, you may include a basic cover letter. PRACTICE REMINDER: You must provide opposing counsel a copy of every submission filed with the court. Include a Proof of Service, certifying that a copy was served on opposing counsel with every submission to the court. The copy served on opposing counsel must be a complete copy. For more information on proof of service, refer to the Immigration Court Practice Manual: www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm. § 8.4

Rules and Procedures

The Federal Rules of Evidence (FRE) are not binding in immigration court and are instead only loosely followed. In some ways, this benefits immigration counsel. For example, you will generally not be held to the same standards for authentication of evidence as you would be in federal or state court. However, you should still be familiar with such processes and should always provide some authentication for certain submissions 5 to provide them with more credibility. The most significant way in which a relaxed adherence to the FRE affects immigration proceedings is through the treatment of hearsay. Hearsay refers to statements made outside the courtroom at an earlier time that are reported on through the testimony of a witness in court or in a document. Example: Question: What happened next? Answer: Then he said, “You’re not welcome here! We don’t accept your kind here.” And he used a lot of bad words, and that’s when he started to beat me. Whereas hearsay is generally not allowed in federal courts (with few exceptions), it is generally allowed summarily in immigration court. This both hurts and helps immigration counsel. To counsel’s benefit, hearsay can generally be introduced and used to explain critical aspects of your 5

For example, attaching proof of identification or notarization to a character letter.

8-8

Tab Position 1

Immigrant Legal Resource Center June 2017

client’s case. In the above example, hearsay might be a critical component of an asylum case, for instance. Nonetheless, live, first-hand testimony or documentation is preferable. While hearsay statements will be allowed, they will likely be afforded less weight by the judge than direct testimony and evidence.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

When opposing counsel submits hearsay, it is important to object to preserve your record. In practice, the hearsay will likely still be admitted by the judge. However, if the case proceeds on appeal, you can later challenge the consideration of this evidence based on it being hearsay. This will be particular helpful if the judge ultimately finds against your client and bases his or her decision on consideration of such evidence. For example, opposing counsel often submits police reports as proof as to what happened during a particular arrest, even if it did not result in a conviction. Police reports are generally the collection of first and even second-hand statements at the scene of an incident. These witnesses are often unavailable to question later on. Always object to the submission of police reports on the ground of hearsay. Example: Government attempts to submit a police report, showing that although the charges against your client was dropped, his girlfriend submitted a statement saying that he hit her repeatedly and threatened to kill her. Nonetheless, all charges were dropped in the interest of justice. Counsel should object, because the harmful nature of these substantiated statements greatly outweigh their probative value.

§ 8.5

Preserving the Record

Preserving the record refers to making sure all arguments and concerns are documented in the course of proceedings so that you may raise the issues later on appeal. Removal proceedings are voice recorded, a recording stopped and started by the judge on their computer. It is crucial that anything important that happens in court is referenced in that recording, if it will help your client later. You want to ensure that the record accurately captures what occurred in court. On appeal, all judges have is a one-dimensional transcript of what transpired during the hearing. As an advocate, you need to make sure that the record accurately reflects the proceedings. Watch out for the following points which often get lost in transcription: •

Community Presence at Hearing: For example, it may be that your client’s entire family was present during an LPR Cancellation hearing where rehabilitation and family support are crucial. The judge and opposing counsel may take notice of this off record. Nonetheless, make the effort to annotate this on the record. For example, by stating, “Your Honor, I would like to note for the record that respondent’s family members including his mother, his wife, and his three children, are all present at this hearing.” This

8-9

Chapter 8

As a new practitioner, always keep a list of possible objections in your trial binder or available during any hearing (e.g., bond hearing). Preserving the records is also important for other types of objections though hearsay is highlighted above. You may also object to clarify the record, for example if opposing counsel mischaracterizes your client’s testimony. Review the various objection grounds regularly to remain familiar with them. Many practitioners create their own cheat sheet of objections. Some common ones include “asked and answered,” “compound question,” “beyond the scope of direct.” Any of these seemingly basic objections gives your client time to compose themselves, provides an opportunity to get a clearer, better question and response from your client, and breaks the flow of cross-examination.

is particularly important for attendants who will not give testimony since there is no other record of their attendance. Additionally, if your case takes more than one court appearance to complete, it might be important that a witness was available on one day, even if they are later not able to come to court. •

Chapter 8

•

Emotion: Emotion is not always captured in transcription. Thus, note for the record if your client is having a hard time getting through testimony because he or she is crying. The same can be done for witnesses. Depending on what the judge will allow, this can be accomplished in a number of ways. The easiest is to ask that the record reflect that your client is crying. Other possibilities include asking your client questions during your questioning that will help indicate that the client is emotional. You might ask: o

Do you need a minute to collect yourself?

o

Do you need a tissue?

o

Do you need to take a break or get some water?

o

Your honor, is there tissue available for the witness?

o

Your honor, many I approach the witness to hand her the tissues?

Gestures: If gestures are utilized, indicate this for the record as well. For example, if your client is pointing to a certain portion of an exhibit or to an individual in the room, make this clear for the record. Examples include: “Let the record reflect the client is touching his right elbow,” or “Let the record reflect the client is pointing to the signature at the bottom, which reads John Smith.”

PRACTICE TIP: Beware off-record conversations! If the judge addresses legal counsel or your client while the recording is not running, it is important to summarize these words “on the record.” You might need to check with the judge to ensure that the recording is “on.” To do this, you might politely ask, “Your Honor, are we recording?” before proceeding with a critical argument or issue. If the judge makes any statements relevant to your case, decisions on motions, or statements that indicate bias, you want to repeat them while the recording is “on.” This makes it easier to raise these concerns on appeal. § 8.6

Testimony

Testimony preparation is crucial in accurately representing your client’s story. You should practice testimony with all your witnesses and prepare them as to what to expect the day of the hearing. While you cannot ethically coach your witnesses as to what to say and certainly could never instruct witnesses to be untruthful, you can and should advise them as to how to phrase certain things and advise against over-sharing. The number of times you practice testimony with your witnesses will vary. You want your witnesses to be prepared but do not want the testimony to sound rehearsed or coached, as this will harm credibility. Generally, practice once with character witnesses and two to three times with your client. Prior to practicing, prepare an outline with questions organized by theme. These questions may vary depending on the form of relief that you are requesting. A sample outline for direct

8-10

Tab Position 1

Immigrant Legal Resource Center June 2017

examination for a client requesting LPR Cancellation is provided at Appendix X. On direct examination, you are generally limited to open-ended questions though in immigration court you may be allowed to ask some directed questions, though you may have to rephrase if opposing counsel objects. As a general rule, never ask a question to which you do not know the answer. Opposing counsel may ask directed questions on cross but remember that you may still object on certain grounds, such as if opposing counsel is mischaracterizing your witness’s testimony, or relevance.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Finally, as with any procedure before immigration court, review the Immigration Court Practice Manual for additional procedural considerations. For example, prior to any hearing you will submit a witness list indicating, among other things, what your witnesses will testify to and in what language they will provide testimony. Refer to the immigration court manual as it describes the required contents of a witness list. Never call a witness who does not have lawful immigration status. Also, a useful tool here is a motion to present telephonic testimony, so that a witness can testify telephonically. This is particularly helpful if it would be burdensome for a witness to travel and provide personal testimony, for example if your witness is out of state or very ill. This request is made by way of a motion, either oral or written, before the immigration judge. Refer to the Immigration Court Practice Manual for the contents of such a motion. A sample “Motion to Present Telephonic Testimony” is provided at Appendix S.

Testimony Preparation Specific to Character Witnesses. Be selective about the character witnesses that you provide. Each witness will generally serve a purpose. For example, children may be used to highlight that respondent is a good parent. If a victim of your client’s crimes (for example, domestic violence) is available and supportive of your client, you will almost always have them testify as to what happened and that they do not consider your client dangerous. If you have various potential witnesses, do brief interviews with each to assess who might be the best witnesses. Vet them to ensure that your witness can accurately testify to your client’s character. For example, you may want to confirm that your witness knows your client well, as evidenced by their years of friendship. Also consider how your witness may come off to the judge. Ask for local practices in your jurisdiction, but consider presenting about two to four character witnesses. If time for your hearing runs out, the judge may ask you if you want to submit a proffer. A proffer is an offer of evidence into trial. Here, it would be a summary of what your witness will testify to. Since full testimony is helpful in creating a record in the event that the case is denied, a proffer is generally only advised if you are fairly certain that relief will be granted. You can gauge this by asking for a brief conversation off the record with the judge and opposing counsel, and state that since you’re concerned about creating a record, you would like to ask how the judge is inclined to

8-11

Chapter 8

Testimony Preparation Specific to Client. This is your most important witness and the first to be called to the stand. This is your opportunity to humanize your client, highlight their equities, and mitigate bad facts. Ask local practitioners how much time courts typically provide for testimony though plan for an hour or more including cross-examination. If there is translation, testimony may take even longer. Practice testimony with your client two to three times though take care that testimony does not sound rehearsed. Take notes of your client’s replies to ensure that you are presenting all the relevant information and to better tailor your questions to elicit the best information. Finally, sympathize with your client if they are nervous but reassure them that giving testimony is a good thing, because it allows them to tell the judge their story in their own words. To that end, remind your client to make eye contact with the judge throughout testimony.

rule and if opposing counsel is inclined to waive appeal if the judge rules in your favor. A sample character witness outline is provided at Appendix X. Testimony Preparation Specific to Expert Witnesses. An expert witness is a “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Sample expert direct examination questions are included at Appendix X. Consider the following principles when choosing an expert witness. Right to Present an Expert: An expert opinion is another form of evidence that you are submitting for consideration before the immigration judge. As with any other form of evidence, opposing counsel can object to its submission. While rare, if the judge denies your expert the ability to provide testimony, appeal this on due process grounds, since this would inhibit your client’s right to a full and fair hearing.

•

When an Expert Is Needed: You will only need expert witnesses in certain cases. Certain types of cases or issues will trigger consideration of an expert witness. For example, asylum cases often call for expert witnesses regarding country conditions. If your client is mentally ill and this is relevant to your case, you may want to consider a psychiatrist or at the very least submit a professional evaluation. Consult with a supervisor or colleague if you’re unsure as to the value of an expert witness in your case.

•

Cost: Expert witnesses often are not free. Expert witnesses are professionals who will have to take much time out of their schedules to prepare for and participate in your immigration case. However, there are certain “professional expert witnesses” who provide such services regularly, though usually for compensation. If you are at a nonprofit, reach out to your networks to see if anyone knows of an expert witness who is willing to volunteer their time for free.

•

Qualifying Your Expert: In choosing an expert witnesses, consider also that you will have to qualify the expert. That is, you will have to show the court why his individual is qualified to act as an expert on the given issue. The standard for this is broadly defined as anyone who is qualified by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. However, the judge will give your expert more weight if your expert is experienced and has been qualified as an expert in past hearings. You will submit the expert’s curriculum vitae in the witness list in advance of the hearing for this same purpose. At the beginning of direct examination, you can ask your expert witness a series of questions to qualify him or her, or can ask opposing counsel if he or she will stipulate to the same to save time.

•

Maximizing Your Expert’s Value: Even after you have qualified your expert, you will want to bolster their credibility and value in front of the judge. Explain the underlying basis of the expert’s opinion and the sources relied upon to reach his or her conclusions. For example, explain in testimony that the expert psychologist made several personal visits to your detained client and reviewed his or her full medical file. To that end, your expert will likely have prepared findings in the form of a report or other written material which you will have submitted in advance of your hearing. This will be the focus of much of your expert’s testimony.

Chapter 8

•

8-12

Tab Position 1

Immigrant Legal Resource Center June 2017

•

Preparing Your Expert: Expert witnesses will generally be more sophisticated than your client or character witnesses. Nevertheless, prepare your witness for aggressive cross-examination, including questioning your witness’ credibility and how they came to their conclusions.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Finally, keep the following principles in mind when preparing any witness to give testimony: Prepare All of Your Witnesses for Both Direct Examination and Cross Examination: Cross-examination feels very different from direct examination and witnesses should be prepared in advance. Let you witness know that opposing counsel may take different approaches and to be prepared for any approach. For example, opposing counsel may come off nice and empathetic in order elicit your witness’ trust. Other attorneys will come off more combative. To that end, remind your witness not to get angry under such circumstances. Your witness will lose credibility in front of the judge if they get visibly angry. If opposing counsel does become abusive, you can always object. Further, you should practice the types of questions that will be asked. If you know your case well and have prepare your witnesses well, most of the questions they receive on cross will not be new questions to them. Sample cross-examination questions are provided at Appendix X.

•

Tell Your Witness to Ask for Clarification if They Do Not Understand the Question: If your witness does not understand a question, whether from you or opposing counsel, they should ask for clarification. Make sure that your witness is comfortable making such clarifications and even practice making such clarifications with your witness. For example, “I do not understand the question” or “can you rephrase the question.”

•

Tell Your Witness to Say That They Do Not Know Rather than Guess: If your witness does not know the answer to a question, either yours of opposing counsel, they should not guess. This could result in impeachment later on. Instead, instruct your witness to indicate that they do not know if they in fact, do not know. However, if you are on direct examination, as a general questioning technique, you can try to get the witness’ best estimation of an answer. For instance, if the witness does not remember the date/time of a car accident, you can ask certain directed questions. For example, do you recall if the accident was in the spring, summer, fall, or winter? If in winter, do you remember what month? Was it near Halloween or Christmas? Regarding time, was it daylight out or night? Using these techniques, you can elicit information the witness may have forgotten that they had.

•

Remind Your Witness to Be Truthful: This may seem basic but remind your client that they need to be honest and candid with the court. This also means not to give inaccurate information if they are unsure of an answer. For example, if they do not know the exact date they should not make one up and instead answer that they do not recall.

•

Tell Your Witness to Pause So That You Have Sufficient Time to Object: The natural response to a question is to answer immediately if you have the answer. However, if your client does this during cross-examination you may not have an opportunity to object. Tell your client to take a breath before they answer any question from opposing counsel. This gives them an opportunity to clearly think about their response and gives you an opportunity to object if necessary.

8-13

Chapter 8

•

Much has been written regarding testimony preparation and immigration counsel can also look to testimony practices in other areas of law (e.g., other civil and criminal cases) for tips and tricks. To start, check the American Immigration Lawyers Association website: www.aila.org. § 8.7

Opening and Closing Statements

Chapter 8

A respondent should generally be provided the opportunity to provide an opening and closing statement. Indeed, denial of the opportunity to provide an opening or closing statement may be found to be a violation of respondent’s due process right to a fair hearing. 6 In practice, however, there are generally no opening statements in immigration court. Closing statements, however, are more standard. Your closing statement should be brief, approximately five to ten minutes. This is your opportunity to use the theme of your case to tie together your facts and convince the judge to find in your client’s favor. Consider what you’re trying to prove and what pieces of evidence you have to prove your points. Tap into emotional triggers. For example, that your client’s U.S. Citizen daughter who has dreams of attending college in the U.S. might have to grow up without a father. Whatever your arguments are, make sure that you believe them and that you effectively sell them to the immigration judge. Write out a brief outline and practice several times. Time permitting, practice in front of colleagues and ask for suggestions to improve. You will likely make your closing argument seated and you will have your outline in front of you, but try to memorize your closing argument and make eye contact with the judge throughout. § 8.8

Judge’s Decision

The immigration judge may provide his or her decision the same day of the merits hearing or may decide to issue it later, in which case it will be sent in the mail and available in the court file. An immigration judge’s order is not final until the appellate process is exhausted. If neither side reserves appeal after the judge issues his or her decision, then the order becomes final. You will generally always want to reserve appeal if the judge does not issue a decision in your favor. One exception is if your client is detained and prefers to return to their home country, though even here make absolutely certain that your client appreciates that they are waiving their right to continue fighting their case. Indeed, the conversation about whether or not your client wants to reserve appeal should happen long before the judge’s decision, as your client will likely be stressed and a decision of this nature should not be rushed. Plus you need to ensure that any waiver of appeal by your client is knowing and intelligible. Reserving appeal does not mean that you will assuredly appeal. Rather, it means that you are reserving your right to appeal You have thirty days to decide whether or not you want to appeal the decision to the Board of Immigration Appeals (BIA). This gives you time to have a detailed discussion with your client. If you do not reserve your right to appeal, you waive appeal. Additionally, if the BIA does not receive notice of your intent to appeal within thirty days, you likewise waive appeal. If the BIA does not find in your favor, you can appeal to your federal court of appeals, though only as to certain types of 6

See, e.g., Gilaj v. Gonzales, 408 F.3d 275, 290 (6th Cir. 2005) (Stating that “[d]enial of the opportunity to present an opening statements or closing arguments at a deportation proceeding may constitute a due process violation,” though ultimately finding no prejudice) (internal citations omitted).

8-14

Tab Position 1

Immigrant Legal Resource Center June 2017

issues. For example, you cannot appeal on grounds that the immigration judge abused his or her discretion in denying your client a form of relief. The final level of appeal is the U.S. Supreme Court, though the U.S. Supreme Court maintains discretion on which cases it will take certiorari. § 8.9

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Filing Motions

Advocates should think of filing motions as a way to communicate with the court on case matters while the court is not in session. Many are familiar with filing a motion for specific purposes— you might be familiar with asking for a continuance, or motioning the court to change venue after a client is released from detention or moves to a new location. But motioning the court is also an opportunity to give the court advanced notice of potential issues, or to ask the court for an outcome that serves the interest of your client. On the back end, you may move to have a proceeding continued or to request late-filing of critical documents, with evidence to back up your request. While not ideal, t such a motion can be useful to your client on appeal.

In the next few sections we will discuss motion practice as a means to manage and present your case before the immigration judge. The Immigration Court Practice Manual includes a chapter devoted to motions before the court. 7 Refer to the practice manual often to ensure compliance with the Court’s filing procedures. It is a great first resource when preparing anything for immigration court. All motions filed before the immigration court should include 1) opposing party’s position on your motion—whether OCC is opposed, unopposed, or declining to state a position and 2) a proposed order for the judge. Additionally, counsel should never rely on their own statements in a motion where there is evidence to support the motion. For example, a motion about eligibility to adjust should include a copy of the approved I-130 petition, or proof of filing depending on the circumstances. If you are requesting more time to submit documents, any evidence that shows there is a good reason to wait is helpful. For example, a letter from the doctor’s office indicating they are still looking for requested records. Sample motions are included at Appendix S. Motions should include a clear descriptive title on the court cover page. Motions should be submitted at least 15 days in advance of a hearing, and responses should be filed within ten days of the date the motion was filed. If OCC does not respond, this is interpreted as non-opposition. Often OCC fails to respond, then indicates in a subsequent hearing that they are opposed. Advocates should argue that their opportunity to oppose the motion has passed. 7

See Chapter 5 of the Immigration Court Practice Manual, www.usdoj.gov/eoir.

8-15

Chapter 8

Motions can be both substantive and procedural. For instance, a procedural motion might include motioning to continue the case or motioning the court to allow a witness to appear telephonically. Advocates should also consider what substantive motions might be appropriate. As discussed in Chapter 7, the facts of a case might provide a basis for a motion to terminate proceedings. A motion to terminate often is based on substantive legal arguments, such as a legal argument that evidence of alienage should be suppressed, or an argument that the government cannot prove that the alleged facts establish a ground of removability. (See Chapter 7 for a discussion of challenging the NTA and suppressing evidence.) A motion is also the proper way to ask a judge to reopen a case. Motions to reopen can be quite complicated. It is important to consult with an expert in this area before filing such a motion. For some types of motions to reopen, the immigrant is only allowed to file one, so it is important that such a motion is comprehensive.

Nonetheless, motions are often filed outside this timeframe: if you are motioning the court to accept late-filed documents, for instance, it is still important to file your motion even though you cannot adhere to these deadlines. A.

Motions to Continue and Motions to Advance

Chapter 8

Motions to continue are an important case management tool. Counsel can motion to continue a case for various reasons, including unavailability of counsel, awaiting further documentation, unavailability of key witnesses, and needing more time to gather supporting documents. Many respondents request a continuance at the first master calendar hearing in order to have sufficient time to find an attorney. An initial motion such as this is granted as a general matter. Often, after getting retained to represent an individual in removal proceedings, counsel will request time to prepare. If the client has already had one continuance to hire counsel, this is often the second continuance request. These motions, with an expression of good reason, are also generally granted once. These continuances are often requested orally at a master calendar hearing and are usually only granted after the respondent physically appears in court. In these initial stages of a case, a representative might ask to continue a master calendar in writing where additional time is needed or where hired counsel has a conflict with the date of the next master calendar hearing. In cases where counsel wishes to continue an individual hearing, the request should be made well in advance or be necessary for emergent reasons. Local practice varies as to docket management and scheduling individual hearings. In court locations where a case stays on the master calendar until the case is entirely ready to go forward before the immigration judge, the judges are less likely to entertain a motion to continue an individual hearing to get more documents or further prepare. In locations where the courts set everything to an individual hearing after pleadings have been taken, case management issues that arise before the individual hearing might be better tolerated. It is important to ask local practitioners for feedback about your particular judge and regular practice around motions to continue. According to regulations, the immigration judge may grant a motion to continue for good cause. 8 A respondent might need to advance a hearing where eligibility depends on a decision by a certain date. For example, a person who needs to file an asylum application before the one-year deadline might motion the court to advance a master calendar hearing to make this possible. See Chapter 12 for more information about filing for asylum. Additionally, a person who might age out of eligibility, or has a qualifying family member that will age out, might also need to advance a hearing. Example: Maria has two USC citizen children and is applying for cancellation of removal. Maria’s oldest daughter, Teresa, suffers from severe depression. Teresa turns 21 on Jan. 2, 2016. Maria’s hearing is currently scheduled for March 2016. Maria’s representative should motion the court to advance her hearing to a date before Jan.2, 2016 so that Teresa remains a qualifying relative for cancellation of removal at the time of hearing. See Chapter 10.

8

8 CFR 1003.29.

8-16

Tab Position 1

Immigrant Legal Resource Center June 2017

Considerations for filing a motion to advance include: • • • • • •

Minor child “aging out” of derivative status* Minor child “aging out” of a visa category for adjustment* Minor child “aging out” of SIJS eligibility Asylum application needs filed to meet one-year deadline** Health crisis requires immediate hearing (this could be the health of a key witness or qualifying relative) Change in conditions in client’s home country: counsel should be strategic about considering factors that strengthen a client’s case depending on when a client’s case is heard. For asylum cases, representatives must keep abreast of country conditions of the client’s home country.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

*The Child Status Protection Act provides some protection for these two situations, but not all. Don’t assume the CSPA will protect your client without doing a thorough analysis. **Asylum applications can now be filed at the court’s window, and do not require a court hearing to be accepted. See Chapter 12. B.

Motion to Change Venue

According to regulation, no change of venue shall be granted, “without identification of a fixed street address, including city, state and ZIP code, where the respondent/applicant may be reached for further hearing notification.” In addition, the court requires that the motion include: • • • • • •

9

the date and time of the next scheduled hearing an admission or denial of the factual allegations and charge(s) in the Notice to Appear (Form I-862) a designation or refusal to designate a country of removal if the alien will be requesting relief from removal, a description of the basis for eligibility if the address at which the alien is receiving mail has changed, a properly completed Alien s Change of Address Form (Form EOIR-33/IC) a detailed explanation of the reasons for the request

8 CFR 1003.20.

8-17

Chapter 8

The immigration judge may only change the venue of a case (from one court to another) on motion from one of the parties. 9 A motion to change venue should be granted if you can show good cause for the motion. Usually, such a motion is made because the client has moved and wishes to pursue the case near his home. The immigration judge may grant a change of venue only after the other party has been given notice and an opportunity to respond to the motion to change venue. Thus, it is really important that any motion to change venue is made well in advance of a scheduled hearing. If the motion is not granted before a scheduled hearing date, it is imperative that the respondent appear in the court where the hearing was originally assigned. If the respondent does not appear, and the motion has not been granted prior to the hearing, the immigration judge can order the person removed in absentia.

PRACTICE TIP: Note that the court requires that written pleadings are included with any motion to change venue. Failure to plead prior to or in a motion to change venue will result in denial of the motion.

Chapter 8

C.

Motions to Accept Late Filings or Extension Requests

It happens. Despite best efforts, some filings will be late. New documentation might surface, new issues emerge, the copier breaks in your office, or the client comes in with a pile of information the day the documents are due in court. Do not be afraid to motion the court for extra time, or in the case where you have already missed the deadline, your motion should ask the court to accept late-filing. While counsel often makes such motions in person at the hearing, judges appreciate the formality and communication of a written motion. In so doing, as a representative you indicate to the court that you were aware of the deadline and take the deadline seriously. It also gives you an opportunity to document the reasons for the lateness in writing, which can help on appeal if the judge refuses to accept late documents. Be sure to include specific reasons for the extension request or lateness. It is always best to make such a motion at the earliest possible date. If you know ahead of time that an extension will be necessary, ask the court in advance, documenting the reason for the request. Nonetheless, even if you are missing a deadline set by the court, it is important to make every effort to get the submission before the court. In order to zealously represent your client, you must make every effort to get the evidence heard. This includes submitting documents late, motioning the court to accept late documents, and getting in arguments in support of late-filing in the record. D.

Motion for Telephonic Testimony or Telephonic Appearance

In certain circumstances, counsel, respondent, or a witness might be allowed to appear telephonically. For representatives, such a motion is usually granted for the limited purpose of initial matters in a master calendar hearing or a bond hearing. This is case-by-case and judge-byjudge specific. Additionally, counsel should consider what is in the best interest of your client. Nonetheless, a telephonic appearance might be necessary to offer representation to a client who has been detained in a remote detention facility. Respondents are rarely allowed to appear by telephone. However, in special circumstances, a court might entertain such a motion. Telephonic testimony of witnesses is often permitted for expert witnesses. It is still important to include information in the motion regarding the witness’s inability to appear in person. For expert witnesses, a copy of the curriculum vitae should be attached. Representatives have also succeeded in motions to permit telephonic testimony of witnesses in support of claims that are otherwise not available. Witnesses in the client’s home country might be allowed to testify electronically. Most courts require a prepaid calling card in these instances. Often lay witnesses will need to appear at a consulate or otherwise find a means to verify their identity before telephonic testimony is permitted. Again, even if the court does not grant a motion, making the motion to allow witnesses telephonically preserves the issue on appeal. Counsel should title the motion “motion to permit telephonic appearance of counsel” or “motion to permit telephonic testimony of witness” depending on the situation.

8-18

Tab Position 1

Immigrant Legal Resource Center June 2017

E.

Motion to Set Case to Status Conference

By regulation, a case may be set for a pre-hearing conference. 10 Pre-hearing conferences may be scheduled at the discretion of the immigration judge. The conference may be held to narrow issues, to obtain stipulations between the parties, or to otherwise simplify proceedings or discuss important issues. Representatives for respondents in court should use this possibility to the client’s advantage. It is often helpful to settle legal issues with opposing counsel before preparing a case for testimony. Additionally, if complex issues arise that impact your ability to be ready to go forward with an individual matter, motioning for a status conference to discuss issues might be a way to get the needed delay in proceedings and address new issues with the court. If it is a pure legal issue that requires discussion, the judge might consider waiving the appearance of the respondent, if you think that would be useful. F.

Motion to Administratively Close the Case

PRACTICE TIP: The immigration court may grant administrative closure without the consent of both parties. In 2012, the Board issued a decision in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) holding that the judge may grant administrative closure, even if one party objects. In Matter of Avetisyan, the Board set out factors the IJ should consider in reaching a decision on administrative closure when there is opposition: • • • • • •

11

The reason administrative closure is sought The basis of opposition The likelihood the applicant will succeed in any petition, application that is the basis of the administrative closure request Anticipated time period of the closure Either party’s contribution to delay in the case The expected outcome of removal proceedings should the motion be granted

8 CFR 1003.21. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012).

8-19

Chapter 8

In the next chapter, we discuss the concept of prosecutorial discretion. Administratively closing the case is often the outcome of a case in which ICE agrees to not continue with prosecution at this time. (Note that ICE could also agree to dismiss the case or not file the NTA with the court in the first place.) In cases where you think administrative closure is appropriate either as an exercise of prosecutorial discretion, or because your client will later become eligible for some form of relief, motioning the court for administrative closure might be an option. It is best if ICE will join or not oppose such a motion. See next section on joint motions. Nonetheless, the court has the authority to grant administrative closure without agreement of ICE. 11 As such, advocates should argue for administrative closure even in cases where OCC or ICE has denied your request for prosecutorial discretion.

10

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

G.

A Brief Word on Joint Motions

The Immigration Court Practice Manual requires that counsel reach out to the opposing party prior to filing any motion to ascertain opposing counsel’s position. 12 This is good practice. For simple motions, this provides the benefit of notifying the court from the point of initial filing that the motion is unopposed, which allows the court to make a ruling without waiting for a response from the opposing party. Even in situations where OCC opposes the motion you intend to file, learning this beforehand allows counsel to better prepare arguments to support your position. Additionally, citing their opposition in your initial motion, allows the court to rule without waiting for further response. This is very useful to you in simple motions, like motions to continue. Often OCC will indicate that they want to see the motion before taking a position. In these cases, include a point in your motion that indicates you contacted opposing counsel and that counsel has declined to take a position at this time.

Chapter 8

In certain circumstances, the OCC will consider joining in a motion filed by the respondent in removal proceedings. ICE will join in a motion to dismiss removal proceedings to allow the respondent to pursue an adjustment application in front of USCIS. 13 ICE may make a motion to dismiss or join in such a motion where the respondent can demonstrate prima facie eligibility to adjust and does not have a pending asylum application. Joint motions have not been easy to obtain since the Trump administration took office in January 2017. In a memorandum dated February 20, 2017, Secretary Kelly stated that all prior enforcement memos were rescinded to the degree that they conflict with the current memo. Arguably, the March 17, 2001, Bo Cooper, General Counsel (INS) memorandum, indicating that ICE counsel may join in a motion to reopen for consideration of adjustment of status in cases where adjustment of status was not available in the prior hearing, is not in direct conflict. However, practitioners report that OCC has indicated they will not routinely join in any motions. Such inquiries can still be made and may be granted albeit more sparingly then in the past. Inquire with local practitioners for the best way to get your request in front of ICE. Additionally, you can call opposing counsel assigned to your case and ask them for the preferred method of communication.

12

Immigration Court Practice Manual at 5.2(i). ICE Memorandum, “Exercising Prosecutorial Discretion to Dismiss Adjustment Cases,” William J. Howard (Principal Legal Advisor), October 6, 2005.

13

8-20

Tab Position 1

Immigrant Legal Resource Center June 2017

CHAPTER 9 FILING FOR RELIEF

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8

Introduction ........................................................................................................ 9-1 Jurisdiction ......................................................................................................... 9-1 Special Considerations on Jurisdiction............................................................... 9-4 Strategies while Awaiting a Decision by USCIS ............................................. 9-10 Filing Applications and Documents ................................................................. 9-12 Voluntary Departure ......................................................................................... 9-14 Prosecutorial Discretion ................................................................................... 9-19 Deferred Action for Childhood Arrivals .......................................................... 9-21

§ 9.1

Introduction

This chapter introduces the various forms of relief that may be available to an individual that is facing removal and discusses filing procedures. Someone in removal proceedings appears before a judge in immigration court, but that does not mean that the relief sought has to be obtained through the court. For instance, your client’s best option might be U non-immigrant status, something which the judge cannot adjudicate. This chapter will outline over which applications of relief an immigration judge has jurisdiction and explain how to file for relief. We will consider voluntary departure as a remedy in court. Lastly, we will discuss the concept of prosecutorial discretion and what it means to seek “prosecutorial discretion” as an option in immigration court. The next three chapters will give special attention to three forms of relief: cancellation of removal for nonpermanent residents; cancellation of removal for permanent residents and asylum.

§ 9.2

Jurisdiction

Before, we discussed that the immigration court obtains jurisdiction over an immigrant’s removal case when the Notice to Appear is filed with the court. This means that the court is now vested with deciding whether the person should be removed and whether the person has options for relief from removal. We also must consider whether the immigration judge has authority to grant a specific type of relief. The immigration court has permission to hear certain types of cases, but

9-1

Chapter 9

Each form of relief could warrant a manual of its own. The purpose of the following chapters is to introduce you to the various relief options and to help issue spot and identify potential relief for your clients. Most cases will require further research beyond what is provided in the next chapters to adequately prepare legal arguments on eligibility. Nonetheless reviewing these chapters should help assure that potential relief from removal is not overlooked. A thorough intake or screening sheet is the best way to check for all relief options. See Appendix D for examples. Additionally, these chapters include practice tips unique to filing for the various forms of relief in the course of removal proceedings.

cannot make decisions on all types of cases one might present to an immigration agency. For some forms of relief, the immigration court has sole jurisdiction, meaning that a USCIS adjudicator or other agency cannot decide the case in the first instance. For other petitions and applications, USCIS might be the only agency with power to grant the application. And for some, either the immigration court or USCIS may make a decision. Many of these cases can be filed first with USCIS and are referred to court only if USCIS denies the application. Applications that are filed for the first time in court are considered defensive applications, because they are filed in defense to removal. An application that is first filed before USCIS, before removal proceedings commence, is considered an affirmative filing, because the person came forward and filed on their own, affirmatively, prior to immediate threat of removal. Example: Lou has been placed in removal proceedings and currently has no valid immigration status in the United States. After a thorough screening, you discover that Lou was the victim of a violent crime and could qualify for a U visa. The immigration judge cannot decide such an application (Only USCIS has jurisdiction). Because Lou is in removal proceedings, counsel will have to ask the immigration judge to continue the case; close the case; or terminate the case until a decision has been made by USCIS. If granted, Lou will ask the judge to terminate proceedings against him, if the court has not already done so. Example: Marta has lived here for 15 years and takes care of her LPR father, who has terminal cancer. She has heard that there is an application for those that have lived here for more than 10 years with hardship and wants to file. She is not currently in removal proceedings. Marta is referring to cancellation of removal. Marta cannot file this application affirmatively—this application is a last resort to fight removal in front of the judge. She can only file if she is in removal proceedings.

Chapter 9

A.

Court Only Applications for Relief

The immigration court is the only place one can apply for cancellation of removal or suspension of deportation, 1 withholding of removal and relief under Article 3 of the Convention Against Torture. In these cases, the judge hears the case as the first adjudicator. Cancellation is a relief of last resort and is filed in defense to charges of removal. There is no venue to file such an application with USCIS. While some practitioners file other applications to get referred to immigration court, in order to then file an application for cancellation of removal, this is not best practice. A cancellation application is discretionary, and there is no guarantee that your client will be granted this form of relief, or that the factors that appear strong in one moment will remain strong at the time of hearing. Please see the next chapter for more information. Asylum is an application that is often filed affirmatively with the asylum office, with an indication that the person is also seeking withholding of removal. While the application, Form I589, covers asylum, withholding of removal, and relief under the Convention Against Torture, only the immigration judge may decide a case for withholding. 2 Thus, if your client is not eligible 1

The one exception to this is for certain Special Rule Cancellation applications under NACARA. The asylum office has jurisdiction in cases where certain requirements are met. See 8 CFR § 240.62 and Chapter 10 for more information. 2 See 8 CFR § 208.16.

9-2

Tab Position 1

Immigrant Legal Resource Center June 2017

for asylum, the asylum office will necessarily refer the application to the immigration court for consideration of a withholding claim and relief under the Convention against Torture. See Chapter 12 for more information on asylum. Additionally, for more information about jurisdiction concerns, see Subsection C below.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Waivers under INA § 237 are also generally only requested in immigration court. Practically speaking, the IJ is the adjudicator that must decide deportability of a lawful permanent resident and thus must consider any waiver of deportation. For example, a waiver under § 237(a)(1)(H) of the Act for certain misrepresentations may be granted by the Attorney General, and would be applied for as a defense to charges of deportability in immigration court. A waiver such as the waiver under § 237(a)(1)(H) does not have an application and is simply requested in immigration court either orally or by submitting a court caption sheet, with a written request for waiver under 237(a)(1)(H). B.

Shared Jurisdiction over Relief

In some cases, the immigration judge can review a decision of USCIS, or hear the case again after the agency has denied the case. Additionally, in other cases, either an immigration judge or an agency officer might be allowed to hear a particular application. For example, both an immigration judge and a USCIS officer may decide an application for adjustment of status. In addition, if USCIS denies such an application, the immigration judge can then re-hear the case and make its own decision. With both asylum and adjustment of status, the immigration judge can either decide the case after it was filed affirmatively and then denied by the agency, or it may take the application in the first instance, defensively. If the application was first filed with the agency and denied, in both asylum and adjustment of status cases, the immigration judge may hear the entire case and make its own decision—the judge is not limited to reviewing only the reasons for denial given by USCIS.

In some instances, the judge has jurisdiction to review a prior denial by USCIS, but does not hear a case in the first instance. This means that a judge can only review the case if the USCIS first considers the application and denies it. For example, generally speaking, the immigration judge can only review a denied I-751 (the petition to remove the condition on permanent residence). When considering relief for a person in removal, it is important to review whether the judge has authority to take the application and render a decision. You can find this information by reviewing the regulations associated with the specific application, or coming to this section for some general guidance. In § 9.3, we will discuss some issues that affect whether the judge may hear a case in special circumstances.

9-3

Chapter 9

Example: Tomas filed for asylum in front of the asylum office. He filed his application affirmatively, before he was placed in proceedings. The asylum office denied his application because he failed to appear at his interview, and because he indicated he was not in status on his application, the office referred his case to immigration court for a hearing. Tomas can now appear in front of the judge and present his entire story and why he believes he qualifies for asylum. The case in front of the judge is not limited to a discussion about why he missed his interview.

C.

Court Has No Jurisdiction over Relief

There are certain types of relief in which the immigration judge does not have jurisdiction to adjudicate. These include: an SIJS petition, T visa, U visa, and DACA, among others. In those cases, advocates are recommended to file for a continuance, so that the applicant can seek that particular relief with USCIS or another agency. Additionally, for those that wish to adjust status, the underlying visa petition must be granted by USCIS. The court has no jurisdiction to decide I130 petitions. § 9.3 A.

Special Considerations on Jurisdiction

Adjustment of Status 1. Introduction

A person can change immigration status in a number of ways. When a person changes immigration status to permanent resident without leaving the United States, he or she goes through an adjustment (change) of immigration status. This section discusses adjusting to permanent residence under 245(a) of the Act. 3 See INA § 245, 8 CFR § 245. This is what is commonly referred to as adjustment of status. However, in reality people adjust status to permanent resident through other ways as well. A person granted cancellation of removal also adjusts status to permanent resident. In addition, asylees and refugees can adjust status to permanent resident after a certain amount of time here, but they do so through a different provision. See INA § 209. In order to adjust status under INA § 245(a), the immigrant must be eligible for a visa through family or work. In addition, they might have a special immigrant visa that allows them to adjust without a sponsor, such as a self-petition under the Violence Against Women’s Act (VAWA). The most common adjustment in removal occurs when the respondent has a family member that is a permanent resident or U.S. citizen that can petition for them. This family member might be a spouse, parent, adult child, or sibling. Please see Families & Immigration: A Practical Guide to learn more about immigrating through family.

Chapter 9

2. Jurisdiction A judge only may adjudicate an application to adjust status in cases where the judge has jurisdiction. A judge cannot adjudicate an application for adjustment for someone who is not subject to removal proceedings. For those that are not in court, they simply file an affirmative application before the USCIS. The immigration judge has jurisdiction over adjustment applications filed in the first instance before the immigration judge, as well as jurisdiction to hear a case that was previously denied by USCIS. In order for someone to adjust in court, they must have an approved and current visa petition— such as an I-130, I-140, or I-360. The judge does not have jurisdiction to adjudicate the visa petition. Additionally, the judge has jurisdiction to grant most needed waivers of inadmissibility that are filed in conjunction with an adjustment application. 8 CFR §§ 245.2(a)(l), 1245.2(a)(1), 3

For information on adjustment based on asylum, please see INA § 209. For NACARA and Cancellation adjustments, please visit the next chapter.

9-4

Tab Position 1

Immigrant Legal Resource Center June 2017

1240.11(a)(2). One important exception to this is the process for filing a provisional waiver, Form I-601A for unlawful presence. 4 While the immigration judge has jurisdiction to consider an I-601 waiver for this ground of inadmissibility, the I-601A waiver process for unlawful presence may only be decided by USCIS, and is designed to allow those that need to consular process an opportunity to have their unlawful presence waiver applications adjudicated prior to leaving the United States. (Those that need this waiver are not also eligible to adjust status in front of the judge. They need the waiver because they must leave the U.S. to be eligible to change status to lawful permanent resident.) Please see ILRC’s manual, Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal, for details on this process.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

If an immigration judge denies an application for adjustment of status, the person may appeal that decision to the BIA. The person can maintain work authorization while the appeals are pending. 8 CFR § 274a.12(c)(9). a. IJ has no jurisdiction over adjustments for arriving aliens Generally, USCIS has jurisdiction to adjudicate an application for adjustment of status, unless the jurisdiction is with the immigration judge. 5 The immigration judge does not have jurisdiction to adjudicate an adjustment of status application of an arriving alien, unless the alien 1) already properly filed an adjustment application with USCIS, 2) returned on advance parole to pursue the previously filed application, 3) is denied adjustment by USCIS, and 4) is placed in removal proceedings either upon the return on advance parole or after USCIS denied the application. 6 If the person wishes to pursue a new adjustment based on a new visa, USCIS will have jurisdiction. Example: Maria entered the United States on advanced parole. As such, she is an arriving alien that has not been admitted to the United States. If Maria files for adjustment of status, USCIS will have jurisdiction over her case. The judge will not be allowed to hear her case, unless the conditions above apply. If Maria first filed her application with USCIS, the judge then may consider that application if she is later referred to proceedings and wishes to pursue the same application. b. Marriage while in removal proceedings

4

See 8 CFR § 212.7(e). 8 CFR § 245.2(a)(1). 6 8 CFR § 1245.2. 5

9-5

Chapter 9

If the applicant marries and seeks adjustment while in removal proceedings as a defense to removal, the marriage is presumptively fraudulent. When filing the I-130 petition on behalf of the spouse, the petitioner must request that this presumption be waived and the application considered. Because the marriage is presumed to be fraudulent, the couple’s I-130 will be subject to higher scrutiny and the couple is often subjected to a longer fraud interview. The couple should be prepared to show that the marriage is bona fide through documentation and must be well prepared for the I-130 interview. Documents used to prove a bona fide marriage include: joint bank accounts, joint credit card accounts, insurance forms naming each other as beneficiaries, rental agreements with both parties names, birth certificates of any children the couple may have, wedding pictures, and any cards from friends or relatives that the couple may have received, etc.

PRACTICE TIP: Lawful Permanent Residents can re-adjust status as a defense to removal. If the ground of deportability is not a ground of inadmissibility, they may be able to adjust without a waiver. Example: LPR Connor is charged as deportable from the United States due to his conviction for possession of a gun. See INA § 237(a)(2)(C). His wife, Sonia, is a USC. She can file a new I-130 family-based visa petition on his behalf and he can re-adjust to lawful permanent resident as a defense because possession of a gun is not a ground of inadmissibility. This relief is helpful for Connor if he does not have enough time accrued to qualify for cancellation of removal. Additionally, an immigrant may only be granted cancellation of removal one time. Connor might want to adjust to save his shot a cancellation for a problem in the future. The down side? Connor will lose any years accrued as a permanent resident if he readjusts. If Connor wants to naturalize, he might prefer cancellation (if he qualifies) so that he can apply for naturalization sooner.

Chapter 9

Example: What about LPR Pablo who is charged with two CIMTs? Pablo is also married to a USC. Even though Pablo is inadmissible for two CIMTs, he could apply for a 212(h) waiver for his crimes, in conjunction with an application for adjustment. Thus, this option would still be an option for Pablo. Of course, it will be more difficult for Pablo because he will have to convince the judge that he is deserving of the 212(h) waiver. PRACTICE TIP: Don’t Forget to Consider § 245(i) Adjustment of Status. In 1994, Congress created a second kind of adjustment of status under INA § 245(i) for people who did not qualify for regular adjustment of status under § 245(a). INA § 245(i) allow some classes of people to adjust who did not qualify under § 245(a) because it waives §§ 245 (a) and (c) provisions. This form of adjustment, however, is only available to beneficiaries of an immigrant visa petition (Form I-130 or I-140) or labor certification application that was filed on or before April 30, 2001, when § 245(i) expired. 7 The petition that qualifies them for 245(i) does not necessarily need to be the same petition that they can currently use to adjust status. Eligibility for § 245(i) attaches to the person (the beneficiary) rather than to a particular petition. Beneficiaries with visa petitions filed between January 15, 1998 and April 30, 2001 must also demonstrate that they were physically present in the U.S. on December 21, 2000. 8 (Beneficiaries with visa petitions filed before January 15, 1998 do not have to prove physical presence at any time). Importantly, the person can be any beneficiary of a petition that qualifies; she does not need to be the principal. As such, derivatives, whether listed on the petition or not, may qualify for 245(i). Example: Graciela and her brother Julio are sad to find out that he cannot adjust in the United States (under § 245(a)) because he entered illegally. When discussing this with their mother, they find out that Graciela’s aunt, Mariela, filed a petition for her sister,

7

Mailed petitions are considered to be timely filed if postmarked before April 30, 2001; see 8 CFR § 245.10(a)(2)(i). 8 See LIFE ACT of 2000 and www.uscis.gov/files/pressrelease/Section245ProvisionLIFEAct_032301.pdf. Note that the physical presence requirement applies to the principal beneficiary, not a derivative beneficiary of the petition.

9-6

Tab Position 1

Immigrant Legal Resource Center June 2017

Graciela, and Julio’s mother in 1997. At that time, Graciela’s brother Julio was under 21, as such he was a derivative of his mother when Mariela filed the petition. If Julio has a new petition that is current now, he would be able to use 245(i) from Mariela’s old petition for the family, and then adjust through a new, current petition. Julio does not need to establish that the principal beneficiary was present on December 21, 2000 because Mariela filed the I-130 before January 15, 1998. This might happen when someone like Julio was a child derivative on an old petition, but later marries a U.S. citizen.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

For more information on “grandfathering” under 245(i) and retaining eligibility under this benefit, see ILRC’s manual Families & Immigration: A Practical Guide, and USCIS’s Policy Memorandum. B.

TPS (Temporary Protected Status) 1. Introduction

Under the Immigration Act of 1990, the Attorney General may designate Temporary Protected Status (TPS) for any foreign country encountering catastrophic events such as ongoing armed conflict, earthquake, flood or other disasters, or other extraordinary and temporary conditions. Citizens of that country will not be forced to return there from the U.S. for a designated period of time, which can be extended, and will receive employment authorization. 9 Congress designated El Salvador as the first TPS recipient, under a separate statutory provision. 10 Salvadorans under TPS were permitted to continue protected status under a similar program, Deferred Enforcement Status or DED. Past registration under TPS or DED is important now to Salvadorans who apply for NACARA benefits. See Chapter 10. El Salvador was again designated for TPS after the earthquake in February 2000. The list of countries granted TPS changes frequently. TPS generally is granted for only a year at a time, but often with several renewals. For up to date information about which countries currently are designated for TPS and special requirements for each country’s nationals, consult the DHS (here, USCIS) website and/or the periodical Interpreter Releases, which is found in most county law libraries. 11 A person can generally terminate a removal case by showing a grant of TPS. Nonetheless, a person granted TPS could go through removal proceedings if they are also applying for other relief. Thus, counsel with an applicant for TPS that has clear eligibility for other relief must

9

INA § 244A, 8 USC § 1254a, added by IA90 § 302(b)(1). IA90 § 303. The Salvadoran TPS provisions of the Immigration Act of 1990 were not made a part of the INA, but they often are reprinted immediately after INA § 244A, the general TPS section. 11 For information about individual countries currently designated as TPS, and a list of past designees with termination dates, go to www.uscis.gov/tps. 10

9-7

Chapter 9

2. Jurisdiction and strategy

devise the best strategy for the client. At the end of all TPS programs, the DHS has the power to issue a Notice to Appear to the applicant and begin removal proceedings. 12 The BIA has held that a person can apply for TPS in removal proceedings. First, if the applicant applies with USCIS, the immigration judge can review a denial, even where administrative remedies have not been exhausted. 13 Second, the BIA has ruled that a non-citizen can assert a right to TPS in removal proceedings for the first time. 14 This means that the immigration judge can make a decision on an applicant’s request for TPS in the first instance. Prior to such case law, the IJ would only defer to a determination made by USCIS. Thus an applicant eligible for TPS has many options. She may file for TPS affirmatively, and request termination or administrative closure of removal proceedings; an applicant may ask the judge to decide an application for TPS instead of applying with USCIS; an applicant can be granted TPS and still seek other relief, or an applicant can ask the judge to review a denial of TPS made by USCIS or the Administrative Appeals Unit. 3. TPS and adjustment of status eligibility Two circuit courts of appeals have held that a grant of TPS status serves as an “admission” for purposes of adjustment eligibility. 15 The Sixth and Ninth Circuits have held that, a grant of TPS status is an “admission” and sufficient to meet the threshold requirement of having been “inspected and admitted or paroled” under INA 245(a). Thus those that initially entered without inspection, then received TPS, may now be eligible to adjust status, provided that they meet other requirements and are the beneficiary of a current visa petition. Nonetheless, in the Ninth Circuit, USCIS has been instructed to hold cases for adjudication, pending a possible petition to rehear the case en banc. However, on July 28, 2017, the mandate issued, making the court’s decision final. Thus, adjustment might be an important defense for those who have been, at some point after an entry without inspection, granted TPS. Advocates should raise this argument before immigration judges. C.

Asylum

Chapter 9

An application for asylum can be filed affirmatively with the DHS, or filed with the immigration court as a defense to removal if the person is in removal proceedings. If DHS intends to deny an

12

Because of the settlement in the American Baptist Church v. Thornburgh case, the details of what happens to many of the Salvadoran TPS/DED recipients differ from what happens at the end of the TPS programs for people from other countries. 13 Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007), on 8 USC § 1254(b)(5)(B) (2000); INA § 244(b)(5)(B). “The statute provides, without qualification, that administrative procedures will not prevent an alien from asserting his right to TPS in removal proceedings. Therefore, the regulations must be read as providing de novo review of eligibility for TPS in removal proceedings, even if an appeal has previously been denied by the Administrative Appeals Unit. See 8 CFR §§ 244.18(b), 1244.18(b) (stating that after proceedings have been instituted, the respondent has the right to a de novo determination of eligibility for TPS).” Id. at 102. 14 Matter of Lopez-Aldana, 25 I&N Dec. 49 at n. 1 (BIA 2009). 15 See Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), Ramirez v. Brown, No. 14-35633, __ F.3d __ (9th Cir. 2017). But see, Serrano v. United States Attorney General, 655 F.3d 1260 (11th Cir. 2011) (holding that TPS is not an admission).

9-8

Tab Position 1

Immigrant Legal Resource Center June 2017

affirmatively filed application for asylum in which the applicant is out of status, it will refer the case to immigration court, and he can renew his asylum application before an immigration judge. Restriction on removal, commonly referred to as “withholding of removal” is usually an option when someone is barred from asylum for some reason, such as applying several years after they have arrived in the United States. Withholding is available to people in removal proceedings whom the judge determines are more likely than not to have their life or freedom threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in their home country.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

There is an additional form of relief aside from asylum and withholding of removal for those fearing return to their home country. Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”) 16 prohibits contracting countries from expelling, returning, or extraditing a person to a country where he or she would be tortured. The U.S. ratified CAT in 1994 and the treaty became effectively binding on the United States on November 20, 1994. 17 CAT is available to those in removal proceedings who do not qualify for asylum or for traditional withholding of removal and fear torture in their home country. In cases where the applicant is barred from asylum, the applicant may pursue a claim for withholding of removal or relief under CAT with the same form, Form I-589. Asylum Only Hearings. Keep in mind that some persons might end up in front of the immigration judge for asylum only hearings. Generally, stowaways, crewman and visa waiver recipients who request asylum will only be allowed to present their asylum case to an immigration judge. These are hearings limited to a claim of asylum and related applications, with few exceptions.

Withholding Only Hearings. Additionally, those that are subject to reinstatement of removal or subject to expedited removal under INA 238(b) will be given a “reasonable fear” interview by an asylum officer. If the applicant is found to have a reasonable fear, he or she will be referred to an immigration judge for a claim limited to withholding of removal. 18

16

Opened for signature February 4, 1985, G. A. res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in L.L.M. 535 (1985). 17 See In Re J-E, 23 I&N Dec. 291 (BIA 2002). 18 8 CFR 208.31; 8 CFR 208.16. Organizations are contesting this practice. See AILA amicus brief in Lanza v. Holder (11th Cir.), AILA Doc. No. 15043006.

9-9

Chapter 9

Expedited Removal and Credible Fear Determinations. Arriving aliens apprehended at the border, or within 100 miles of the border (and cannot show 14 days of presence in the U.S.) are subject to expedited removal pursuant to INA 235. If such a person expresses fear of return to their home country, they are entitled to a credible fear determination. If an asylum officer determines that the person does have a credible fear of return, the case is referred to proceedings before the immigration judge. There is a possibility that the expedited removal process will be expanded to cover more people within the interior of the United States. To date, no further expansion has occurred. It is important to be aware of this policy, because to apply it more broadly greatly infringes on the right to due process and proceedings for those living in the United States.

§ 9.4

Strategies while Awaiting a Decision by USCIS

If the main benefit or initial petition must first be filed with USCIS, the applicant will need to pursue relief with USCIS and ask the judge to wait for the decision before taking further action in removal proceedings. There are a few options to consider in cases where some part of the relief must be sought with USCIS. Counsel could ask the court to continue the case to a later date on the calendar; to administratively close the case; or to terminate the case to allow the applicant to pursue relief before USCIS. In recent years, given the culture of prosecutorial discretion to manage dockets, practitioners reported great success with administrative closure and terminations in certain circumstances. Since February 2017, however, practitioners report that counsel for ICE is opposing most requests to terminate or administratively close proceedings. These options will be discussed more below. A.

When Do You Need the Judge to Wait for USCIS?

The most common example is an adjustment based on a visa petition filed by a family member. In order to adjust status, the applicant must be the recipient of an approved visa petition. For cases based on family relations, they must have an approved I-130 that is current. Additionally, VAWA self-petitioners and Special Immigrant Juvenile Status petitioners must file the I-360 with USCIS for adjudication, and after approval, may adjust status before the immigration court if they are already in proceedings. (If the person is not already in removal proceedings, they can simply file the adjustment application with USCIS.) In most cases, if the respondent is adjusting through an immediate family member, the Form I-485 may be filed with the court, while concurrently filing the Form I-130 with USCIS. If doing so, advocates will have to ask the judge to continue the case to allow USCIS to adjudicate the I-130 visa petition. See Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).

Chapter 9

Note, USCIS has exclusive jurisdiction over the adjudications of Form I-130s. This means that the IJ cannot adjudicate the adjustment application unless and until the USCIS makes a decision on the I-130. If an I-130 has previously been denied, and the applicant’s relative is re-filing, judges might require additional evidence or an argument to continue the case. Example: Nora is in removal proceedings after an interview on her I-130 and adjustment of status, Form I-485, based on married. Both her adjustment and the visa petition filed by Joko was denied. Joko filed a new I-130 on behalf of Nora, and the couple maintains that their marriage is valid. Some judges will require extra argument to continue a case to await adjudication of a second petition, where the first was already denied by USCIS. In these cases, it is good to have good evidence of the bona fides of the marriage and reasons why continuation is appropriate. Presenting this evidence in support of any motion to continue is a good idea. Aside from needing USCIS approval of a visa petition, your client might be seeking a U visa, SJIS petitions, or DACA. While the court would traditionally close or continue a case while a U visa application was pending, practitioners report that OCC is now opposing such requests. The government argues that a U visa can be obtained while outside the country, and thus delaying proceedings is unnecessary.

9-10

Tab Position 1

Immigrant Legal Resource Center June 2017

PRACTICE TIP: While ICE counsel might oppose a motion to continue or a motion to administratively close, the decision rests with the immigration judge. Practitioners should still make motions over ICE counsel objections. Best practice is to respond in writing to any oppositions filed with the court, citing authority and facts to support the reasons for your initial request. B.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Joint Motions to Terminate for Adjustment of Status

While the IJ has jurisdiction over adjustment of status as discussed above, there is also the possibility of asking the court to terminate proceedings so that the applicant may pursue the application in front of USCIS instead of removal proceedings. Many immigration judges like this option because it clears their dockets. Example: Mary is in removal proceedings after overstaying on a visitor visa. Mary indicates at her master calendar hearing that she is married to a United States Citizen and they are filing paperwork to adjust her status. She has no criminal history, and appears eligible to adjust. The judge asks Mary if she will be requesting of ICE and filing a joint motion to terminate proceedings. While asking OCC to join in such motions was fairly routine, it is now uncertain whether this practice of joint motions will continue. Check in with local practice in your area to learn whether OCC will still entertain such motions. Nonetheless, asking for opposing counsel’s position on motions is part of motions practice. It rarely hurts to reach out in such cases to ask opposing counsel what options they would consider. A noncitizen also may request termination to pursue VAWA, DACA, U visa, naturalization, a provisional unlawful presence waiver, or adjustment of status. While some of these options may be pursued while in removal proceedings, other applications, such as naturalization, may only be pursued if removal proceedings are terminated. C.

Continuances in Other Cases

D.

Administrative Closure

Administrative closure was a very widely used tool to exercise prosecutorial discretion under the Obama administration. An administratively closed case remains on the court’s docket, but is taken off the court’s calendar or active docket. Activity on the case is suspended, but the case may be re-calendared by motion of either party. In order to control the immigration court dockets, government agencies were instructed to consider prosecutorial discretion factors to close cases that were not a high enforcement priority. See § 9.7 below. While this broader practice is no longer policy, asking for administrative closure in cases where you are awaiting a decision in an underlying petition; waiting for adjudication of a provisional waiver; or waiting for a priority date to become current is still viable. While OCC might oppose any such request, remember that the

9-11

Chapter 9

Judges will often entertain a motion to continue when the applicant is pursuing relief from USCIS or ICE. For example, if your client is applying for DACA or a U visa, you will ask the court to continue the case to await a decision from USCIS. Generally, courts will not continue a case for collateral cases, such as expungements in criminal court.

decision whether to administratively close the case lies with the court. 19 From the judge’s perspective, closing a case helps manage her caseload. Folks awaiting U visa adjudications, DACA requests, VAWA, etc. should still consider motions for administrative closure. Because the case remains pending with the court, consider carefully when administrative closure is in the best interest of your client. First, Administrative closure is not sufficient to allow someone to pursue naturalization or an adjustment before USCIS because jurisdiction is still vested with the court. 20 Second, consider filing any applications with the court before administrative closure, especially in cases where a filed application may give rise to work authorization. For instance, filing a cancellation of removal application when applicable, prior to a motion for administrative closure, means that your client will still be able to apply for work authorization while the case remains closed. PRACTICE TIP: Practitioners report that OCC is filing motions to re-calendar some administratively close cases. These motions can be opposed! If you receive such a motion in a case, file a time opposition to the government’s motion, citing the reasons the case should remain closed. § 9.5 A.

Filing Applications and Documents

Complying with Biometrics Collection

Chapter 9

If the applicant is filing a new application with the immigration court, she will need to follow the biometric instructions for filing, which will be provided at a master calendar hearing when the client states relief. Counsel for DHS will serve the biometric instructions sheet on the respondent. To comply with biometrics, the application will need filed with the appropriate service center with all necessary fees. See Appendix O for an example. Then, to meet the filing deadline provided by the immigration judge, the applicant must file the application and proof of paying fees with the court. All filings require proof of service on opposing counsel, which means a copy must be filed with the Office of Chief Counsel at the same time. Unless the judge requires all supporting documents at time of filing the application, usually just the application must be filed be the initial deadline set by the judge. All supporting materials are usually due prior to the individual hearing. The deadline set by regulation is 15 days, but judges may set an earlier deadline. (Nonetheless, any material evidence should be submitted, even obtained after the deadline for evidence set by the court. Counsel should include a short motion or argument to support the late filing.) PRACTICE TIP: Proof of Service. Don’t forget that a copy of everything you file with the court must be provided to opposing counsel. When filing with the court, one certifies that she has done so by signing a proof of service, which indicates that a copy was mailed or handed in person to the opposing party. In removal cases, this requires providing a copy of anything filed with the 19

Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Arriving aliens may still pursue an adjustment, because jurisdiction for adjustment remains vested with USCIS. In all other cases, a removal case must be terminated in order for USCIS to exercise jurisdiction over the adjustment application.

20

9-12

Tab Position 1

Immigrant Legal Resource Center June 2017

court to the Office of Chief Counsel for ICE in your area. If you are unsure of the address, you can call OCC or the court in which the client is scheduled to appear and they will usually help you. B.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Fee Waivers

Some applications are eligible for fee waivers. When an application for relief requires a fee, the fee for that application is paid to the Department of Homeland Security, not the court. Although DHS accepts the fees, the judge has jurisdiction to determine whether an applicant should be granted a fee waiver. If an applicant is unable to pay the fee, the proper means to request a waiver of the fee is by filing a motion with the court, with an affidavit or unsworn declaration made pursuant to 28 USC 1746, which demonstrates the applicant’s inability to pay. This is distinct from the process of filing Form I-912 with USCIS. The immigration judge has discretion to waive the fee upon a showing that the applicant is unable to pay. However, the court will not grant a fee waiver where the application for relief is a Department of Homeland Security form, and DHS regulations prohibit the waiving of such fee. See 8 CFR § 1103.7. C.

Referred Applications

If an application has already been filed and denied by USCIS, the applicant can ask to renew that application before the judge. In so doing, the applicant will not need to repay fees, and may proceed on the prior filing. Once in court, USCIS can be required to submit the copy of the application, but the judge usually will ask the applicant to turn in supporting materials. (One can argue that USCIS must turn over the record that was before the agency, including all supporting documents. Often, it is in the best interest of the client to turn in a new thorough packet that is easy for the judge to follow. However, sometimes new counsel will not have all the documents that were previously submitted.) D.

Complying with the Court’s Rules and Procedure

PRACTICE TIP: If you are new to immigration court practice, start by reviewing the Immigration Court Practice Manual. This manual provides great information on court procedure, including needling basics—like how to tab your submissions, what to include in various motions, and general court practice.

9-13

Chapter 9

In 2006, the Executive Office for Immigration Review created an Immigration Court Practice Manual to standardize procedure and practice throughout the immigration courts. This should be any practitioner’s go-to resource for confirming procedure in removal proceedings. The Immigration Court Practice Manual can be found at www.usdoj.gov/eoir and all updates are contained in this online version of the document. In this manual, you will find court templates, information on motions, filing deadlines and various procedures. It is important to check back regularly to ensure compliance with court rules.

§ 9.6 A.

Voluntary Departure

Introduction

Voluntary departure allows a person a period of time in which to leave the U.S. without an order of removal. Voluntary departure is a form of relief in deportation and removal proceedings. It is authorized by INA § 240B. People who leave the U.S. under an order of voluntary departure do not have a removal order on their records. This is significant because people who have been removed are inadmissible for five or ten years under § 212(a)(9)(A) and can be prosecuted for a felony if they return to the U.S. without permission. Nonetheless, ICE may impose any condition necessary to ensure that an individual leaves the U.S. upon a grant of voluntary departure. Such conditions can include the posting of a bond, continued detention pending removal and other removal under safeguards. People who apply for other relief such as asylum may also want to apply for voluntary departure. That way, if the immigration judge denies the preferred relief, the person may be able to leave voluntarily and not be removed. However, there are reasons why some applicants might not want to ask for voluntary departure.

Chapter 9

The judge cannot give extensions of the period of voluntary departure; those requests must go to ICE. 8 CFR § 1240.26(f). “In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in § 240B of the Act.” 8 CFR 1240.26(f), [italics added]. Furthermore, no court has the jurisdiction to hear an appeal regarding the denial of voluntary departure requested at the conclusion of removal proceedings. See INA § 240B(f). Additionally, once a person has been granted voluntary departure, she must present a passport or other valid travel documentation to ICE within 60 days unless exempted. See 8 CFR § 240.25(b) and 8 CFR § 1240.25, § 1240.26. There are three forms of voluntary departure, each with its own rules. First, voluntary departure may be granted by the Attorney General prior to the beginning of removal proceedings. The person must waive the right to a removal hearing and agree to leave at his or her own expense. The total amount of time that may be granted is 120 days, including all extensions. Only certain DHS officials are authorized to grant this kind of voluntary departure and the decision will be communicated in writing on Form I-210 Notice of Action—Voluntary Departure. See INA § 240B(a) and 8 CFR § 240.25. Second, the immigration judge may grant voluntary departure if the person requests it prior to or at the master calendar hearing or a continued master calendar hearing. The person must ask only for voluntary departure and no other relief and must also concede removability, waive appeal of all issues, and withdraw any additional requests for relief if they had been made. People with aggravated felonies and people who are deportable under certain security provisions, including espionage, terrorist activity, and Nazi persecution, are not eligible for this form of voluntary departure. No showing of good moral character or the financial means to depart is required. The total amount of time that may be granted is 120 days. Conditions may be imposed by the judge to ensure that the person timely departs from the U.S. These conditions may include the posting of a voluntary departure bond. See INA § 240B(a) and 8 CFR § 1240.26(b)(1)(i)(A). The third kind of voluntary departure may be granted by an immigration judge at the conclusion of removal proceedings. To be eligible for this third form of voluntary departure, the person

9-14

Tab Position 1

Immigrant Legal Resource Center June 2017

must have been physically present in the United States for at least one year prior to service of the NTA, must show good moral character for at least five years preceding the application, must show by clear and convincing evidence that he or she has the financial means to depart and that he or she intends to do so. To prove by clear and convincing evidence that one has the means to depart, the voluntary departure applicant must show travel documentation sufficient to allow his or her entry into the destination country. The person is also required to post a voluntary departure bond. A person with aggravated felony convictions or security provision violations is not eligible for this form of voluntary departure, nor is someone who was previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A) in removal proceedings. The total amount of time that may be granted is only 60 days, including all extensions (if a judge grants only 30 days, ICE can grant a 30-day extension, but no more than that). See INA § 240B(b) and 8 CFR § 1240.26(c).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

In summary, when voluntary departure is granted prior to the completion of removal proceedings, the immigration judge may grant a time period of up to 120 days. When voluntary departure is granted at the conclusion of proceedings, the maximum time granted is 60 days. If someone is granted voluntary departure but fails to voluntarily depart during the specified time period, that individual will be ineligible for voluntary departure for ten years, and may be subject to a fine of between $1000 and $5000. (If an individual is unaware of the voluntary departure order or physically unable to depart within the time granted, the individual is not deemed to have failed to voluntarily depart.) If an individual fails to depart prior to the expiration of the voluntary departure period, the individual’s subsequent departure may be deemed a “removal.” (U.S. v. Carrasco-Abreu, Eastern District of New York, Jan. 25, 2008, WL 216923.) Example: Umberto is a 19-year-old man from El Salvador, who entered without inspection 18 months ago in order to work in the fields. He has no other job skills. Umberto has no family in the U.S. He does not fear returning to El Salvador and has never applied for asylum. ICE stopped and questioned Umberto. Umberto admitted that he was an alien and had no legal status, and so he was arrested. He was placed in removal proceedings. Voluntary departure appears to be the only form of relief for which he may qualify. B.

Eligibility Requirements

If the person requests voluntary departure before the initiation or the completion of removal proceedings, he or she may be granted a period of up to 120 days of voluntary departure. The person must depart at her own expense. See INA § 240B(a)(1). ICE decides whether to grant voluntary departure. See INA § 240B(a)(2) and 8 CFR § 240.26. ICE may require the person to post a bond, which will be reimbursed when the person provides proof that she has departed from the U.S. within the time specified. See INA § 240B(a)(3). ICE has authority to grant voluntary departure instead of commencing removal proceedings against the alien. See 8 CFR § 240.25(a). ICE may attach to the granting of voluntary departure “any conditions it deems necessary to ensure the [person’s] timely departure, including the posting of a bond, continued detention pending departure, and removal under safeguards.” See 8 CFR § 240.25(b). The regulations allow ICE to revoke a grant of voluntary departure if it

9-15

Chapter 9

1. Before removal proceedings or prior to the completion of removal proceedings

determines that the application should not have been granted. ICE does not have to notify the applicant before revocation but must notify the applicant in writing of the revocation, from which there is no appeal. See 8 CFR § 240.25(f). However, if ICE does revoke voluntary departure, which it granted prior to the commencement of proceedings, the alien should be able to request voluntary departure in removal proceedings. Once ICE has initiated removal proceedings, the immigration judge has the authority to grant voluntary departure. See 8 CFR § 1240.26. The BIA confirmed the statutory provisions that persons applying for voluntary departure either before proceedings commence or prior to the conclusion of the removal hearing need not establish good moral character or the financial ability to depart. Matter of Arguelles, 22 I&N Dec. 811, (BIA 1999). 2. Disqualifications for voluntary departure prior to the completion of the hearing A person will be disqualified from this form of voluntary departure for the following reasons: • •

He or she is deportable for an aggravated felony under INA § 237(a)(2)(A)(iii) or for “terrorist activities” under INA § 237(a)(4)(B); or He or she was previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A).

The regulations state that the immigration judge may only grant this more generous form of voluntary departure pursuant to INA § 240B(a) if the alien makes the request prior to or at the master calendar hearing at which the case is initially scheduled for a merits hearing. See 8 CFR § 1240.26(b)(1)(i)(A). The alien also must make no additional requests for relief and withdraw any pending requests, concede removability, and waive appeal on all issues. See 8 CFR § 1240.26(b)(1)(i)(B-D). 3. Requirements for voluntary departure at the conclusion of removal proceedings To be granted voluntary departure, the applicant must demonstrate pursuant to INA § 240(B)(1) that he:

Chapter 9

• • • •

has the financial means to depart and intends to do so; has been a person of “good moral character” for the five years prior to the date of the application for voluntary departure; has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served; is not removable under INA §§ 237 (a)(2)(iii) [aggravated felony] or 237(a)(4) [security & related grounds].

PRACTICE TIP: Good Moral Character. Persons described in INA § 101(f) are statutorily barred from establishing good moral character. The immigration judge (IJ) may decide that persons who are not statutorily barred have still not demonstrated good moral character. The immigration judge is limited to granting voluntary departure for only up to 60 days at the conclusion of proceedings. See INA § 240B(b)(2). The immigration judge must set a bond of at least $500. See INA § 240B(b)(3) and 8 CFR § 1240.26(c)(3). The bond must be posted within five business days of the immigration judge’s order. If the bond is not posted within this time

9-16

Tab Position 1

Immigrant Legal Resource Center June 2017

period, the voluntary departure order vacates automatically and becomes a removal order. See 8 CFR § 1240.26(c)(3). The immigration judge may impose other conditions that “he or she deems necessary to ensure the alien’s timely departure” from the U.S. See 8 CFR § 1240.26(c)(3).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

4. Disqualifications for voluntary departure at the conclusion of the hearing A person will be disqualified from this form of voluntary departure for the following reasons: • • • •

INA 101(f) bars her from proving good moral character. She is deportable for an aggravated felony under INA § 237(a)(2)(A)(iii) or for “security and related grounds” under INA § 237(a)(4). She was previously granted voluntary departure after having been found inadmissible under INA § 212(a)(6)(A). She was granted voluntary departure and failed to depart in the specified time frame; consequently, she is ineligible for voluntary departure for 10 years under INA § 240B(d).

As discussed in Subsection 2, above, an aggravated felony conviction (except murder) that occurred before November 29, 1990 does not make a person deportable under the aggravated felony deportation ground. Arguably a person convicted of an aggravated felony before November 29, 1990 would be eligible for post-hearing voluntary departure, if he or she had maintained good moral character for the last five years. 5. Civil penalties for failure to depart There are penalties for failing to depart under voluntary departure. A noncitizen that fails to depart on time is ineligible for many forms of immigration relief for ten years including cancellation of removal, adjustment of status, change of status, and applying for benefits under the registry program. Moreover, noncitizens who do not leave under a grant of voluntary departure are subject to civil fines ranging from $1,000 to $5,000. See INA § 240B(d). Under 8 CFR § 1240.26(j), the civil penalty for failing to depart within the allotted time is presumptively set at $3,000, although the presumption is rebuttable. The INA also requires that notice of these penalties be provided upon a grant of voluntary departure. § 240B(d)(3).

9-17

Chapter 9

What Happens to Voluntary Departure if Applicant Fails to Post Bond? In 2006, the BIA addressed whether failure to post a bond under voluntary departure triggered the penalties listed in the previous section. The court ruled that the posting of a bond was “a condition precedent to permission to depart voluntarily.” Matter of Diaz-Ruacho, 24 I&N Dec. 47, 47 (BIA 2006). The court reasoned that failure to post a bond vacates a granting of voluntary departure, preventing attachment of the civil penalties. Revisions to the regulations then went into effect in 2009 countering the BIA’s position, indicating that an alien’s obligation to depart within the allowed time holds regardless of a failure to timely post the bond subjecting him to the civil penalties. See 8 CFR § 1240.26(c)(4). In 2011, the 7th Circuit ruled that the 2009 regulations reversed the DiazRuacho decision. Bachynskyy v. Holder, 668 F.3d 412, (7th Cir. 2011). Thus, under current law, if the applicant fails to post the bond, the penalties for failing to comply with voluntary departure attach.

6. Conversion to a removal order if applicant appeals to the court of appeals or files a motion to reopen The revised regulations also make clear that a grant of voluntary departure is automatically withdrawn upon the filing of a motion to reopen or reconsider with the immigration judge or the BIA, or upon filing a petition for review in a federal court of appeals. A narrow exception applies if the applicant departs within 30 days of filing the petition for review and submits proof of having departed. WARNING! Avoid Self-Removal. The grant of voluntary departure from the judge will state a date by which the person must depart the U.S. If the person overstays that date and then leaves the U.S., even if voluntarily and even if she leaves one day beyond the date, she will have “selfremoved,” not “departed voluntarily,” and a removal order will result on that person’s record. Example: Bhawani Singh entered the U.S. from India as a student three years ago. He dropped out of school last year and opened a restaurant. ICE in a raid on the restaurant arrested him. Bhawani had an immigration hearing on February 20 and the judge gave him 30 days voluntary departure. He qualified for no other relief. Bhawani planned to leave on March 17th, but his flight was canceled and not rescheduled until March 25th. He left on March 25th, three days after the date on which he was ordered to voluntarily depart the U.S. by the judge. Bhawani now has a removal order on his record. He was “self-removed” when he left the country more than 30 days after the date the judge ordered him to leave. He is also subject to civil penalties and a bar to admission for failure to leave under voluntary departure.

Chapter 9

Persons who wish to apply other relief may apply only for the third type of voluntary departure, which is granted at the conclusion of the removal proceedings. In this situation the person (or through his counsel) will inform the immigration judge that he is seeking voluntary departure pursuant to § 240B(b) in the alternative, after stating which other forms of relief for which the person is applying. Example: Umberto is a 19-year-old man from El Salvador, who entered without inspection 18 months ago in order to flee the conditions in his country. He is afraid to return to El Salvador. In El Salvador he was imprisoned several times due to his political beliefs and fears future persecution. Umberto does not want to accept the first type of voluntary departure and wants to pursue an asylum claim. His attorney suggests that he apply for asylum and in the alternative voluntary departure. However, the attorney cautions him that if the court denies his asylum application, he might not qualify for the tougher third type of voluntary departure. Based on his time in the U.S., he meets the physical presence requirement for voluntary departure at the conclusion of proceedings. Umberto agrees with his legal practitioner’s advice. At his master calendar hearing, the attorney informs the judge on the record that “Umberto Gomez wishes to apply for asylum, and in the alternative, voluntary departure pursuant to § 240B(b).”

9-18

Tab Position 1

Immigrant Legal Resource Center June 2017

If Umberto were not requesting any other form of relief (i.e., asylum), it would be in his interest to obtain voluntary departure prior to the conclusion of the removal proceedings because: 1) there is no mandatory bond; and 2) he can be granted voluntary departure for a longer period of time.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A person, such as Umberto in the previous example, with the advice of his legal practitioner should make this decision at the time of the master calendar hearing. The regulations require the alien to request this form of voluntary departure prior to or at the master calendar hearing “at which the case is initially scheduled for a merits hearing.” See 8 CFR § 1240.26(b)(A). The regulations further provide that the “judge may not grant voluntary departure under § 240B(a) of the Act beyond 30 days after the master calendar hearing at which the case is initially scheduled for a merits hearing except pursuant to a stipulation with the ICE trial attorney.” See 8 CFR § 1240.26(b)(1)(ii). STRATEGY TIP: If a person files a motion to reopen or appeals the case to a Court of Appeals, the voluntary departure will be terminated and convert to a removal order. The amount of money the applicant paid in bond is not returned. In certain cases, voluntary departure might not be worth it for your clients. Carefully evaluate the penalties and benefits with the client before making a decision about whether to ask for voluntary departure in the alternative. § 9.7 A.

Prosecutorial Discretion

Introduction

A prosecutorial discretion request could be to ask ICE not to issue an NTA in the first place. However, once a person has been placed in removal proceedings, a typical request is to ask ICE to agree to administratively close the removal proceedings, and in some cases to terminate proceedings. A prosecutorial discretion request is a request directed to ICE counsel, the agency bringing proceedings against your client. Aside from the ability to administratively close a case without the government’s consent, the judge is not making prosecutorial discretion decisions— 21

John Morton, Assistant Secretary, ICE, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” (June 17, 2011).

9-19

Chapter 9

In the immigration context, when an agency favorably exercises prosecutorial discretion, “it essentially decides not to assert the full scope of [enforcement] authority available to the agency in a given case.” 21 In immigration cases, prosecutorial discretion primarily is exercised with respect to removal proceedings (including the decision whether to place a person in proceedings), detention, parole, and the execution of removal orders. Deferred Action and the new Deferred Action for Childhood Arrivals are also forms of prosecutorial discretion. It is important to remember, that someone who might not meet the specific criteria for DACA eligibility might have good equities to ask for prosecutorial discretion in a different form—such as the closing of removal proceedings. For instance, a young person in removal proceedings might not have the continuous residence required for DACA, but has no criminal history. Or, should DHS end the DACA program, these folks should still strenuously advocate for prosecutorial discretion in their cases.

prosecutorial discretion is the discretion of ICE to choose what action to take in your client’s case. ICE will consider each request individually, but will rely on agency guidance. Current guidance is to stop the practice of routine administrative closures pursuant to the Obama’s administration’s directives. While all prior prosecutorial memoranda have been rescinded, 22 the concept of prosecutorial discretion still exists. OCC should still be approached to consider administrative closure where strong relief options with USCIS are apparent. Representatives should continue to consider all favorable factors in a case, and consider how to address any concerns raised by the new enforcement priorities. B.

Factors to Influence Prosecutorial Discretion

The factors that will influence a decision on prosecutorial discretion will vary according to the nature of the case. However, there are some general guidelines about important factors that the agency will consider in most, if not all cases. While the 2011 memo on prosecutorial discretion is no longer in effect, the list of equities remains important for evaluating a case for prosecutorial discretion. This list of factors, taken from the June 17, 2011 memorandum, Morton, “Exercising Prosecutorial Discretion,” at 4, includes: • •

Chapter 9

• • • • • • • • • • • • • • •

The agency’s civil immigration enforcement priorities; The person’s length of presence in the U.S., with particular consideration to presence in lawful status; The circumstances of the individual’s arrival, particularly if arrival was as a young child; Graduation from a U.S. high school and the pursuit of higher education in the U.S.; U.S. military service of the individual or immediate relative, particularly combat service; Criminal history; Immigration history; Whether the person is a national security or public safety concern; Ties and contributions to the community, including family ties; Ties to and conditions in the home country; Whether the person is elderly or a minor; Whether a spouse, parent or child is a U.S. citizen or permanent resident; Whether the person is the primary caretaker of any person with a disability or illness or a minor relative; Whether the person or a spouse is pregnant or nursing, or suffers from a severe mental or physical illness; Likelihood of removal; Likelihood of permanent or temporary immigration relief; and Cooperation with federal, state, or local law enforcement (including the Department of Labor and the National Labor Relations Board).

The 2011 Morton memos also identify certain classes or individuals warranting “particular care.” These include veterans and members of the U.S. armed forces, long-time permanent residents, minors and the elderly, those present in the U.S. since childhood, pregnant and nursing women,

22

Morton memo, see Appendix J.

9-20

Tab Position 1

Immigrant Legal Resource Center June 2017

victims of domestic violence, trafficking, or other serious crimes, and those with serious health conditions or disabilities. There is no specific form to request prosecutorial discretion. A request for prosecutorial discretion is not made with the judge, but to the Office of Chief Counsel, who has the power to choose whether or not to prosecute a case. Nonetheless, an immigration judge has the power to administratively close a case without consent of ICE counsel. While in the past, ICE OCC offices had dedicated email addresses to entertain prosecutorial discretion requests, most offices report that they are no longer accepting requests in this way. Instead, requests are only considered on a case-by-case basis by the Chief Counsel. Trial attorneys in court have been directed to not make frontline decisions on prosecutorial discretion requests. Check with local practice, and ask opposing counsel the best way to submit a request in your jurisdiction. Nonetheless, it is often helpful to submit a copy to the judge so that the court is apprised of the equities in your case and understands that such a request has been made of opposing counsel. This information might also suede a judge to consider administrative closure in cases where ICE fails to exercise prosecutorial discretion. When submitting a written request to the ICE attorney and the court, include supporting documents to show that your client deserves a favorable exercise of discretion. Sample requests are included at Appendix V. § 9.8

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Deferred Action for Childhood Arrivals

Deferred action protects youth from being removed if they are currently in proceedings, and allows for administrative closure of proceedings and possibly termination. It provides an employment authorization document that allows the youth to work, a Social Security Number, and in certain states, a DACA-recipient can apply for a state identification card and a driver license. DACA is for two years, but as of now, can be renewed after the two years. Although DACA defers removal and allows the recipient to work legally in the United States, it does not grant any type of lawful status.

Eligibility Requirements 23

A.

An applicant can request DACA if he or she: •

Is at least 15 years old at the time of filing his or her request. o

Exception: a youth that is currently in removal proceedings or has a final order of removal, or a voluntary departure order can request DACA under the age of 15.

23

For more detailed information, see www.ilrc.org/info-on-immigration-law/deferred-action-for-childhoodarrivals and DACA: The Essential Legal Guide, which can be purchased on our website at

9-21

Chapter 9

While the fate of DACA remains unclear in the current political climate, USCIS continues to process requests for DACA. However, DACA might end at any time. Check back frequently to determine if this is a viable option for your clients. For those that are already in removal proceedings, there is no additional risk to trying for DACA if the program is still in effect. For those that are not currently in removal proceedings, applicants should be advised that applying for DACA as a new applicant brings them to the attention of immigration authorities. See www.ilrc.org for updates.

•

Was under the age of 31 as of June 15, 2012;

•

Came to the United States before his or her 16th birthday; o

However, if the youth has entered and left the United States before age 16, he or she will have to show established residency in the U.S. before age 16.

•

Has continuously resided in the United States since June 15, 2007, up to the present time;

•

Was physically present in the United States on June 15, 2012, and at the time of making his or her request for DACA;

•

Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012 (i.e., person was undocumented as of June 15, 2012);

•

Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and

•

Has not been convicted (as an adult) of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety. Automatic Bars to DACA 24

B.

An individual is not eligible for DACA, if he or she: •

Has been convicted of a felony, o

•

Significant misdemeanor, o

Chapter 9

a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year

A misdemeanor for which the maximum term of imprisonment authorized is greater than five days but one year or less AND: 

Is an offense for which the individual was sentence to time in custody of more than 90 days; or



Regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence

www.ilrc.org/publications. USCIS has established a special link which includes all the requirements and information: www.uscis.gov/childhoodarrivals. 24 For more information on the criminal bars, please see our chart at www.ilrc.org/resources/daca-criminalbars-chart.

9-22

Tab Position 1

Immigrant Legal Resource Center June 2017

•

Three or more other misdemeanors, o

•

A misdemeanor (maximum term is greater than five days, but one year or less) AND 

Is an offense for which the individual was sentenced to time in custody of 90 days or less; and



Is not one of the enumerated significant misdemeanor offenses (domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or, driving under the influence)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Or Otherwise pose a threat to national security or public safety o

USCIS will look at all criminal conduct, not just convictions to make this determination. Indicators that someone poses such a threat include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.

NOTE: To be eligible for DACA, an applicant does not have to prove they are admissible. The criminal bars to DACA are unique and should not be confused with the bars to other forms of relief. Exceptions to the Automatic Bars: • • • •

Juvenile Offenses and Adjudications Expunged Convictions Minor Traffic Offenses (e.g., driving without a license) Immigration-related offenses characterized as felonies or misdemeanors by state immigration laws

WARNING! Be careful when disclosing an applicant’s juvenile offenses and records in his or her DACA request. Many state laws, as well as federal law, have confidentiality provisions in place that sanction against the unauthorized disclosure of records. For more information and tips on how to adequately disclose juvenile offenses, please see our practice advisory available at: www.ilrc.org/resources/daca-and-juvenile-delinquency-adjudications-records-faqs.

25

For more information, see the NTA guidelines at www.uscis.gov/NTA.

9-23

Chapter 9

Certain cases that are denied and involve a criminal offense, fraud, threat to national security or public safety, or exceptional circumstances may possibly be placed immediately in removal proceedings. 25 However, since your client is already in removal proceedings and the risk of removal may already be imminent, we recommend requesting DACA for your applicant while the policy remains in effect. The applicant can request DACA, even if he or she is currently in removal proceedings or has a final order of removal.

Don’t Forget to Screen for Citizenship! The Fourteenth Amendment to the United States Constitution provides that anyone born in the United States and subject to the jurisdiction of the United States 26 is a U.S. citizen. People born in Puerto Rico, the Virgin Islands, or Guam are U.S. citizens at birth as well. Additionally, depending on when one was born, someone born in the Panama Canal Zone whose father or mother was a U.S. citizen is also a U.S. citizen and someone born in the Republic of Panama is a U.S. citizen if at least one parent was a U.S. citizen working for the Panama Railroad Company or the U.S. government. In addition to these birth possibilities and naturalization, people also can become citizens through acquisition and derivation of citizenship. A person who is or becomes a citizen through any of these means has all the rights of a U.S. citizen. Although many people confuse acquisition with derivation because they have some similarities, they are different ways of obtaining citizenship. The easiest way to differentiate between the two is that acquisition of citizenship occurs when a child born outside of the U.S. “acquires” citizenship at birth because of the citizenship status of one or both of her parents. Derivation of citizenship is when a child who is a lawful permanent resident “derives” or becomes a citizen because one or both of her parents is a citizen or becomes a citizen through the naturalization process. In either instance, someone could become a U.S. citizen without knowing it. In order to prove such citizenship, all that one needs to do is prove that the requirements for acquisition or derivation were satisfied. Eligibility Requirements: Five issues will affect whether a person born outside of the United States is a U.S. citizen. They are: 1. 2. 3. 4. 5.

whether the person’s parents were married when she was born; the person’s date of birth; whether one or both of the parents was a U.S. citizen when the person was born; how long the citizen parent resided in the U.S. prior to the person’s birth; and whether the person has satisfied requirements for residency in the U.S.

Chapter 9

In order to assess whether someone might have acquired citizenship at birth or derived citizenship before turning 18, please refer to ILRC’s charts on acquisition and derivation at www.ilrc.org/resources/naturalization-quick-reference-charts. Child Citizenship Act of 2000: The “Child Citizenship Act of 2000” significantly changed the rules for citizenship for certain children born outside the United States. Under the new rules, anyone who on after February 27, 2001 was or is under 18, unmarried, a lawful permanent resident, and who was or is in the legal and physical custody of at least one U.S citizen parent, is

26

INA § 301(a). The major exception to the rule that everyone born in the United States is a U.S. citizen applies to children born to high-ranking foreign diplomats while in the U.S. Because foreign diplomats are not subject to the jurisdiction of the United States, their children do not acquire citizenship when born here. Thus, unless someone born in the U.S. was the child of a foreign diplomat in the U.S., the child became a U.S. citizen at birth. However, under 8 CFR §§ 101.3(a)(1) and 101.3(c), the children of foreign diplomats may become lawful permanent residents upon birth in the U.S.

9-24

Tab Position 1

Immigrant Legal Resource Center June 2017

automatically a U.S. citizen. This is the case whether the lone U.S. citizen parent became a citizen by birth or through naturalization.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Please Note: Although illegitimate children can acquire citizenship at birth outside of the U.S. under certain circumstances, adopted and stepchildren can never acquire citizenship at birth outside of the U.S.

Chapter 9

9-25

Chapter 9

Tab Position 1

=

CHAPTER 10 INTRODUCTION TO NON-LPR CANCELLATION OF REMOVAL, FORMER SUSPENSION OF DEPORTATION, VAWA CANCELLATION OF REMOVAL, AND NACARA SUSPENSION AND CANCELLATION OF REMOVAL

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9 § 10.10 § 10.11 § 10.12 § 10.13 § 10.14 § 10.15 § 10.16 § 10.17 § 10.18 § 10.19 § 10.20 § 10.21 § 10.22 § 10.23 § 10.24 § 10.25

Overview of the Law ........................................................................................ 10-2 Introduction to Cancellation of Removal under INA § 240A(b)(1) (“Non-LPR Cancellation”) ............................................................................... 10-3 Continuous Physical Presence for Non-LPR Cancellation............................... 10-4 Good Moral Character and Criminal Bars in Non-LPR Cancellation ............ 10-11 Exceptional and Extremely Unusual Hardship for Non-LPR Cancellation ................................................................................... 10-21 Discretion ....................................................................................................... 10-27 Judicial Review .............................................................................................. 10-28 Introduction to Suspension of Deportation .................................................... 10-29 Continuous Physical Presence for Suspension of Deportation....................... 10-32 Good Moral Character for Suspension of Deportation................................... 10-34 Hardship for Suspension of Deportation ........................................................ 10-34 Introduction to VAWA Cancellation and Suspension.................................... 10-36 Establishing the Family Relationship for VAWA Cancellation and Suspension ............................................................................................... 10-39 Battery or Extreme Cruelty for VAWA Cancellation and Suspension .......... 10-41 Three Years of Continuous Physical Presence for VAWA Cancellation and Suspension .......................................................................... 10-43 Inadmissibility and Deportability Bars to VAWA Cancellation .................... 10-44 Good Moral Character for VAWA Cancellation............................................ 10-45 Extreme Hardship for VAWA Cancellation................................................... 10-46 VAWA Cancellation Compared with VAWA Self-Petitioning ..................... 10-48 Motions to Reopen in the VAWA Context .................................................... 10-49 Introduction to NACARA .............................................................................. 10-50 Continuous Physical Presence for NACARA ................................................ 10-53 Hardship for NACARA .................................................................................. 10-53 Good Moral Character for NACARA ............................................................ 10-54 NACARA Suspension and Cancellation for Those with Certain Crimes................................................................................................ 10-55

10-1

Chapter 10

One of the most common types of relief for noncitizens in removal proceedings is called “cancellation of removal.” Cancellation of removal for non-permanent residents is found in Immigration and Nationality Act (“INA”) § 240A(b)(1). Cancellation of removal replaced a type of relief called suspension of deportation. Although Congress replaced suspension of

deportation with this new form of relief, suspension of deportation might still be an option for some and relies on a different hardship standard. Congress also created a type of cancellation of removal specifically for certain victims of domestic violence. This type of cancellation of removal is found at INA § 240A(b)(2). A fourth type of cancellation of removal is for certain people from El Salvador, Guatemala and the former Soviet bloc countries under the Nicaraguan Adjustment and Central American Relief Act (NACARA) program. This chapter will go through the eligibility requirements for each of these forms of removal, including a discussion of the hardship requirement for each one. Apart from special rules for NACARA applications, cancellation of removal is a defensive application which can only be filed in immigration court, as a defense to removal. This chapter is divided into four parts: Part One discusses cancellation of removal for non-permanent residents [INA § 240A(b)] and the guidelines for eligibility. Part Two discusses the old suspension of deportation law (part of which still may apply in removal proceedings, at least in the Ninth Circuit and for persons with criminal convictions from before April 1997). Part Three discusses cancellation of removal and suspension of deportation for spouses and children who have been battered or victims of extreme cruelty. Part Four discusses cancellation of removal and suspension of deportation under NACARA. PART ONE: THE LAW OF NON-LPR CANCELLATION OF REMOVAL Gabriela Sanchez was picked up by the immigration authorities during a raid of her workplace last month. Gabriela entered the United States from her home country of Mexico without inspection in February 2001. She lives with her two U.S. citizen daughters, Juana, age 8, and Rosa, age 6. Her daughters rely on Gabriela for financial and emotional support. Gabriela now faces removal by ICE. If Gabriela is removed, she will have to make a difficult decision. She either will have to leave her daughters with friends in the United States, or she will have to take her children with her to Mexico—a country they have never been to. § 10.1 Overview of the Law

Chapter 10

Gabriela may qualify for a form of immigration relief called cancellation of removal for nonpermanent residents (“non-LPR cancellation”). Cancellation of removal allows some people in removal proceedings who have lived in the United States for a long time, and who can prove that certain relatives would suffer hardship if they were removed, to “cancel” their removal. People who are granted non-LPR cancellation of removal receive lawful permanent residency and can stay in the United States. Cancellation is a “defensive” application, meaning that one can only apply for this type of relief if facing removal in immigration court. This means that, unlike many other applications for a green card, or lawful permanent residency, a person cannot apply for cancellation of removal by affirmatively submitting an application to the U.S. Citizenship and Immigration Services

10-2

Tab Position 1

Immigrant Legal Resource Center June 2017

(USCIS). The immigration judge has the discretion to grant or deny an application for non-LPR cancellation. This means that the judge may deny the case even if the applicant meets all the other eligibility requirements.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Cancellation of removal is a one-time only remedy. Once someone is granted a form of cancellation, that person will not be able to receive cancellation of removal ever again, even if it is a different type of cancellation of removal. 1 The law of cancellation of removal for non-permanent residents is found in INA § 240A(b)(1). This law was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and took effect on April 1, 1997. § 10.2 Introduction to Cancellation of Removal under INA § 240A(b)(1) (“Non-LPR Cancellation”) A person qualifies for cancellation of removal under INA § 240A(b)(1) if she is in removal proceedings because she is inadmissible or deportable and meets the following criteria. Each of these requirements will be discussed in detail below: 1. she has been physically present in the United States continuously for at least ten years; 2. she has had good moral character for ten years; 3. she has not been convicted of certain offenses [crimes listed in INA §§ 212(a)(2), 237(a)(2), or 237(a)(3)]—see Chapters 3–5 for more information on these grounds of inadmissibility and deportability; and 4. to remove her would cause exceptional and extremely unusual hardship to her LPR or U.S. citizen spouse, child, or parent. 2 Under INA § 240A(c), non-LPR cancellation of removal is not available to the following people: a. people who already have received cancellation of removal, suspension of deportation, or INA § 212(c) relief. 3 b. people who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds. c. crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors (those who either received graduate medical education or failed to satisfy their two-year requirement). WARNING! It Is Risky to Place Your Client in Removal Proceedings in Order to Apply for Cancellation of Removal. It can be difficult to win a non-LPR cancellation case, especially because of the “exceptional and extremely unusual” hardship requirement. Practitioners should not take steps to place their clients in removal proceedings in order to apply for non-LPR cancellation—except in extremely strong cases. For the most part, practitioners should pursue

1

10-3

Chapter 10

See, e.g., INA § 240A(c)(6). INA § 240A(b)(1). 3 Relief pursuant to former INA § 212(c) is a cancellation-type remedy for lawful permanent residents. See Chapter 11. 2

cancellation of removal cases only when their clients are already in removal proceedings, as in the example of Gabriela Sanchez described at the beginning of this chapter. A.

Annual Cap on Cancellation of Removal Cases

The Executive Office for Immigration Review (“EOIR”) has interpreted the law to require that only 4,000 people can be granted suspension of deportation or non-LPR cancellation of removal each fiscal year. See INA § 240A(e). EOIR’s current policy is that the Office of the Chief Immigration Judge notifies the immigration courts once 3,500 cancellation cases have been granted in a given fiscal year. As of that date (known as the “cut-off date”), the immigration judges must reserve their decisions on all other suspension or cancellation cases, unless 1) the case can be denied on statutory grounds other than hardship or good moral character, or 2) the case can be denied because the person submitted an application for asylum or adjustment of status that was granted. 4 The remaining 500 spots will be allocated to the EOIR and Board of Immigration Appeals (BIA) throughout the remainder of the fiscal year. Then, the following fiscal year, EOIR will issue grants on a case-by-case basis to the remaining reserved decisions. EOIR has stated that it adjudicates those cases that the court has reserved on a first-in-time basis. 5 Put simply, the courts are essentially creating a waiting list for people who apply for suspension and cancellation once the spots are used up. B.

Adjustment of Status: Becoming a Lawful Permanent Resident

After the immigration judge grants cancellation of removal or suspension of deportation, the applicant “adjusts” her status and becomes a lawful permanent resident (“LPR”). Adjustment of status in a cancellation of removal case is quite different than adjustment of status pursuant to most other forms of immigration relief. The adjustment of status process for most pathways to LPR status requires that an adjustment applicant complete Form I-485 and show that she is not inadmissible. By contrast, someone who is granted cancellation of removal by the immigration judge is granted LPR status and does not need to file any further application. After the immigration judge grants the case, the immigrant will make a follow up appointment with USCIS to process her green card. § 10.3 Continuous Physical Presence for Non-LPR Cancellation To meet the first requirement for non-LPR cancellation for removal, the applicant must show that she has ten years of continuous physical presence in the United States. See INA § 240A(b)(1)(A). This brings up two important questions. First, when does the ten-year period end (i.e., what “stops the clock”)? Second, what effect do absences from the United States have? A.

The Ten-Year Clock Stops with Service of the Notice to Appear

Under INA § 240A(d)(1), the applicant must acquire ten years of continuous presence before the Notice to Appear (“NTA”) is served on her. An NTA is the charging document that initiates

Chapter 10

4

See EOIR, Procedures on Handling Applications for Suspension/Cancellation in Non-Detained Cases Once Numbers Are No Longer Available in a Fiscal Year (Feb. 2012), available at www.justice.gov/eoir/efoia/ocij/oppm12/12-01.pdf. 5 See id.

10-4

Tab Position 1

Immigrant Legal Resource Center June 2017

removal proceedings against a person. 6 In it, ICE must state why it believes the person is removable (indicating whether the person is deportable or inadmissible), and must give several warnings. See Chapter 7 for more information on the NTA. Once the applicant has been served an NTA, the clock “stops,” and she cannot count any more time in the United States towards the ten-year requirement.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Example: Jose Morales lived in the United States without leaving from January 2007 until the present. If Jose was served a Notice to Appear in removal proceedings in January 2016, he would not qualify for cancellation of removal, even if he is still currently in court proceedings. Although now he has lived in the United States for more than ten years, he only has nine years of continuous residence because the clock stopped when he was served the Notice to Appear in January 2016. PRACTICE TIP: If there is an argument that your client was not properly served a copy of the Notice to Appear, contest proper service of the Notice to Appear. In cases where you client is struggling to meet the 10-year continuous presence requirement for cancellation contesting service might make the difference of whether your client will qualify for relief nor not. See § 10.3.A.2 below. 1. Can the clock re-start after service of the notice to appear? The BIA and many courts have held that once a person has been served with a charging document, time is generally stopped for good. In other words, the “clock” cannot be restarted by an additional ten-year period after service of the charging document. 7 However, in Matter of Cisneros, 23 I&N Dec. 668 (BIA 2004), the BIA carved out an exception to this rule for people who were in deportation proceedings before IIRIRA. The BIA held that if a person was previously in deportation proceedings, which commenced by issuance of an Order to Show Cause, but the person is now in removal proceedings, commenced by issuance of a Notice to Appear, the Order to Show Cause in the previous proceeding did not stop the clock. In Matter of Cisneros, the person had been deported pre-IIRIRA, but later reentered without inspection and accumulated ten years of continuous physical presence before being apprehended by the Department of Homeland Security (“DHS”) and placed in removal proceedings. The BIA held that service of a charging document in a prior proceeding does not serve to end the period of continuous physical presence with respect to an application for cancellation of removal filed in the current removal proceeding. 8

6

The charging document for pre-IIRIRA deportation cases is called the “Order to Show Cause.” See Matter of Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000). See also circuit holdings: Ram v. INS, 243 F.3d 510, 517-18 (9th Cir. 2001); Najjar v. Ashcroft, 257 F.3d 1262, 1299-1300 (11th Cir. 2001); McBride v. INS, 238 F.3d 371, 377 (5th Cir. 2001); Afolayan v. INS, 219 F.3d 784, 789 (8th Cir. 2000). 8 23 I&N Dec. at 672. In a fractured opinion, the Third Circuit also held that someone who had a criminal conviction that stopped time for cancellation purposes but re-entered the United States legally thereafter, accrued a new period of physical presence for cancellation eligibility. Okeke v. Gonzales, 407 F.3d, 585 (3rd Cir. 2005). However, the Third Circuit has since declined to extend Okeke and held that a clock cannot 7

Chapter 10

10-5

People who left under an order of voluntary departure and later returned to the United States might benefit from this decision. Unfortunately, this case is of little help to those who returned to the United States unlawfully after a previous deportation or removal order. Most of those people are subject to reinstatement of removal under INA § 241(a)(5). As such, ICE will likely take steps to reinstate the prior removal order in lieu of initiating proceedings under INA 240. 9 Nonetheless, if ICE files an NTA with the court, jurisdiction vests with the court, and only the judge can make the decision to terminate removal proceedings. In that situation, the ICE attorney would have to move to terminate removal proceedings in order to pursue reinstatement of the prior order. If this happens, counsel for the immigrant should file an opposition to the government’s motion to terminate and argue that your client should be afforded a full hearing under INA 240. Such oppositions should include the legal explanation that jurisdiction has vested with the court, and positive equities for your client. 2. Was the notice to appear properly served?

Chapter 10

As a way to try to overcome the stop-time rule, advocates can argue that the NTA was not properly completed, executed, or served. These arguments, if successful, usually result in the client accepting service at the hearing, or the government reissuing a correct NTA. When the properly executed NTA is served, the accrual of continuous physical presence stops. The Third Circuit recently found that only an NTA that satisfies all of the requirements of 8 USC § 1229(g) (including the nature of proceedings, time and date of proceedings, among other things) will stop the clock. 10 In doing so, it disagreed with the BIA and many circuit courts, which have found that NTAs lacking certain pieces of information have still stopped the clock. 11 Furthermore, the First Circuit has held that the first NTA date of service stands to stop the clock, even where the original charges were replaced by amending the NTA. Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012). Thus, depending on the circuit and the facts, in some cases advocates may be able to argue that their clients were not properly served at the time ICE generated the NTA, such as when the client did not sign the proof of service and ICE cannot prove the document reached the client. In these cases, practitioners might have an argument that the clock did not stop. This is only helpful where the person could benefit from the additional time. 12

restart. See Nelson v. Attorney General of U.S., 685 F.3d 318 (3rd Cir. 2012) (finding that a re-entry subsequent to commission of a crime does not restart the continuous physical presence). 9 For more information on whether there are any exceptions to reinstatement of removal for your client, see Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006), and any other cases in your jurisdiction on reinstatement of removal. 10 Orozco-Valasquez v. Attn’y Gen., 817 F.3d 78 (3rd Cir. 2016). 11 See Moscoso v. Castellanos, 803 F.3d 1079 (9th Cir. 2015); Guaman-Yuqui v. Lynch, 786 F.3d 235, 23839 (2nd Cir. 2015); Urbina v. Holder, 745 F.3d 736, 739-40 (4th Cir. 2014); Gonzalez-Garcia v. Holder, 770 F.3d 431, 434 (6th Cir. 2014); Yi Di Wang v. Holder, 759 F.3d 670, 674 (7th Cir. 2014); Cheung v. Holder, 678 F.3d 66 (1st Cir. 2012); see also Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011). 12 In theory, this is also helpful in cases where the representative can successfully terminate proceedings because service of the charging document was improper. Having proceedings terminated and no further removal is a great outcome for your client. While this is possible in theory, it rarely plays out this way in practice. Often, once service is contested, ICE will re-serve the NTA, thereby overcoming any challenge and avoiding termination. Nonetheless, if your client benefits under the stop-time rule, this is a good result for your client.

10-6

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Continuous Physical Presence also Ends When the Immigrant Commits Certain Offenses

The ten-year physical presence “clock” also stops when the person commits certain criminal offenses. Under INA § 240A(d)(1), the ten years stop when the person commits an offense that is “referred to” in INA § 212(a)(2) and that makes the person inadmissible under INA § 212(a)(2) or deportable under INA § 237(a)(2) or INA § 237(a)(4) (grounds regarding crimes and terrorism). In practice, this stop-time rule affects cases for LPR cancellation more than non-LPR cancellation.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

For non-LPR cancellation, any crime that would stop the clock would also entirely bar the person from applying for INA § 240A(b) cancellation because it would come within the criminal bar of INA § 240A(b)(1)(C). If your client has criminal issues, it is best to first assess whether the crime bar applies. The criminal bars and good moral character are discussed in § 10.4 of this chapter. 1. Can the clock restart after commission of a clock-stopping offense? The BIA has held that once an event has stopped the clock, either the NTA or the commission of certain offenses, continuous presence is terminated and cannot be restarted. 13 The Third Circuit had previously held that when a person had a criminal conviction that stopped time for cancellation purposes but re-entered the United States legally thereafter, that person could accrue a new period of physical presence for cancellation eligibility. 14 The Third Circuit has since deferred to the BIA’s rule and found that a clock cannot be restarted. 15 C.

The Effect of Absences on Continuous Physical Presence

The continuous physical presence requirement does not mean the client must prove she has never left the United States. An applicant is barred from cancellation of removal only if any one absence during the ten-year period is more than 90 days, or if all her absences in the aggregate total more than 180 days. See INA § 240A(d)(2). Example: Yen has lived in the United States since 2005. She was recently picked up by immigration authorities and placed in removal proceedings. Since coming to the United States, Yen has left the United States several times. Four years ago, she left the United States for 75 days to care for her sick mother; two years ago she left for 80 days to visit family; and last year she left for 50 days. Although none of Yen’s absences individually were more than 90 days, together they totaled 205 days. Yen is ineligible for cancellation of removal because her absences total more than 180 days and therefore broke her continuous presence in the United States. Exception. One absence of 90 days or multiple absences that total more than 180 days in the aggregate will not constitute a break in continuous physical presence if the applicant:

Matter of Nelson, 25 I&N Dec. 410 (BIA 2011). Okeke v. Gonzales, 407 F.3d, 585 (3rd Cir. 2005). 15 Nelson v. Att’y Gen. of U.S., 685 F.3d 318 (3rd Cir. 2012). 14

10-7

Chapter 10

13

1. has served for at least 24 months in an active duty status in the U.S. Armed Services, and if she stopped serving, it was under honorable conditions; and 2. at the time of enlistment, she was in the United States. See INA § 240A(d)(3). 1. Absences or departures under threat of deportation Leaving the United States “under threat of deportation” will also interrupt continuous physical presence, regardless of how long the absence is. If the person has been ordered removed and then leaves the United States, even for just a few days, she will have interrupted her continuous physical presence. Leaving after a removal order breaks continuous physical presence even if the person did not know about the order, such as if the person never received her NTA and was ordered removed in absentia. Leaving after a removal order breaks continuous physical presence even if the person was ordered removed without a court hearing, such as with an expedited order of removal (which usually takes place at the border). Note that if someone has a prior removal order, that person is subject to reinstatement under INA § 241(a)(5) and is generally not entitled to another hearing. Additionally, leaving under voluntary departure in lieu of being removed by an immigration judge has also been found to interrupt the continuous physical presence necessary for cancellation of removal. 16 However, if the acceptance of voluntary departure was not “knowing and voluntary,” it might not break continuous physical presence. The BIA recently confirmed that a voluntary departure order does not break continuous physical presence if the person was not informed of her right to an immigration court hearing. 17 If the person did not really understand, or did not knowingly give up her right to a removal hearing, and agreed to depart voluntarily, then that departure does not necessarily interrupt her continuous physical presence in the United States. 18 If your client ever left the United States and upon return was turned away at the border by a border official, it is important to determine whether this incident constitutes a break in her continuous physical presence. The BIA ruled in Matter of Guadalupe Avilez-Nava, 23 I&N Dec. 799 (2005), that an immigration official’s refusal to admit an applicant at a land border port of entry will not constitute a break in the applicant’s continuous physical presence unless there is evidence that the applicant was formally excluded or ordered removed; was offered and accepted the opportunity to withdraw her application for admission; or was subjected to any other formal, documented process where the applicant was determined to be inadmissible to the United States. In Guadalupe Avilez-Nava, the applicant returned to Mexico for two weeks to provide support for her mother when her grandmother died. When she tried to cross the border back into the United States, an immigration official stopped her. The applicant admitted that she had no entry documents and was taken to a room where an official explained that she could not enter because she did not have documents. The applicant was then escorted to a door “back across the border,”

Chapter 10

16

See Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA 2002); Gutierrez v. Mukasey, 521 F.3d 1114 (9th Cir. 2008); Mireles-Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003). 17 Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015); Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015). 18 See Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006); Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005).

10-8

Tab Position 1

Immigrant Legal Resource Center June 2017

returned to Mexico, and entered illegally via the same port of entry in a vehicle two days later. According to the BIA, this did not amount to a voluntary departure under threat of deportation, which would have caused a break in the applicant’s continuous physical presence. Thus, a “turn around” or even multiple “turn-arounds” or “returns” without removal orders or formal decisions do not necessarily break continuous presence.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

If your client has left the United States at all, you should be on the lookout for any evidence that the return at the border was in fact a removal order or formal voluntary departure, or that the person formally withdrew her request to be admitted. Possible evidence from a border encounter could include affidavits or statements of the applicant or immigration officials, photographs, fingerprints, or other appropriate forms and official records of the DHS. However, as described above, if the evidence establishes only that the applicant was turned away at the border without an order or formal withdrawal of request to be admitted, the encounter will not cause a break in the applicant’s continuous physical presence. 19 WARNING! Be cautious about any border encounters your client had with immigration officials. Your client may have received an “expedited removal” or an administrative voluntary departure. A border official carries out the “expedited removal,” and the person never goes before an immigration judge. 20 Because there is no hearing in expedited removal, a client may not realize that she received an expedited removal order or an administrative voluntary departure. A voluntary departure order does not break continuous physical presence if the person was not informed of her right to an immigration court hearing. 21 An expedited removal order and, if the person was informed of her right to a hearing, an administrative voluntary departure likely ARE breaks in continuous physical presence. 22 D.

Documenting Continuous Physical Presence

The burden is on the cancellation of removal applicant to prove that she has had the requisite continuous physical presence. Fortunately, an applicant can use many different types of evidence to meet this burden. Usually a combination of testimony, affidavits, and documentary evidence will be sufficient to demonstrate continuous physical presence for the ten-year period. The client, her family, and the legal worker should gather as much concrete evidence as possible to show that the person has been in the United States continuously. This evidence could include: rent receipts; school records; dental or medical records; social security records if they exist; payroll records; letters from a landlord, priest, employer, co-worker, neighbor, or friend; telephone or utilities bills; church records; children’s birth certificates; marriage licenses; or many other documents. Documents are crucial to proving the ten years of continuous presence. Ideally you should have some proof for each month of each of the ten years. If your client has not kept records and cannot 19

10-9

Chapter 10

See also Valadez-Munoz v. Holder, 623 F.3d 1304, 1311 (9th Cir. 2010) (citing Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005)) (holding that the existence of a record of a turnaround at the border does not by itself constitute a break in continuous physical presence); Ortiz-Cornejo v. Gonzales, 499 F.3d 610 (8th Cir. 2005). 20 See Juarez-Ramos v. Gonzales, 485 F.3d 509 (9th Cir. 2007). 21 Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015); Matter of Garcia-Ramirez, 26 I&N Dec. 674 (BIA 2015). 22 See id.

find many documents, she must be prepared to explain to the judge why she does not have much proof of her presence in the United States. Ideally, even in a case with few documents, the client will present credible testimony and be able to present letters or testimony of friends and family to help verify that she has lived in the United States for the requisite period of time. The need for documentation is a good reason to encourage all potential clients to keep their records organized and in files. If your client does not have many documents, she can still apply for cancellation of removal if she can offer other types of evidentiary support instead, such as testimony. In such a case, the applicant should explain why further documentation is not available. The lack of documents will make her case less strong but will not preclude her from receiving relief. The Ninth Circuit ruled in Lopez-Alvarado v. Ashcroft, 381 F.3d 847 (9th Cir. 2004), that an applicant’s inability to establish continuous physical presence through documentary evidence was not necessarily fatal to her claim for cancellation of removal, depending on the circumstances. In that case, the applicant had limited documentary evidence available to establish her continuous physical presence because she had worked at home since being in the United States. The Ninth Circuit ruled that when a substantial number of individuals are willing to step forward and swear under oath that an undocumented immigrant has lived in the community for a particular period of time, the immigration judge cannot dismiss the collective weight of their declarations without a reasoned and persuasive explanation. Other circuits have ruled similarly. 23 In a recent unpublished case, the Second Circuit concluded that the logic underlying LopezAlvarado is no longer good law because the REAL ID Act, passed by Congress in 2005, stated that courts do not have to accept an applicant’s testimony as true in the absence of an explicit adverse credibility finding. 24 However, advocates should argue that the Second Circuit’s case is not binding on any circuit (including the Second Circuit because it is unpublished) and, furthermore, not on point because it is in the context of assessing a waiver of the requirements for removing conditions on residence.

Chapter 10

In proving continuous presence, different types of documents will carry different weight before the court. An immigration judge is likely to give more weight to official documents and letters signed under penalty of perjury by individuals with personal knowledge of the facts contained. An immigration judge is likely to find documents less reliable if there is no original version of the document available, if the document was created by an “interested” person (such as a relative or friend), if the individual who wrote a supporting letter is unavailable to testify, or if the document is not signed or dated. The varying degrees of weight given to these documents are largely governed by what we call the rules of evidence. Chapter 8 discusses the rules of evidence and what kinds of evidence can help your case the most. Review that section and always use the strongest type of proof you can. Note that if your documents include statements by other persons, the statements must be in the form of an affidavit or a declaration sworn under penalty of perjury, and must be detailed and show how the witness has personal knowledge of the facts that she is attesting to.

23 24

See, e.g., Gabriel v. Attn’y Gen., 384 F. App’x. 116 (3rd Cir. 2010). Antropova v. Holder, 553 F. App’x. 49 (2nd Cir. 2014).

10-10

Tab Position 1

Immigrant Legal Resource Center June 2017

A list of some types of documents you can use to prove all aspects of a cancellation of removal case (not just continuous physical presence) can be found in Appendix T.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 10.4 Good Moral Character and Criminal Bars in Non-LPR Cancellation A.

Introduction: Handling Criminal Cases

Criminal convictions can be fatal to a cancellation of removal case. It is therefore important to follow a few basic rules if your client has a criminal history. First, educate your client and get all the facts. We know that sometimes applicants do not share information about their criminal histories and other personal facts because they are embarrassed, do not think it is important, or do not know that they were actually convicted of a crime. Here, client education is absolutely critical. Warn your client that ICE will have her record of arrests and convictions, obtained through FBI and other background checks, which include checking the client’s fingerprints. You and the client need to have information that is at least as complete as what ICE has, so you should do an FBI records check as well. You should also request a criminal records check from your state’s department of justice (or the functional equivalent in your state). Sometimes convictions that do not appear in the FBI records do appear on the state records, and the immigration authorities often consult these state records as well. See Chapter 2 for more information about collecting records. Second, know your limits. When in doubt, refer it out! The law governing criminal convictions is complex and constantly changing, and the stakes to the client are very high. Unless you spend substantial time on crimes and immigration law and you feel confident of your expertise in this area, refer the case to an expert. To handle a case involving crimes competently, you must understand the substantive questions, such as which offenses currently can be characterized as “crimes involving moral turpitude.” You also must understand the “categorical approach,” which is the legal framework used by the courts to decide whether a state criminal statute meets the federal definition of a crime or ground of removal. This method also determines whether a particular conviction triggers a ground of removal when the criminal statute at issue covers multiple kinds of conduct. Caselaw on the categorical approach addresses in which scenarios the immigration judge may consult the details of an individual’s record of conviction and what documents may be consulted as part of that record of conviction. The law on the categorical approach is ever-evolving. For the latest caselaw, please consult our website at www.ilrc.org/crimes. If you conclude that you should not handle the case but cannot refer it out, bring in an advocate or consult with a resource center that has expertise in immigration and crimes to request a thorough review. It is important not to guess or make assumptions without research: Even a minor conviction might bar relief, and even a case that looks hopeless might turn out to have a solution. Violence Against Women Act (VAWA) Note: The following section on crimes applies only to non-LPR cancellation of removal. The criminal bars to VAWA cancellation (INA § 241(b)(2)) are somewhat different from the bars to the regular non-LPR cancellation. See discussion of VAWA at § 10.12.

Chapter 10

10-11

B.

Bar to Cancellation of Removal: Convicted of an Offense under the Crimes Grounds of Deportation and Inadmissibility

One of the requirements for non-LPR cancellation is that the applicant was not convicted of any offense listed in INA § 212(a)(2), INA § 237(a)(2), or INA § 237(a)(3). These include most of the criminal grounds of inadmissibility and deportability. See Chapter 5 for more information in general on these grounds of inadmissibility and deportability. 1. “Convicted of an offense under” versus “deportable or inadmissible under” the crimes grounds In order to understand the criminal bar to cancellation of removal, it is necessary to start with the language in the statute. A noncitizen is barred from applying if she has been “convicted of an offense under INA § 212(a)(2), INA § 237(a)(2), or INA § 237(a)(3).” INA § 240A(b)(1)(C). Section 212(a)(2) lists most of the crimes-based inadmissibility grounds; INA § 237(a)(2) lists most of the crimes-based deportability grounds; and INA § 237(a)(3) lists offenses related to document fraud. Notice the unusual language in this bar. Usually in immigration law we talk about someone being “deportable under” or “inadmissible under” certain grounds, rather than “convicted of an offense under” certain grounds. The Board has interpreted this language to mean a conviction for any offense described in any of these sections, regardless of whether the person faces charges of deportability or inadmissibility, will bar cancellation eligibility. The BIA has used this language to apply the bar to persons who are facing charges of inadmissibility in court, but have a conviction described in the criminal grounds of deportability. The grounds of deportation only apply to a person who has been “admitted.” See INA § 237(a). Therefore, a person who never was admitted—for example, who entered the United States without being inspected by a border agent—is not “deportable” under these grounds. However, the BIA’s reasoning is as follows: The cancellation of removal bar does not require the person to be “deportable” under INA § 237(a). It just says the person must be “convicted of an offense under” the deportation grounds. Based on this language, a person who entered without inspection is barred from cancellation of removal if he or she was convicted of a crime “described in” the deportation grounds. 25 This means that people are barred from applying for non-LPR cancellation of removal if they (a) entered without inspection (and are charged under INA § 212) AND (b) were convicted of an offense described in a deportation ground under INA § 237.

Chapter 10

Example: In 2001, Martin entered the United States, without inspection, by wading across the Rio Grande River. In 2016, he was convicted of an offense that is a “crime of domestic violence.” The government placed Martin in removal proceedings and charged him as inadmissible for having entered without proper documentation. Even though Martin is not “deportable under” the domestic violence deportation ground because he never has been admitted, he still will be found to be barred from non-LPR cancellation because he was convicted of an offense “described in” the deportation ground.

25

See Matter of Almanza, 24 I&N Dec. 771 (BIA 2009); see also Matter of Cortez, 25 I&N Dec. 301 (BIA 2010).

10-12

Tab Position 1

Immigrant Legal Resource Center June 2017

2. Which convictions will bar cancellation? A person who is convicted of any the following offenses described in INA § 212(a)(2), INA § 237(a)(2), or INA § 237(a)(3) will be barred from non-LPR cancellation: • • • • • • • • • • • • • • •

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

crime involving moral turpitude (there are some exceptions; see further discussion below); offense relating to controlled substances; two or more offenses that brought a total sentence imposed of five years or more; engaging in the business of being a prostitute; aggravated felony; high speed flight from an immigration checkpoint; firearms offense; crime of domestic violence; stalking; crime of child abuse, neglect or abandonment; or violation of certain portions of a domestic violence protection order (only for convictions on or after September 30, 1996); 26 espionage, treason, sedition, Selective Service Act or Trading with the Enemy violation; failure to register or document fraud under the listed federal acts; false claim to U.S. citizenship; failure to register as a sex offender under a federal law; entry/departure permit fraud; importation of immigrants for immoral purposes; or threats against the president and military expeditions against friendly nations. 3. A conviction is required

A person who is inadmissible or deportable for conduct under § 212(a)(2), INA § 237(a)(2), or INA § 237(a)(3), but has not been convicted of an offense in those sections, should not be barred from non-LPR cancellation under the “conviction” section. Thus a person who “engaged in” prostitution, or was a drug addict or abuser, or whom the government has “reason to believe” is a drug trafficker, is not barred under this provision as long as there is no conviction. It is important to note that when assessing whether the crime bar applies, like other immigration consequences of criminal convictions, an immigration judge can take into account a conviction for a crime even if that crime has been expunged. 27 In general, expungements do not eliminate criminal convictions for immigration purposes unless the conviction was vacated for legal error. 28 The exception is that in immigration proceedings that arise in Ninth Circuit states, an

26

10-13

Chapter 10

A conviction received before September 30, 1996 is not included in the deportation ground. See Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007). But note that some of these offenses also may be “crimes involving moral turpitude.” 27 See Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. 2003). 28 Matter of Roldan, 22 I&N Dec. 512 (BIA1999).

expungement might eliminate a single conviction for simple drug possession if the plea occurred before July 14, 2011. 29 While conduct without a criminal conviction will not bar someone from cancellation of removal under the bar for criminal convictions, the person also must establish good moral character for the last ten years. As discussed below, the good moral character bar includes some grounds of inadmissibility that do not require a conviction. Therefore, if the client became inadmissible for conduct within the last ten years, she still may be barred even without a conviction. See Subsection B of this section below. 4. Narrow exception for certain crimes involving moral turpitude Conviction of even one crime involving moral turpitude (“CIMT”) is a bar to non-LPR cancellation, with one exception. The exception applies if (a) the person has committed only one CIMT, (b) a sentence of six months or less was imposed, and (c) the offense carries a maximum possible sentence of less than one year. 30 This exception comes from looking at both the CIMT ground of inadmissibility AND the CIMT ground of deportability. A noncitizen applying for nonLPR cancellation must not have a conviction described in either the inadmissibility ground or the deportability ground. To avoid the CIMT inadmissibility ground, a crime that fits the petty offense exception would be sufficient. 31 The petty offense exception covers a single CIMT, with a maximum possible sentence of one year or less, and an actual sentence of six months or less. Unfortunately, to be eligible for cancellation of removal, the person must also avoid a CIMT as described in the deportability ground. The deportability ground describes a CIMT with a one-year sentence or more. Thus, combining both of these, the maximum possible sentence must be under one year (to avoid the deportability description) and the actual sentence must be six months or less (to fit within the petty offense exception for the inadmissibility ground). This is distinct from the petty offense exception: To avoid the crime bar for non-LPR cancellation of removal, the offense must have a potential sentence of less than one year while the petty offense exception includes an offense with a potential sentence of one year or less. 32 The requirement that the offense have a potential sentence of “less than one year” will bar many applicants who have been convicted of just one misdemeanor CIMT. Example: Kari and Harry both were convicted of misdemeanor shoplifting offenses that are CIMTs. Kari was convicted under a theft statute that carries a maximum possible sentence of one year. Harry was convicted under a different theft statute, which carries a maximum possible sentence of six months. Both Kari and Harry received probation with

Chapter 10

29

Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), overruled the holding in LujanArmendariz v. Ashcroft, 222 F.3d 728 (9th Cir. 2000), in finding that an expungement of a first offense for simple possession is still a conviction for immigration purposes. However, the holding does not apply retroactively. Therefore with some restrictions, expungements of pleas entered before July 14, 2011 of first offenses for simple possession of a controlled substance will not be convictions for immigration purposes. The Lujan rule applies only in immigration cases arising within Ninth Circuit states. For more, see ILRC, “Practice Advisory: Lujan and Nunez,” available at www.ilrc.org/crimes. 30 Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010). 31 INA § 212(a)(2)(A)(ii)(II). 32 Id.

10-14

Tab Position 1

Immigrant Legal Resource Center June 2017

no jail, and for both of them this is the first CIMT that they have committed. Who is eligible for non-LPR cancellation? This no-jail misdemeanor will bar Kari from applying for non-LPR cancellation, while Harry still is eligible. They key is that Harry’s offense had a maximum possible sentence of less than one year, while Kari’s offense had a maximum possible sentence of one year.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PRACTICE TIP: Advocacy on All Fronts. Is there anything to be done for a sympathetic client like Kari, or are she and her family doomed because of her single, no-jail misdemeanor? Because of sympathetic cases like these, advocates in some states have been successful in changing the maximum sentence for a misdemeanor from one year to 364 days. For example, California passed SB 1310 on July 21, 2014, which provides that misdemeanors can carry a sentence of up to 364 days. 33 Assuming that Kari is in a state without similar legislation in place, there are still at least a few possible things that Kari might try. If she is otherwise eligible for non-LPR cancellation of removal, meaning she has U.S. citizen or LPR family members who would suffer exceptional and extremely unusual hardship if she was deported, she could use these family members’ reliance on her as a positive equity to negotiate with ICE. Given that Kari had such a minor conviction, ICE might be willing to administratively close her case as a matter of prosecutorial discretion. Working with the community, an elected representative, and the press could support this approach. At the same time, you could investigate whether Kari could withdraw the plea in criminal proceedings and instead plead to a different offense that is not a bar. For example, in many states the maximum possible sentence for attempting to commit an offense is less than for committing it. Unfortunately, this kind of litigation is an expensive and time-consuming process that is not guaranteed to win—but if Kari’s family faces extraordinary hardship, she could try to find pro bono counsel. In any of the above efforts, Kari, her family, and her community would be crucial to the process of gathering and presenting critical evidence about her family’s needs, her good character, and the hardship that her removal would cause. 5. Options for persons convicted of an offense that is an automatic bar to non-LPR cancellation If a person is convicted of an inadmissible offense that is an automatic bar to cancellation of removal, that person cannot apply for a waiver of inadmissibility for purposes of qualifying for non-LPR cancellation of removal. In other words, a person cannot apply for a waiver of inadmissibility in conjunction with an application for cancellation of removal. Although a person might be able to waive those same inadmissibility grounds in other contexts, a waiver of inadmissibility cannot cure the bar to non-LPR cancellation. Advocates have litigated this issue to argue that if a non-LPR cancellation applicant is barred by, e.g., a conviction for a CIMT, then a waiver of the CIMT under INA § 212(h) ought to eliminate the bar. However, the BIA stated that it would not accept such a waiver to cure a bar to non-LPR cancellation under INA Cal. PC § 18.5.

10-15

Chapter 10

33

§ 240A(b)(1). 34 In sum, a conviction that is an automatic bar to cancellation of removal is just that—an automatic bar. Note that this is not necessarily the case for other forms of relief discussed in this manual, such as ten-year suspension of deportation, see § 10.8 or NACARA cancellation of removal, see § 10.25 of this chapter. C.

Bar to Cancellation of Removal: Failure to Show Good Moral Character 1. Overview of the good moral character requirement

The applicant must establish “good moral character” (“GMC”) for the ten years counting backwards from the final administrative decision. See INA § 240A(b)(1)(B). The good moral character requirement has two parts. First, the person must prove that she is not automatically disqualified by a statutory bar from demonstrating good moral character, either for a period of time or permanently. The statutory bars for good moral character are found at INA § 101(f) and described below. If your client is permanently barred from showing good moral character, your client cannot win cancellation of removal. A person is permanently barred from establishing GMC if she has been convicted of murder or an aggravated felony after November 29, 1990, or if she has engaged in persecution, genocide, torture, or severe violations of religious freedom. The remaining statutory bars apply only if the triggering act happened during the timeframe for which good moral character is required. In the case of cancellation of removal for non-permanent residents, that period of time is 10 years. A bad act that happened prior to the required time period will not bar the person from showing good moral character. Second, because a good moral character finding is a discretionary decision of the judge, once the applicant demonstrates that she is not barred by statute, the person still must convince the judge that she has good moral character. 2. What is the period of good moral character for non-LPR cancellation?

Chapter 10

The BIA held that the ten-year period for which good moral character must be established continues until the entry of a final administrative decision (i.e., the final decision of the BIA if there is an appeal). 35 This ten-year period for good moral character is quite different from the tenyear period for continuous physical presence. Remember that continuous physical presence stops running the moment the NTA is served, among other things. In contrast, the period of time for good moral character continues until the final decision, and is the ten years immediately preceding the decision of the judge. An immigration judge will make her decision based on all information up until the time of decision. If that decision is appealed to the BIA, the period for good moral character continues to run until the BIA’s final decision. Thus, your client can continue to take actions to bolster her good moral character until the BIA has made its final decision. Be careful, however, because the flip side is true as well. The adjudicator could determine that any negative acts of the applicant during the time the case is pending can show the applicant lacks good moral character.

34 35

Matter of Bustamonte, 25 I&N Dec. 564 (BIA 2011). See In Re Ortega-Cabrera, 23 I&N Dec. 793, 797-798 (BIA 2005).

10-16

Tab Position 1

Immigrant Legal Resource Center June 2017

3. Statutory (automatic) bars to establishing good moral character As described above, under INA § 101(f), certain people are statutorily barred from showing that they have good moral character. If a person comes under the list provided in INA § 101(f) within the ten years before the judge hears her case, she cannot show good moral character and thus cannot qualify for non-LPR cancellation.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Many of these bars only apply during the time period that good moral character must be established for the benefit sought, such as the ten years for cancellation of removal. Others permanently bar someone from showing good moral character. As noted below, many of the grounds overlap with statutory bars to cancellation of removal. The list includes: Ground

Criminal Bar to Non-LPR Cancellation

GMC Bar if within Prior Ten Years

Conviction or admission of a drug offense, except a single conviction of possession of less than 30 grams of marijuana

Yes, if conviction

Yes, if conviction or admission

Conviction or admission of a CIMT (see above for exceptions)

Yes, if conviction

Yes, if conviction or admission

Having a total sentence of five years or more for two or more Yes convictions

Yes

Engaging in prostitution or other commercialized vice

Yes, if conviction

Yes, if conviction or admission

Immigration authorities having “reason to believe” she is or was a drug trafficker

No

Yes

Alien smuggling, regardless of who is smuggled

Yes, if conviction

Yes, if conviction or admission

Being a habitual drunkard 36

No

Yes

Living off of, or having had two or more convictions for, illegal gambling

No

Yes

Giving false testimony to get or keep immigration benefits

No

Yes

Coming to the United States to practice polygamy

No

Yes

Spending 180 days or more in jail/prison for a conviction or No convictions

Yes

Murder conviction at any time

Yes

Yes

Aggravated felony conviction on or after November 29, 1990

Yes

Yes

There are arguments that this ground is unconstitutionally vague. The Ninth Circuit found this ground unconstitutional in. Ledezma-Cosino v. Lynch, 819 F.3d 1070 (9th Cir. 2016). However, this decision was overturned in an en banc decision. Ledezma-Cosino v. Sessions, May 30, 2017 (WL 2324717).

10-17

Chapter 10

36

Example: Robert is inadmissible under the CIMT ground in INA § 212(a)(2) because he was convicted of robbery five years ago. Can he qualify for non-LPR cancellation? Robert’s conviction bars him from applying for non-LPR cancellation because it is an INA § 212(a)(2) conviction, and also because it makes him unable to prove that he has good moral character within the last ten years. Example: Over the last ten years Bertrand has been convicted three times for drunk driving and one time for being a public nuisance. He spent three days in jail for being a public nuisance and, in total, 115 days in jail for his drunk driving convictions. Can he qualify for non-LPR cancellation? None of Bernard’s convictions is for one of the offenses listed in INA § 212(a) or INA § 237(a) that would automatically bar him from cancellation of removal. Therefore, Bernard only has to focus on the good moral character requirement. Bernard is not barred from establishing good moral character based on spending 180 days in jail as a result of a conviction, because he spent only 118 days in total. He could be found to have been a habitual drunkard at some time over the last ten years based on these offenses. However, the term “habitual drunkard” is not clear and is difficult to apply. 37 He can argue that he is not a “habitual drunkard” because the term is vague, and bring evidence that no doctor has declared him a habitual drunkard. But Bernard may still have a good moral character problem even if he is not barred under INA § 101(f). The immigration judge could still determine in her discretion that Bernard is lacking in good moral character. See Subsection E. Practitioners report that recent drunk driving convictions often lead to a discretionary denial of good moral character for cancellation of removal. Most immigration judges would want to see mitigating circumstances and rehabilitation before granting Bertrand’s case. Bernard should provide evidence that he is rehabilitated and no longer drinking. Any evidence that he has to show that he has a support system and a plan to stay sober would help him, in addition to evidence of positive character factors, such as community service. D.

The Criminal Bar and Good Moral Character Analysis Often Overlap

As described in the chart above, many convictions that could be problematic for showing good moral character will automatically disqualify the person from cancellation of removal because they fit within one of the criminal bars. Even if the conviction might not affect good moral character, it might nevertheless disqualify the person if it is an automatic criminal bar.

Chapter 10

Example: Sonia entered the United States 20 years ago and was convicted of a drug offense 15 years ago. This conviction does not bar her from establishing good moral character for the past ten years because it happened more than ten years ago. However, the conviction is a permanent, criminal bar to non-LPR cancellation because it is a controlled substance offense, which is described under INA § 212(a)(2) and INA § 237(a)(2).

37

But see, Ledezma-Cosino v. Sessions 2017 WL 2324717 (9th Cir. May 30, 2017).

10-18

Tab Position 1

Immigrant Legal Resource Center June 2017

When might a person have some criminal problems but still not come within the automatic bars to non-LPR cancellation, and so have to consider the good moral character bars? There are two situations.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

First, the statute says that to come under the automatic bars to non-LPR cancellation, the person must be convicted of an offense under INA § 212(a)(2), INA § 237(a)(2) or INA § 237(a)(3). If the person has bad conduct (for example, is a drug addict, engaged in prostitution, or admitted a drug offense, false claim to U.S. citizenship) but no conviction, this conduct would not be an automatic bar to cancellation of removal. Nevertheless, the conduct could be a bar to good moral character if it occurred within the ten-year time period during which good moral character must be established. Second, some events that bar good moral character are unique to the good moral character statute, and are not described at all in the criminal conviction bar to non-LPR cancellation. For example, a person who was incarcerated due to convictions for 180 or more days in aggregate during the good moral character period is barred from establishing good moral character. This bar for 180 days or more in jail is not a ground of inadmissibility or deportability, or an automatic bar to cancellation; it only appears in the good moral character section of the statute. See INA § 101(f). Note that this statutory bar to good moral character could cease to be a bar for the individual with the passage of time because the time in jail could end up being more than ten years in the past from when the case is ultimately heard. E.

Good Moral Character as a Matter of Discretion

Once an applicant has shown that she is eligible to establish good moral character, i.e., not statutorily barred, the next step begins. The applicant must present evidence to try to convince the judge that she really does have good moral character. The immigration judge may still deny the cancellation application for good moral character reasons even if the applicant has not committed any of the offenses listed above. Section 101(f) of the INA lists acts that bar a person from showing good moral character, but the immigration judge may consider other negative factors as well in reaching her decision. However, just because your client has done something “bad” does not mean that she will not be able to show good moral character. If anything in your client’s past could be viewed negatively, ask your client to explain the circumstances and help your client show the situation in the best light, or why it will not happen again. If she practices telling you, she will be better able to explain it to the judge. You can help advocate for your client by arguing that the immigration judge should not deny an applicant for lack of good moral character unless there is precedent for doing so. In the past, courts have found a lack of good moral character if a person has: • • • •

failed to support dependents; failed to file tax returns; lied or refused to answer questions about one’s prior activities and arrests; and committed unlawful acts that adversely reflect upon the applicant, such as a restaurant owner selling liquor in violation of the law.

10-19

Chapter 10

It may not be too late to turn around some of these negative factors. For example, you could advise your client to file her back taxes (and she may even discover she is owed refunds). If

payment is due to the IRS, usually a payment schedule can be arranged. If a parent has failed to provide child support, a parent could start providing child support for his or her children, in addition to documenting what “in kind” support may have been provided in the past (clothes, food, school books and tuition, etc.) Again, payment plans are often available and help the judge make a positive determination. In addition to the factors listed above, you should brainstorm with your client whether other negative factors might be present in her case. Although there are no precedential cases on point, practitioners report that recent DUIs can also cause a negative good moral character finding. Some other common situations include allegations of immigration violations, such as false claims to U.S. citizenship, allegations of marriage fraud, and a history of misrepresentation to government agencies. If any negative factor exists in the case (not only those listed here), check the law in your circuit to see if it has been used as a basis for finding a lack of good moral character. In addition to considering negative factors, an immigration judge should also consider any positive factors indicating the applicant has good moral character. Judges must engage in a “balancing test” 38 and weigh positive factors as well as negative ones. A person may present any kind of evidence to show good moral character. Example: At the end of their first meeting, Chiao, the advocate, asks Araceli, the client, to list all the ways she contributes to her family and community in the United States. At home, Araceli wrote down the following positive equities: she cares for her children and elderly father; belongs to her church choir; has always worked; was recently chosen worker of the month at her present job; and volunteered at her son’s school.

Chapter 10

To document good moral character, the client should try to get letters from current or previous bosses, co-workers, teachers, other volunteers, religious community members, and those who benefit from her activities. If a client has won any awards or been recognized in any other way, these documents should be included as well. The person may be a Girl Scout Troop leader, a beloved sister, an excellent employee, a devout church member, or someone who helps elderly neighbors by shopping for them. This kind of evidence is similar to the evidence presented to convince the immigration judge that he or she should grant cancellation of removal as a matter of discretion. Because the decision to grant cancellation of removal is discretionary, this type of evidence helps show both good moral character and convince the immigration judge that the person warrants a grant of cancellation of removal in the exercise of discretion. It is never too late to start participating in the community. See Chapter 2 for more information on working with your client to obtain good evidence.

38

See Matter of Sanchez-Linn, 20 I&N Dec. 362 (BIA 1991); Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986); Matter of B-, 1 I&N Dec. 611, 612 (BIA 1943).

10-20

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 10.5 Exceptional and Extremely Unusual Hardship for Non-LPR Cancellation Exceptional and extremely unusual hardship is often the most difficult requirement for people applying for cancellation of removal cases to prove. The applicant must show that deportation will cause exceptional and extremely unusual hardship to a qualifying relative. A.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Who Is a Qualifying Relative?

Only hardship to U.S. citizen or LPR children, spouse, or parents qualifies under this requirement. Hardship to the applicant does not technically count. Thus, if your client does not have a qualifying relative, she is not eligible for non-LPR cancellation. The law is also very specific as to who constitutes a child, spouse, or parent. These commonplace terms have special legal meanings in immigration law. If a person does not meet the specific statutory criteria listed below, that person might not count as a “spouse,” “child,” or “parent,” for cancellation of removal. It is important to understand exactly who is a qualifying relative to make sure that your client is eligible for non-LPR cancellation of removal. Equally important is to understand how someone may cease to be a qualifying relative and end your client’s eligibility for non-LPR cancellation of removal. 1. Who is a child? A “child” is defined as someone who is under 21 years old and unmarried. See INA § 101(b)(1). Once a child turns 21 years old or marries, that person is no longer a qualifying relative for nonLPR cancellation of removal. 39 Therefore, hardship to a 22-year old son or a married 19-year old daughter would not be a factor for the court in examining a hardship claim. A “child” includes certain stepchildren and adopted children as well. See INA § 101(b)(1). The most common way to prove that someone qualifies as the client’s “child” is to submit a birth certificate to prove the person’s age and, if the person is of an age where marriage would be legal, a declaration or testimony to prove that the person is not married. 2. Who is a spouse? People who are legally married and have a bona fide marital relationship are spouses. After the Supreme Court’s decision in United States v. Windsor, 570 U.S. __, 133 S. Ct. 2675 (2013), same-sex marriages are entitled to the same rights and benefits under federal immigration law as opposite-sex marriages. The most common way to prove that someone is a spouse is to submit a marriage certificate. 3. Who is a parent? A parent includes a natural parent as well as a stepparent. The most common way to prove a parent relationship is to submit a birth certificate. If the parent is a stepparent, you will have to file a copy of the marriage certificate proving the relationship to the other parent. If a person is not a qualifying relative, hardship to that person will not be considered. However, caselaw makes clear that judges can consider hardship to non-qualifying relatives as it affects See, e.g., Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016).

10-21

Chapter 10

39

qualifying relatives. In Matter of Recinas, the applicant had six children, two of whom were undocumented. The BIA considered the hardship of the two undocumented children as it affected the four U.S. citizen children. 40 Similarly, hardship to the applicant is not a factor in non-LPR cancellation of removal. However, any hardship that a lawful permanent resident or U.S. citizen suffers because of the applicant’s suffering can be considered. For example, if the applicant’s removal were to cause her hardship because she could no longer receive treatment for her severe medical condition, the immigration judge could not consider the hardship of this deprivation on the applicant. Yet, if the applicant’s medical hardship were to cause emotional and financial hardship to her lawful permanent resident mother, the judge could consider the hardship suffered by the applicant’s mother. 41 WARNING! Remember that the qualifying relative must exist at the time of the non-LPR cancellation adjudication. If the applicant’s qualifying relative is a child who turns 22 before the cancellation hearing, the applicant will no longer be eligible for cancellation of removal because she will no longer have a qualifying relative. B.

What Is Sufficient Hardship?

The BIA has issued a handful of seminal cases that have come to define what does or does not constitute exceptional and extremely unusual hardship for purposes of non-LPR cancellation of removal. The BIA has consistently held that the standard requires a showing of hardship that is “substantially” beyond the ordinary hardship that would be expected when a close family member leaves the country and is limited to “truly exceptional” situations. 42 Yet, this standard does not need to be so high that cancellation be granted only if one’s deportation would be “unconscionable.” 43 There are no regulations determining which factors the court should look to for determining hardship for non-LPR cancellation of removal. Here, too, the BIA has provided guidance through its caselaw. The three primary non-LPR cancellation decisions that should guide any non-LPR cancellation hardship analysis are: Matter of Monreal, 23 I&N Dec. 56 (BIA 2001); Matter of Andazola-Rivas, 23 I&N Dec. 319 (BIA 2002); and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). Although practitioners should consider all of the factors that are present in a specific case, practitioners preparing non-LPR cancellation of removal should give particular attention to factors that have been examined in the three cases mentioned above. These include the qualifying relative’s: 1. 2. 3. 4.

age; health; special needs in school; length of residence in the United States;

Chapter 10

40

Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). Id. 42 See Matter of N-J-B-, Int. Dec. 3415 (BIA 1999); Matter of Monreal, 23 I&N Dec. 56 (BIA 2001). 43 See Matter of Monreal, 23 I&N Dec. 56 (BIA 2001); Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). 41

10-22

Tab Position 1

Immigrant Legal Resource Center June 2017

5. family and community ties in the United States; 6. family and community ties in the home country; 7. circumstances in the home country, including standard of living, way of life, languages spoken, work opportunities; and 8. alternative methods for immigrating the cancellation applicant.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Note that a central focus of cancellation of removal cases is how these factors apply to U.S. citizen children. Please see the following subsection regarding when to argue hardship that the children will suffer if they are removed along with the applicant as compared with the hardship the children will suffer if they stay in the United States without the applicant. The Obama administration issued new extreme hardship guidance in 2016. 44 This guidance was issued by USCIS and so does not apply to the courts, where cancellation of removal cases occur; it also concerns the extreme hardship standard as opposed to the exceptional and extremely unusual hardship standard required by non-LPR cancellation. Nevertheless, it may be useful as an advocacy tool if your cancellation applicant has certain factors discussed as important by the hardship guidance, as it remains to be seen how much weight immigration judges may give the hardship guidance. In non-LPR cancellation of removal, you and your client must present to the court all of the different types of hardship to the qualifying relative(s) that may apply. The BIA has made clear that courts should not base their decision on any one of the factors listed above, but on the cumulative effect of all the facts when viewed together. 45 Courts are required to use a “totality of circumstances” approach, which means that they must make a determination by looking at whether all of the factors, combined, demonstrate that the qualifying relatives would suffer exceptional and extremely unusual hardship if the applicant were deported. C.

Qualifying Relatives: Stay or Go?

One of the biggest decisions when preparing a cancellation case is whether to argue that your client’s qualifying relatives will suffer hardship on account of staying in the United States without your client OR on account of accompanying your client to her native country if she were deported. The application form for non-LPR cancellation specifically asks whether your client’s qualifying relatives would accompany the applicant if she were deported. 46 There is no right answer, but you should work with your client to think strategically about how to answer this question. As will be explained in more detail below, some practitioners choose not to check the box at all to leave the option open of arguing either or both scenarios. Many judges, however, require clients to pick one scenario and argue hardship based only on that situation.

44

9 USCIS-PM B, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB.html. Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). 46 See Form EOIR-42B, available at www.justice.gov/sites/default/files/pages/attachments/2015/07/24/eoir 42b.pdf. 45

Chapter 10

10-23

The choice of whether your client’s relatives will stay or go plays a crucial role in the ultimate hardship determination. 47 It is very important to explore which option each qualifying relative might realistically choose as well as to strategize which option would make the strongest hardship case. In addition, it is important to remember that the evidence presented must support the position expressed by your client. For example, evidence that conditions in the country of removal are harsh or severe has little weight if the applicant indicates the qualifying relatives will remain in the United States. Because the scenario that you choose to argue will greatly shape what hardship factors may be relevant, and ultimately how compelling the case is, this section will explain how to approach this decision by discussing the relevant caselaw and offering practice tips. Example: Manu’s LPR father has cancer and receives daily chemotherapy. Manu is his father’s only relative in the United States and he relies on him for transportation to chemotherapy and daily care. Manu’s father is not well enough to travel with Manu, should Manu be deported. There is no realistic option of his father coming with him to his country of deportability, so Manu will present to the court the hardship his father will face being left here in the United States if Manu is deported. Example: Sonya has a U.S. citizen teenager who suffers from anxiety and depression. Sonya is from a small town in Guatemala. If she takes her daughter with her, the move might exacerbate her daughter’s anxiety and depression. The small town she will go to does not have comparable mental health services to the ones that her daughter receives now. However, if she leaves her daughter behind to live with the daughter’s aunt, the daughter’s condition will likely deteriorate without the support of her mom. Furthermore, the aunt has five children of her own, and it is unclear whether the aunt has the time or resources to take the daughter to her mental health appointments. Sonya has not decided whether she will take her daughter with her to Guatemala or not. Sonya will work with the legal worker to think through whether it is more likely that she will bring her daughter with her or leave her here. She will also strategize with her legal worker which hardship case is strongest. Because her daughter will suffer hardship under either scenario, this might be a case where the legal worker would choose not to check the box and preserve both arguments, if the judge will allow it. 1. First step: Know the caselaw

Chapter 10

Generally both the courts, and perhaps applicants, presume that the hardship in a case is the hardship that the qualifying relatives would face should they accompany the applicant back to the applicant’s home country. It is important to consider whether or not the relatives will indeed accompany the applicant, or whether they might face hardship here in the United States. For instance, a U.S. citizen parent of an applicant might face exceptional and extremely unusual hardship in the United States if a child that is her sole caretaker is removed. However, where a 47

Salcido-Salcido v. INS, 138 F.3d 1292 (9th Cir. 1998); Cerrillo-Perez v. INS, 809 F.2d 1419, 1423 (9th Cir. 1987); Ramos v. INS, 695 F.2d 181, 186 (5th Cir. 1983); Luna v. INS, 709 F.2d 126, 128 (1st Cir. 1983).

10-24

Tab Position 1

Immigrant Legal Resource Center June 2017

minor child is the qualifying relative, the courts have presumed the applicant will go with the parent. Recent cases have begun to chip away at this presumption and offer more flexibility to the applicant in arguing hardship.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

In 1994, the BIA held in Matter of Ige that the test of hardship for U.S. citizen or LPR children is the hardship that the children would suffer if they leave the United States with their parent who is removed. 48 The BIA further held that if a U.S. citizen or LPR child would not suffer extreme hardship as a result of accompanying her parents abroad, any hardship that the child might face if she is left in the United States without them would generally be attributed to “parental choice.” 49 The BIA also held that courts could not even consider the alternative scenario—hardship that the children would suffer on account of staying in the United States without their deported parent— unless specific evidentiary requirements were met. The BIA required that the parent submit an affidavit that clearly stated his or her intention for the child to remain in the United States, accompanied by evidence demonstrating that reasonable provisions would be made for the child’s care and support in the United States. 50 The BIA was essentially requiring applicants to prove that leaving their children in the United States was a realistic option before the BIA would consider hardship under that scenario. Caselaw has evolved over the last twenty years, and there are now exceptions to this rule. The BIA recently clarified that if a child has two parents, and only one is in removal proceedings, an affidavit and other documentary evidence regarding the planned care and support of the child is not required as long as the parent in proceedings indicates her intention for the child to stay in the United States with the remaining parent. This is so even if the parent who would stay in the United States with the child does not have lawful status. 51 There is also persuasive authority in the Ninth Circuit that the evidentiary requirement laid out in Matter of Ige does not apply if other evidence adequately shows that the family will be separated. 52 So what do we make of this caselaw? These cases, read together, tell us that the courts are becoming more flexible in considering hardship that children face if they remain in the United States after the applicant is deported. Nevertheless, these cases indicate that courts still need to see some evidence that the choice to leave the qualifying relatives in the United States is a

48

Matter of Ige, 20 I&N Dec. 880, 886 (BIA 1994). 20 I&N Dec. 880, 886 (BIA 1994). 50 Id. at 885; see also Perez v. INS, 96 F.3d 390, 393 (9th Cir. 1996); Matter of Calderon-Hernandez, 25 I&N Dec. 885, 886 (BIA 2012). 51 Matter of Calderon-Hernandez, 25 I&N Dec. 885, 886 (BIA 2012). The BIA further stated that where the remaining parent lacked lawful status but was not in proceedings, it would not speculate on the likelihood that he or she would be placed in proceedings in the future or what would happen if that occurred. 52 Flores v. Holder, 346 F. App’x 221, 222 (9th Cir. 2009) (citing Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998)). 49

Chapter 10

10-25

reasonable one. This evidence could be showing that the child has another parent living here; or testimony that the deported parent could not care for the child in the home country. 53 These cases also emphasize that hardship is a case-by-case analysis. 54 If your client presents evidence that her child would face hardship due to family separation if your client is deported, you should argue that the court must consider that evidence on a case-by-case basis and not disregard the hardship as parental choice. 2. Second step: Discuss both scenarios with client If your client is deported, it would undoubtedly cause a great deal of hardship for your client and her family members, whether the qualifying relatives stay in the United States or not. Nevertheless, it is important to think through what each option would entail. Envisioning the realities of deportation is a nightmarish thing to talk about, and your client may find it painful to talk about or even to consider either possibility. As an advocate, you will need to help—and at times, gently push—your client and her family members to think about which scenario they might choose, and what types of hardship each might create or worsen. Although it is difficult to talk about, know that it will help strengthen your client’s case—and help avoid the very hardship that you are discussing—to explain in detail to the judge exactly how awful life will be for your client’s qualifying relatives if your client is deported. 3. Third step: Choose how to present the case The best argument to present to the judge is the strongest one. This means that once you have spoken to your client about what her plan is, and what might happen to her qualifying relatives both if they stay in the United States and if they leave, choose the scenario that demonstrates the most hardship. Remember that a strong argument must be a credible one. It is not a strong argument to say that your client’s two-year-old daughter will remain in the United States alone after her mother is deported with no explanation of how or why the mother would make that choice. In the cases above, such a claim without firmer backing will not be considered realistic: In fact, the BIA has specifically held that a claim of hardship based on family separation will not necessarily be given “significant weight” because although the claim “can easily be made for purposes of litigation,” it noted that “most parents would not carry out such an alleged plan in reality.” 55

Chapter 10

It is a strong argument, however, to explain that your client’s two-year old daughter will remain in the United States with her father and older siblings who can care for her because the family has decided that the mother cannot risk bringing her daughter back to the mother’s native country of Afghanistan. In support of this argument, your client could present an affidavit from the father promising to care for the child, and country conditions of the mother’s town in Afghanistan showing the current security risks to civilians.

53 Matter of Calderon-Hernandez, 25 I&N Dec. 885, 886 (BIA 2012); Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998). 54 See, e.g., Chahoud v. Mukasey, 282 Fed. App’x 916, 917 n.1 (2nd Cir. 2008); Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998); Rangel-Medel v. INS, 110 F.3d 69 (9th Cir. 1997); Perez v. INS, 96 F.3d 390, 393 (9th Cir. 1996); Cerillo-Perez v. INS, 809 F.2d 1419, 1426 (9th Cir. 1987). 55 Matter of Ige, 20 I&N Dec. 880 (BIA 1994).

10-26

Tab Position 1

Immigrant Legal Resource Center June 2017

As discussed above, the non-LPR cancellation of removal application form specifically asks whether qualifying relatives would accompany the applicant if she were deported. Some practitioners strategically decline to answer this question, arguing that either scenario would meet the hardship standard in order to preserve appeal on both scenarios. If the client’s qualifying relatives will suffer severe hardship whether they stay in the United States or go, the client should consider whether the judge might allow the client to present evidence about both scenarios. Anecdotally, some judges allow more leeway in practice for respondents to present the hardship that would result from both possible scenarios. If the judge is one of those who allows some leeway, evidence about hardship under both of the two scenarios can be presented.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

If you opt for this strategy, recognize that presenting both scenarios only works where the client indicates that both are possible scenarios for the family. If the client will testify that only one scenario is realistic, arguing both scenarios will not strengthen the case. The judge is likely to press your client to choose one to argue in court. It is very likely that the parent will be asked in court whether she intends to bring the children with her if she is deported, why or why not, and what would be the ensuing hardships of that particular choice. Your client and her relatives should be prepared to testify about why either scenario would cause exceptional and extremely unusual hardship and, if true, that her family has not yet decided what they would do. § 10.6 Discretion Two of the statutory factors, hardship and good moral character, are discretionary determinations and hinge on the facts of the case, not just the law. This means that the judge has the freedom to find that someone has not met the hardship requirement, or does not have good moral character, in the judge’s discretion. The other requirements for cancellation of removal, such as establishing ten years of continuous physical presence, or not having any disqualifying crimes, are not discretionary determinations. The law is set, and the judge must apply the statutes and caselaw to the facts of the case at hand. But the judge has much more freedom in deciding whether your client has met the good moral character or hardship requirements. The final decision to grant cancellation of removal is also left to the discretion of the judge. Because the ultimate grant of cancellation is also discretionary, a judge could deny a cancellation case even if the applicant has met all of the criteria explained above: established ten years of continuous physical presence, good moral character, and exceptional and extremely unusual hardship. However, if the judge does not think your client is a “good guy,” the judge will usually find in her discretion that your client lacks good moral character or has not met the hardship requirement. It is rare for a judge to find a person to have met all of the statutory requirements, and yet deny the case as a matter of discretion.

10-27

Chapter 10

It can be helpful to think of discretion as involving a judgment as to whether the applicant is the “sort of person” that should be allowed to stay in the United States. Because the judge has the authority to grant or deny a non-LPR cancellation application in his or her discretion, the best practice is to try to use all the evidence you have to show that your client is an upstanding, productive, and likeable person. Because it is hard to predict exactly what discretionary factors a judge might care most about, the best strategy is to put forward a wide range of evidence showing that your client is an upstanding member of society, such as letters from co-workers, landlords,

neighbors; proof of paying taxes; proof of paying child support, if applicable; or educational records. Sometimes cases have “bad” facts, such as a string of arrests for driving without a license, or juvenile offenses. The government might try to introduce evidence about these “bad” facts to show that your client is not the “sort of person” that should be allowed to stay. You and your clients cannot ignore these bad facts. Instead, work with the client to see if you can present this information in a way that is less damaging, or that shows rehabilitation. Find out from your client if the bad facts relate to a single source of trauma or an incident that your client can discuss to explain a string of prior bad behavior. For example, perhaps the juvenile offenses stemmed from a period of abuse at home. Once you know the facts, develop a strategy to work with the “bad” facts. See Chapter 8. For example, the client might want to disclose the bad information herself, rather than letting the ICE trial attorney bring it out first, to lessen the sting of the information and to make the client look honest and forthright. Hopefully, the client can also explain how she has overcome this bad period. Of course, think carefully before introducing “bad” facts to the judge if the facts are the type that neither the judge nor the ICE attorney would find out about anyway. In using her discretion, the judge must carefully weigh and balance all factors, both negative and positive, to determine whether the applicant should be allowed to stay in the United States. Factors that a judge may use in denying a cancellation case in her discretion include: • • • •

the applicant’s preconceived intent to remain in the United States even though he or she entered with a non-immigrant visa; the fact that the applicant’s entire family lives in the foreign country; the applicant’s poor reputation in her community; and any other indications that the applicant would not be a productive and moral resident of the United States.

You should check the law in your circuit to see if these, or other, factors apply. For instance, cases across the country are divided on the question of whether a judge can discretionarily deny suspension of deportation (and thus perhaps cancellation of removal) because the applicant relied on welfare or other public benefits. Because cases are divided, it is usually safest to help a cancellation of removal applicant get off of welfare and get at least a part-time job out of the house, if possible, prior to the cancellation of removal hearing. Nevertheless, even though an applicant receives welfare, it does not automatically mean the cancellation of removal application will be denied. Much of the success of the case might depend on the caselaw in your circuit, so it is important to check the law in your circuit if your client is on welfare. None of these discretionary factors, including receipt of welfare, will absolutely dictate the outcome of the case. But they might influence the discretionary determinations of good moral character and/or hardship. The fact that the overall grant of cancellation of removal is also a discretionary decision affects the power of appellate courts to review cancellation of removal decisions. The next subsection explains these limits on review in more detail.

Chapter 10

§ 10.7 Judicial Review All immigration court decisions can be appealed to the BIA. But not all decisions can be appealed further to the federal circuit courts. Congress passed the Illegal Immigration Reform and

10-28

Tab Position 1

Immigrant Legal Resource Center June 2017

Immigrant Responsibility Act (“IIRIRA”) in 1996, which restricted the authority of federal courts to review immigration decisions. In particular, IIRIRA prohibited federal courts from reviewing determinations of discretionary issues for cancellation cases. 56 This means that the BIA’s decisions regarding hardship or discretion in cancellation cases cannot be appealed to the circuit courts.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Nevertheless, the federal courts are permitted to review non-discretionary determinations in cancellation of removal cases because these are questions of law. This is because IIRIRA cannot eliminate the courts’ power to review constitutional claims or questions of law. 57 In other words, although the courts may not review discretionary determinations (such as hardship), federal courts are permitted to review the BIA’s decisions regarding continuous presence, qualifying relatives, criminal bars, and other questions of law. WARNING! If your client leaves the United States while her immigration case is on appeal to the BIA, she may be seen to have abandoned her appeal. The Ninth Circuit might be more lenient if the person did not have notice of the possible effect of a departure on her appeal and can show that her case was damaged by this lack of warning. For example, in Martinez-De Bojorquez, 365 F.3d 800 (9th Cir. 2004), the immigrant had been an LPR since 1987. At her deportation hearing, she was not told that her appeal would be deemed waived if she left the country for even a few minutes. During the four-and-a-half years the BIA took to decide her appeal, she left the country for brief periods of time. The Ninth Circuit held that under the circumstances, considering her departure as a withdrawal of her appeal without any notice whatsoever constituted a violation of her constitutional right to due process. Nevertheless, it is best to advise your client to not leave the United States at any time while in removal proceedings or during the appeals process in order to avoid these complications. But if your client did leave, check the law in your jurisdiction to see if there are any arguments to be made that her case should not be considered withdrawn. PART TWO: THE LAW OF SUSPENSION OF DEPORTATION § 10.8 Introduction to Suspension of Deportation There are very few suspension of deportation cases now because this relief option is only for deportation proceedings begun before April 1, 1997, and, at least in the Ninth Circuit, for some undocumented persons with certain very old criminal convictions. When Congress passed IIRIRA, it replaced suspension of deportation with cancellation of removal, which is described in depth in Part One of this chapter. Nonetheless, these cases do arise. These cases come up most often in situations where an old deportation case is reopened for various reasons, such as lack of notice.

56

10-29

Chapter 10

See De La Vega v. Gonzales, 436 F.3d 141 (2nd Cir. 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005); Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003); Ventura v. Garcia, 348 F. 3d 1259 (10th Cir. 2003). 57 See INA § 242(a)(2)(D); see also Cruz Rendon v. Holder, 603 F.3d 1104 (9th Cir. 2010); CabreraAlvarez v. Gonzales, 423 F.3d 1006 (9th Cir. 2005).

This section will describe the two types of suspension of deportation cases. The first type, sevenyear suspension, is for individuals who are still in deportation proceedings begun before April 1, 1997. Very few people will be eligible for this type of relief because almost all deportation proceedings begun before April 1, 1997 have concluded by now. Nonetheless, some immigrants might successfully reopen deportation proceedings and could then apply for this relief. The second type of suspension of deportation is ten-year suspension. This relief is for individuals who are still in deportation proceedings begun before April 1, 1997 or, in the Ninth Circuit only, a noncitizen may be able to apply for ten-year suspension of deportation if she pled guilty to an offense before April 1, 1997 that made her deportable or inadmissible. The person can apply for suspension even in removal proceedings begun today. This can be a fantastic form of relief for undocumented persons, or even lawful immigrants who become deportable and do not have any other defense against removal. See the discussion of Lopez-Castellanos v. Gonzales in Subsection B, below. It is important to note upfront that there are many differences between cancellation of removal and its predecessor, suspension of deportation. Under the old suspension law, an applicant only needed to show seven years, not ten years, of continuous physical presence, and only needed to show extreme hardship, not “exceptional and extremely unusual” hardship as is required for cancellation. The more stringent requirements of ten-year suspension, including ten years of presence and the exceptional and extremely unusual hardship standard, applied to individuals who had certain criminal convictions. Now, these heightened requirements are the base level requirements for all non-LPR cancellation applicants, and there is no alternative cancellation-type relief for those who have criminal convictions. Additionally, hardship to the applicant herself is considered under the prior suspension law and does not count under cancellation law. The requirements of cancellation are therefore considerably more difficult to meet than those of the old suspension law. PRACTICE TIP: Except for the Lopez-Castellanos situation in the Ninth Circuit that is described above, anyone who was placed in proceedings on or after April 1, 1997 will not be able to apply for suspension of deportation. A.

The Former Seven-Year Suspension

Suspension of deportation was a form of relief that allowed noncitizens who were longtime residents of the United States to defend themselves against deportation. A noncitizen who was granted suspension could stay in the United States as a lawful permanent resident. Suspension of deportation was codified at former INA § 244(a) and 8 CFR §§ 1240.55-58.

Chapter 10

Only people who still are in deportation proceedings begun before April 1, 1997 can apply for “seven-year” suspension of deportation now. Suspension of deportation was eliminated under IIRIRA and replaced with cancellation of removal under INA § 240A(b)(2). But see Subsection B, below, describing an exception in the Ninth Circuit only for ten-year suspension. Applicants for suspension of deportation must meet three basic requirements. First, the applicant must have lived in the United States continuously for the past seven years. Second, the applicant must show she has had “good moral character” for the seven years prior to the hearing. Third, the

10-30

Tab Position 1

Immigrant Legal Resource Center June 2017

applicant must show that her deportation would result in “extreme hardship” to herself or to her spouse, parent, or children who are U.S. citizens or LPRs. See former INA § 244(a)(1). Like cancellation of removal discussed in Part One, suspension of deportation is a discretionary form of immigration relief. This means that the judge has the ultimate power to deny relief if she feels the applicant does not deserve to remain in the United States, regardless of whether the person meets the above statutory requirements.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

There are several bars to suspension. See former INA § 242B(e). An applicant for suspension cannot qualify for five years after any of the following events: (1) she was found deportable in absentia, after having received written and oral notice of the hearing and the consequences of failing to appear; (2) she remained in the United States after a scheduled voluntary departure; or (3) she failed to appear, after written and oral notice of the consequences, for an asylum hearing after expiration of any period of authorized stay, or a scheduled deportation after having been ordered deported. There was an exception if one of the events listed occurred due to exceptional circumstances. See former INA § 242B(f)(2). In addition, persons are ineligible if they assisted in Nazi persecution or genocide (former INA § 241(a)(4)(D)), or were alien crewmen who entered the United States after June 30, 1964, and certain non-immigrants (former INA § 244(f)). These bars apply to both seven-year and ten-year suspension. If someone became deportable for crimes (former INA § 241(a)(2), (3), or (4)), 58 she would be ineligible for seven-year suspension, but might be able to apply for ten-year suspension, as explained below. B.

The Former Ten-Year Suspension and the Current Rule in the Ninth Circuit

The former “ten-year suspension of deportation” was a form of relief that allowed noncitizens who were longtime residents of the United States to defend themselves against deportation, even if they had become deportable for having one or more criminal convictions. Thus, someone who was ineligible for the former seven-year suspension because of being deportable or inadmissible for crimes could seek relief under ten-year suspension if she met the criteria outlined below. A noncitizen who was granted ten-year suspension could stay in the United States as a permanent resident. See the former INA § 244(b); 8 CFR §§ 1240.55–58. The applicant had to show ten years of physical presence and good moral character for ten years immediately following the conviction. Ten-year suspension would waive any conviction except an aggravated felony conviction received on or after November 29, 1990. An aggravated felony conviction on or after this date destroys eligibility for ten-year suspension because it is a permanent bar to establishing good moral character. Ten-year suspension was eliminated as of April 1, 1997. However, in 2006 the Ninth Circuit held that people who pled guilty to offenses before April 1, 1997, and who otherwise qualify for tenyear suspension, are able to apply for this in removal proceedings today. Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. 2006). The court used the same rules about retroactivity that the U.S. Supreme Court set out in the INA § 212(c) case, INS v. St. Cyr, 533 U.S. 289 (2001).

These grounds include all of the criminal grounds of deportability; failure to register; having a conviction for falsification of documents or being the subject of a civil document fraud final order; and any of the national security or terrorist grounds of deportability.

10-31

Chapter 10

58

To be eligible for ten-year suspension under the Ninth Circuit’s rule in Lopez-Castellanos, the applicant must show she: • •

• •

is deportable under the crimes grounds based on a conviction by plea that occurred before April 1, 1997; must establish good moral character for at least ten years following conviction or status that makes the person deportable under crimes ground (she can be convicted of an aggravated felony, but only if the conviction was before November 29, 1990, so that it is not a permanent bar to establishing good moral character); must establish ten years of continuous presence in the United States; and must show exceptional or extremely unusual hardship to herself and/or her U.S. citizen or LPR spouse, parent, or child.

Who would be eligible for this relief? Example: (the Lopez-Castellanos case.) After living in the United States without papers for several years, Mr. L-C was convicted of a crime involving moral turpitude in 1988. His conviction is for an offense that has since been classified as an aggravated felony. Today he is eligible to establish good moral character because the aggravated felony conviction occurred before November 29, 1990 and was not a permanent bar to good moral character. He has amassed 26 years of good moral character since his conviction. In removal proceedings in Ninth Circuit states, Mr. L-C can apply for suspension of deportation. Example: Bernardo is convicted of one or more drug offenses in 1993. The convictions are not aggravated felonies, but they make him inadmissible and deportable. They would have barred him from seven-year suspension of deportation, but not from ten-year suspension, which can waive a drug conviction if ten years have elapsed from the date of conviction to the date of application. Arguably Bernardo is eligible for suspension of deportation. The fact that Bernardo did not have the ten years before suspension was eliminated in 1997 does not bar relief under Lopez-Castellanos. Advocates who are not in the Ninth Circuit should consider arguing that the Ninth Circuit’s holding in Lopez-Castellanos should be expanded to allow noncitizens to apply for the former ten-year suspension in removal proceedings. Because this issue will have to go before federal court, it will require an advocate who is expert in federal court argument. § 10.9 Continuous Physical Presence for Suspension of Deportation

Chapter 10

An applicant must show that for the seven (or ten) years immediately before applying for suspension, she has lived in the United States without significant absences. If the applicant has served in the U.S. Armed Forces for two years or more, she does not need to prove the seven-year continuous physical presence requirement. See former INA § 244(b)(1). Example: Juana Martinez lived in the United States without leaving from 1973–1981. From 1981–1986 she lived in Argentina. In 1986 she returned to the United States and has lived here continuously since then. Juana was placed in deportation proceedings in 1991. She did not qualify for suspension because she did not live in the United States for seven years immediately before applying for suspension. 10-32

Tab Position 1

Immigrant Legal Resource Center June 2017

The continuous physical presence requirement does not mean that the client must prove she has never left the United States. Clients qualify for suspension even if they have left the United States during the seven (or ten) years so long as their absences were only “brief, casual and innocent and did not meaningfully interrupt continuous physical presence.” See the former INA § 244(b)(1).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

It is impossible to specify an exact period of time that will always be considered “brief” because courts determine what constitutes “brief” on a case-by-case basis. For example, the Ninth Circuit has found that absences of six weeks, three months, and even a rare six-month absence did not break continuous physical presence. 59 This does not mean that the Ninth Circuit, or any court, will always find that a six-month absence will not break continuous physical presence; it depends on the circumstances. By contrast, the BIA found that much shorter absences broke the continuous physical presence requirement. Often the circumstances surrounding the absence (that is, why the applicant left the United States, how long she planned to leave for, and why she stayed as long as she did) are as important as the actual length of time the applicant was gone. Remember that each circuit may have its own law on this issue and you must research what rules apply in the area where you work. Some of the factors that tend to show the absence was “brief, casual, and innocent” include: • • • • •

the absence was for a short period of time; the absence was due to an emergency; the absence was for a business reason; the applicant left the United States with the intent to be gone a short period of time and an emergency forced her to stay longer; and the applicant did not move out of her house or apartment and did not quit her job before she left the United States.

Whereas some factors which might show the absence was not “brief, casual, and innocent” include: • • • • •

the absence was for a long period of time; the reason for the absence was to commit a crime or help someone else commit a crime; the applicant obtained a fraudulent visa in order to re-enter the United States; the applicant intended to leave the United States and live in another country; and the applicant left the United States because she was deported.

IIRIRA introduced the rule that the service of a charging document (the Notice to Appear or Order to Show Cause) “stops” the clock for counting time towards the physical presence for cancellation cases. 60 The BIA has ruled that this stop-time rule applies retroactively. 61 This means that a person cannot accrue time for physical presence in a suspension case once she has been 59

10-33

Chapter 10

See Delgallardo v. INS, 624 F.2d 85 (9th Cir. 1980); Heitland v. INS, 551 F.2d 495 (9th Cir. 1977); Toon-Ming Wong v. INS, 363 F.2d 234 (9th Cir. 1966). 60 IIRIRA § 309(c)(5), 110 Stat. at 3009-627. 61 Matter of Nolasco-Tofino, Int. Dec. 3385 (BIA 1999); see also Matter of Mendoza-Sandino, Int. Dec. 3426 (BIA 2000).

served a Notice to Appear or an Order to Show Cause, regardless of whether the Notice to Appear or Order to Show Cause was served before, on, or after the enactment of IIRIRA. Although this holding has been challenged, the circuit courts that have addressed this issue, including the Ninth Circuit, have all ruled in favor of the BIA decisions. 62 Advocates issued guidance in opposition to this position in a 2000 memo entitled Practice Advisory: Suspension of Deportation after IIRIRA Retroactivity, Reaccrual and the Stop Time Rule. 63 This memo discusses the fact that there are two types of physical presence. The first period is acquired before the Order to Show Cause or Notice to Appear is issued. The second period of physical presence is that time that one accrues after an Order to Show Cause or Notice to Appear has been served. Unfortunately, the circuit courts to have addressed the issue follow the Ninth Circuit in holding that one cannot accrue a new seven years sufficient for suspension of deportation following the serving of an Order to Show Cause. 64 § 10.10 Good Moral Character for Suspension of Deportation The definition of good moral character for suspension and cancellation of removal is the same. INA § 101(f) lists the bars to showing good moral character for all purposes under the INA. The court thus undergoes the same analysis in suspension cases as it does in cancellation cases. For a deeper look at showing good moral character, see § 10.4 above. § 10.11 Hardship for Suspension of Deportation Seven-year suspension of deportation applicants need to show extreme hardship to a qualifying relative or themselves. This is a less stringent requirement than what cancellation requires in two ways. First, hardship to the applicant is considered. And second, the standard of extreme hardship is a much lower standard than the exceptional and extremely unusual hardship standard required for cancellation of removal. Ten-year suspension applicants have the same standard for showing hardship as do current applicants for non-LPR cancellation: exceptional and extremely unusual hardship to a qualifying relative; however, they still benefit from the ability to show hardship to the applicant. The Department of Justice issued regulations in 1999 specifying the hardship factors to be considered in suspension of deportation cases: 1. The age of the immigrant, both at the time of entry to the United States and at the time of application for suspension of deportation; 2. The age, number, and immigration status of the immigrant’s children and their ability to speak the native language and to adjust to life in another country;

Chapter 10

62

See Sibanda v. INS, 282 F.3d 1330, 1335 (10th Cir. 2002); Pinho v. INS, 249 F.3d 183, 187 (3rd Cir. 2001); Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001); Rojas-Reyes v. INS, 235 F.3d 115, 121 (2nd Cir. 2000); Ashki v. INS, 233 F.3d 913, 918 (6th Cir. 2000); Afolayan v. INS, 219 F.3d 784, 787-88 (8th Cir. 2000). 63 AILF (Apr. 6, 2000), available at www.vkblaw.com/news/fourhundredninetysix.htm. 64 Ram v. INS, 243 F. 3d 510 (9th Cir. 2001). The Ninth Circuit has ruled that judicial review exists for decisions based on the “continuous physical presence” requirement because it does not involve a decision based on discretion. Castillo-Perez v. INS, 212 F. 3d 518 (9th Cir. 2000).

10-34

Tab Position 1

Immigrant Legal Resource Center June 2017

3. The health condition of the immigrant or the immigrant’s children, spouse, or parents and the availability of any required medical treatment in the country to which the immigrant would be returned; 4. The immigrant’s ability to obtain employment in the country to which the immigrant would be returned; 5. The length of residence in the United States; 6. The existence of other family members who are or will be legally residing in the United States; 7. The financial impact of the immigrant’s departure; 8. The impact of a disruption of educational opportunities; 9. The psychological impact of the immigrant’s deportation; 10. The current political and economic conditions in the country to which the immigrant would be returned; 11. Family and other ties to the country to which the immigrant would be returned; 12. Contributions to and ties to a community in the United States, including the degree of integration into society; 13. Immigration history, including authorized residence in the United States; and 14. The availability of other means of adjusting to permanent resident status.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

8 CFR § 1240.58. A.

Who Is a Qualifying Relative?

In both seven-year suspension and ten-year suspension, the applicant must show hardship to herself or to a U.S. citizen or LPR spouse, parent, or child. See former INA § 244(a)(1). Qualifying relatives for purposes of suspension of deportation are defined more broadly than for cancellation of removal because hardship to the applicant herself can also be considered. B.

What Constitutes Hardship?

Seven-year suspension of deportation applicants need to show only extreme hardship, not exceptional and extremely unusual hardship. It should be easier to show hardship under suspension than it will be for cancellation of removal cases. Ten-year suspension applicants have the same standard for showing hardship as do current applicants for § 240A(b) cancellation: exceptional and extremely unusual hardship. See the above regulations for hardship factors to consider. Additionally, the Ninth Circuit has ruled that a judge must give individual consideration to all health factors affecting U.S. citizen children and must consider adverse consequences of deportation cumulatively in determining whether “extreme hardship” exists. Failure to consider all relevant facts when deciding extreme hardship will constitute an abuse of discretion. 65

Prapavat v. INS, 662 F.2d 561, 562 (9th Cir. 1981).

10-35

Chapter 10

65

PART THREE: CANCELLATION OF REMOVAL FOR SPOUSES AND CHILDREN WHO HAVE BEEN BATTERED OR VICTIMS OF EXTREME CRUELTY § 10.12 Introduction to VAWA Cancellation and Suspension In 1994, Congress created the Violence Against Women Act (“VAWA”), which provided two principal ways for abused spouses and children of U.S. citizens and lawful permanent residents to obtain permanent resident status. The first of these two important types of relief is self-petitioning under INA § 204. Please see the ILRC publication entitled, The VAWA Manual for information about how to apply for a VAWA self-petition. In this chapter, we will discuss the second avenue of relief—VAWA cancellation of removal 66 and its predecessor, suspension of deportation. 67 VAWA cancellation and suspension allow abused spouses and children of LPRs or U.S. citizens to apply for cancellation of removal (and in some instances, suspension of deportation). Subsequent amendments to VAWA have made it easier for an abused spouse or child to qualify for cancellation and suspension. 68 Like other forms of cancellation of removal, VAWA cancellation stops removal proceedings and allows the applicant the opportunity to become an LPR. Unlike the ten-year requirement for regular cancellation, VAWA cancellation only requires the applicant to have continual physical presence for the last three years. In addition, VAWA applicants are not subject to the “exceptional and extremely unusual” hardship requirement, but must only show that removal would cause “extreme” hardship to the applicant and/or her child or parent. One of the main differences between VAWA cancellation and other types of cancellation is that the hardship requirement does not specify that the qualifying relative has to be a U.S. citizen or LPR. This means that hardship to any parent or child is considered for hardship under VAWA. However, VAWA cancellation applicants must satisfy additional requirements beyond proving continuous physical presence, good moral character, and extreme hardship. The requirements for VAWA cancellation will be discussed more fully below. A.

The Difference between VAWA Cancellation and VAWA Suspension

It is useful at the outset to explain the differences between cancellation of removal and suspension of deportation. As described more thoroughly in Part Two, suspension of deportation is a form of relief available for certain long-term residents in deportation proceedings who could demonstrate continuous physical presence, good moral character, and extreme hardship to themselves or their U.S. citizen or LPR immediate family members. 69 VAWA special rule suspension offered relief from deportation under a more generous standard for the battered spouses, sons, and daughters of U.S. citizens or LPRs and for the noncitizen parents of abused children of U.S. citizens or LPRs. 70 While otherwise paralleling regular suspension, VAWA suspension required that the applicant demonstrate only three years of 66

INA § 240A(b)(2). Former INA § 244(a)(3), repealed by IIRIRA § 208(a)(8), Division C of the Omnibus Appropriations Act of 1996 [H.R. 3610], Pub. L. No. 104-208, 110 Stat. 3009. 68 Violence against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902-1955 (hereinafter “VAWA”). 69 Former INA § 244(a), repealed by IIRIRA § 308(a)(8). 70 INA § 244(a)(3), repealed by IIRIRA § 308(a)(8).

Chapter 10

67

10-36

Tab Position 1

Immigrant Legal Resource Center June 2017

continuous physical presence and that the immigration judge consider “any credible evidence” in determining eligibility. 71 When IIRIRA replaced suspension of deportation with cancellation of removal, 72 VAWA suspension of deportation was replaced with a special form of cancellation of removal for battered spouses and children of U.S. citizens and LPRs. 73 As described more thoroughly in Part One, traditional cancellation of removal applicants must demonstrate ten years’ continuous physical presence, good moral character, and exceptional and extremely unusual hardship to the applicant’s U.S. citizen or LPR spouse, parent or child. 74 For battered spouses and children, however, the requirements remain essentially the same as those required for VAWA suspension of deportation. Thus, abused spouses and children must establish the following: (1) three years of physical presence in the United States, (2) good moral character during that time, (3) that they are not inadmissible under certain inadmissibility grounds or deportable under certain deportation grounds and have not been convicted of an aggravated felony, and (4) that the removal of the applicant would result in extreme hardship to the applicant, the applicant’s child, or the applicant’s parent (regardless of the child’s or parent’s immigration status). 75 Moreover, VAWA cancellation is granted in the exercise of discretion, so that the applicant must also convince the immigration judge that she merits the relief.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Although cancellation of removal has replaced suspension of deportation for most applicants, suspension may still be available to persons who were placed into proceedings prior to IIRIRA’s April 1, 1997 effective date. 76 As a practical matter, however, most persons applying for VAWA suspension of deportation will have already filed those applications and therefore VAWA cancellation of removal will be the form of immigration relief respondents in proceedings will seek. 77 B.

Eligibility for VAWA Cancellation of Removal or Suspension of Deportation

The following persons are eligible to apply for VAWA cancellation and suspension: •

Abused spouses of U.S. citizens and LPRs; 78

•

Abused sons and daughters of U.S. citizens and LPRs; 79

•

Abused “intended spouses” of U.S. citizens or LPRs; o

The term “intended spouse,” added by VAWA 2000, means a person who believed that he or she married a U.S. citizen or LPR and went through a

71

Id. INA § 240A(b)(1). 73 INA § 240A(b)(2). 74 INA § 240A(b)(1). 75 INA § 240A(b)(2). 76 IIRIRA § 309(c). 77 The National Immigration Project’s website, www.nationalimmigrationproject.org, contains helpful sample materials and guidance for advocates preparing applications for VAWA suspension or cancellation. 78 Former INA § 244(a)(3) [suspension], INA § 240A(b)(2)(A)(i)(II & III) [cancellation]. 79 Id. 72

Chapter 10

10-37

marriage ceremony, but whose marriage is not legitimate solely because of the U.S. citizen’s or LPR’s bigamy; 80 o

•

Note that because the definition of “intended spouse” requires that a marriage ceremony have been performed, it does not cover common law marriages. Common law marriages may, however, be valid marriages for immigration purposes if the relationship constitutes a marriage under the law of the state where he parties are domiciled. 81

Non-abused parents of abused children of U.S. citizens or LPRs, even if not married to the abuser, regardless of the child’s status; 82 Example: Maria has lived with U.S. citizen John in the United States for the past four years. They have never married, but have a child, Nate, who is three years old and a U.S. citizen through birth in the United States. John has abused Nate both physically and emotionally. If placed in removal proceedings, Maria may apply for VAWA cancellation of removal, even though she is not married to John and even though she has not been abused herself, because she is the mother of a child (Nate) who has been abused by a U.S. citizen or LPR father (John).

C.

Requirements for VAWA Cancellation of Removal and Suspension of Deportation

An applicant for VAWA cancellation of removal must establish that he or she: •

Has been battered by or suffered extreme cruelty by a spouse, former spouse, intended spouse, or parent who is a U.S. citizen or LPR abuser, or is the parent of a child who has suffered such abuse by a U.S. citizen of LPR parent; 83

•

Has been physically present in the United States for three years before applying; 84

•

Would suffer extreme hardship, or his or her child or parent would suffer extreme hardship, if the applicant were removed; 85

•

Has had good moral character for three years immediately prior to the application; 86

•

Is not inadmissible under INA § 212(a)(2) [crimes] or (a)(3) [security and terrorism grounds] or deportable under INA § 237(a)(1)(G) [marriage fraud], (2) [crimes], (3) [failure to register, falsification of documents, and false claim to U.S. citizenship], or (4) [security and terrorism grounds]; 87

80

INA § 240A(b)(2)(A)(i)(III). Matter of Garcia, 16 I&N Dec. 623 (BIA 1978). 82 Former INA § 244(a)(3) [suspension], INA § 240A(b)(2)(A)(i)(II & III) [cancellation]. 83 INA § 240A(b)(2)(A)(i). 84 INA § 240A(b)(2)(A)(ii). 85 INA § 240A(b)(2)(A)(v). 86 INA § 240A(b)(2)(A)(iii). 87 INA § 240A(b)(2)(A)(iv).

Chapter 10

81

10-38

Tab Position 1

Immigrant Legal Resource Center June 2017

•

Has not been convicted of an aggravated felony under INA § 101(a)(43); and

•

Merits a favorable exercise of discretion. 88

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The requirements for VAWA suspension of deportation are essentially the same as those listed above for VAWA cancellation of removal. 89 § 10.13 Establishing the Family Relationship for VAWA Cancellation and Suspension A.

Applications by Abused Spouses of U.S. Citizens and LPRs

An abused spouse applying for VAWA suspension or cancellation need not be currently married to the abuser. 90 Thus, neither the death of the abuser nor divorce is a bar to VAWA cancellation or suspension, and there is no requirement that the application be filed within a particular period after termination of a marriage or the abuser’s death. Example: Zoe, a U.S. citizen, married Martin in 2007, and they were divorced in 2008. Zoe was abusive to Martin during the marriage. There is no deadline for filing an application for VAWA cancellation of removal. Thus, if Martin is placed in removal proceedings, he can apply for VAWA cancellation of removal, regardless of the length of time that has elapsed since his divorce. There is no statutory requirement that an applicant for VAWA cancellation or suspension demonstrate a good faith marriage. Nonetheless, it is important to document a good faith marriage, since a finding of having entered a fraudulent marriage might make it difficult to establish the requirement of good moral character. Moreover, spouses applying for VAWA cancellation need to prove their relationship to the abuser. This means spouses must submit their marriage certificates and proof of legal termination of any prior marriages of both the victim and her spouse. B.

Applications by Abused Sons and Daughters of U.S. Citizens and LPRs

An applicant for VAWA cancellation or suspension who has been abused by a parent need not be under 21 to qualify for VAWA cancellation. In other words, the statute states that the applicant must be abused by a “spouse or parent,” not that the applicant be a “child.” Example: Alejandra is a citizen of Spain and the daughter of Michael, a U.S. citizen who was abusive to her during her childhood. Michael never filed any visa petition for Alejandra. Alejandra is now 26 years old. If she is placed in removal proceedings, she can apply for VAWA cancellation of removal, even though she is over 21 years old.

88

Id. Former INA § 244(a)(3), repealed by IIRIRA § 308(a)(8). 90 Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (Oct. 16, 1998), and cases cited therein, available at www.asistahelp.org/en/access_the_clearinghouse/vawa/. 89

Chapter 10

10-39

Children need to submit their birth certificates and other records like report cards or medical records that list the name of their parent. If the abuser is a stepparent, the stepchild should also include the marriage certificate between her natural parent and the stepparent. See Subsection D. C.

An Application for VAWA Cancellation or Suspension by the Parent of a Child Who Has Been Abused by a U.S. Citizen or LPR Parent

An important feature of VAWA cancellation and suspension is that the parent of a child who has been abused by a U.S. citizen or LPR parent may apply for VAWA cancellation or suspension, even if the parent was not married to the abuser U.S. citizen or LPR parent. For this type of case, the abused child must meet the definition of “child” under INA § 101(b)(1), that is, the abused child must be unmarried and under 21 years of age. Example: Winnie is a citizen of Zimbabwe and is married to Cesar, a U.S. citizen. Cesar has never been abusive to Winnie, but was abusive to their son, Arnold, who is now 20. If Winnie is placed in removal proceedings, she can apply for VAWA cancellation of removal, even though she has not been abused herself because she has a child (Arnold) who was abused by a U.S. citizen or LPR parent (Cesar). Once Arnold turns 21 or gets married, however, Winnie will no longer be able to file an application for VAWA cancellation, since Arnold would no longer be a “child.” D.

The Immigration Definition of “Child”

The definition of the term “child” under the immigration laws can be found at INA § 101(b) and § 101(c). For purposes of VAWA cancellation, we look to INA § 101(b), which includes all of the following: •

Children born in wedlock;

•

Stepchildren, if the marriage creating the relationship occurred before the child turned 18;

•

Children born out of wedlock [but if immigrating through the father, they must show either legitimation before age 18 and while in the custody of the legitimating parent, or a bona-fide parent-child relationship]; and

•

Children adopted before age 16 who have been in the legal custody of and resided with the adopting parent(s) for at least two years, except that the two years of legal custody and residence are not required if the child was battered or subjected to extreme cruelty by the adopting parent or a family member of the adopting parent residing in the same household. 91 The term also includes a natural sibling of a child adopted under 16, if the sibling was adopted by the same adopting parent while under the age of 18. 92

The terms “parent,” “father,” or “mother” are defined in terms of the definition of child. 93 Close examination should be given to a case in which a stepson or stepdaughter considers applying for VAWA cancellation based upon abuse by a U.S. citizen or LPR stepparent. For

Chapter 10

91

INA § 101(b)(1)(E)(i). INA § 101(b)(1)(E)(ii). 93 INA § 101(b)(2). 92

10-40

Tab Position 1

Immigrant Legal Resource Center June 2017

stepchildren, termination of the marriage between the parent and stepparent by death or divorce generally terminates the stepchild/parent relationship for immigration purposes, unless that relationship continues after the marriage ended. 94 A continued relationship in an abusive situation would clearly be difficult or even dangerous. In 2000, Congress amended VAWA to provide that divorce after filing a self-petition will not negate the eligibility to self-petition. 95 Advocates might want to draw on this provision to argue that divorce should also not negate the eligibility of stepchildren to petition based on abuse from their stepparent. E.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

No “Derivative Beneficiaries” for Purposes of Cancellation or Suspension

There are no “derivative beneficiaries” for purposes of VAWA cancellation of removal or suspension of deportation. This means that children cannot be included in a grant of VAWA cancellation or suspension to their parent. This is so even in the case of a person applying as the parent of an abused child. Under the VAWA 2000 amendments, however, the immigration authorities are required to parole the grantee’s children into the United States and, for a child grantee, the grantee’s parent, into the United States. 96 The parole status will last until adjudication of the parolee’s application for adjustment of status. 97 F.

Residence with the Abuser

The applicant is not required to have resided with the abuser. § 10.14 Battery or Extreme Cruelty for VAWA Cancellation and Suspension The applicant for VAWA suspension or cancellation must show that he or she “has been battered or has been the subject of extreme cruelty” perpetrated by the applicant’s spouse or parent, or that he or she is the parent of an abused child. 98 The “battery or extreme cruelty” requirement for VAWA cancellation or suspension has been interpreted to cover a broad range of acts and behaviors, including physical, sexual, and psychological acts, as well as economic coercion. The Immigration and Naturalization Service (INS) issued regulations defining the phrase “battery or extreme cruelty” for purposes of VAWA self-petitioning, and that definition has been used for VAWA cancellation and suspension applications. Under the regulations, the phrase includes, but is not limited to, “being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” 99 The Ninth Circuit has noted that, under this language, “battery or extreme cruelty” does not necessarily require a level of violence that results or threatens to result in physical or mental injury.” 100 Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or 94

Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981). INA §§ 204(a)(1)(A)(vi) (spouses and children of U.S. citizens), 204(a)(1)(B)(v)(1) (spouses and children of LPRs). 96 INA § 240A(b)(4). 97 Id. 98 INA § 240A(b)(2)(A)(i). 99 8 CFR §§ 204.2(c)(vi) [abused spouses], 204.2(e)(vi) [abused children]. 100 Lopez-Birrueta v. Holder, 633 F.3d 1211, 1216-1217 (9th Cir. 2011). 95

Chapter 10

10-41

forced prostitution, are also included in the definition. 101 Other abusive acts that may not initially appear violent, but are part of an overall pattern of violence, are also sufficient to show battery or extreme cruelty. 102 Violence against another person or thing may be considered abuse if it can be established that the act was deliberately used to perpetrate extreme cruelty against the victim. 103 Several INS memoranda provide further guidance on the term “battery or extreme cruelty.” These emphasize that there is no exhaustive list of acts that constitute “battery or extreme cruelty,” and the definition of battery provided in the regulations is a flexible one that should be applied to claims of extreme cruelty as well as to claims of physical abuse. 104 A person who has suffered no physical abuse may still be able to establish extreme cruelty. 105 The abuse must rise to a certain level of severity, however, to constitute battery or extreme cruelty. 106 Examples of abuse that may constitute extreme cruelty include social isolation of the victim; accusations of infidelity; incessantly calling, writing, or contacting the victim; stalking the victim; interrogating friends and family members; threats; economic abuse; abusive control such as not allowing the victim to have a job or controlling all money in the family; threats to take away children; intimidation; hiding or destroying important papers; and degrading or denigrating the victim. 107 In Hernandez v. Ashcroft, 108 the Ninth Circuit addressed cruel treatment in the context of VAWA cancellation or suspension. At the time of Ms. Hernandez’s application, the law required that the battery or extreme cruelty had to have taken place in the United States. (After the VAWA 2000 amendments, this is no longer a requirement.) Ms. Hernandez argued that her husband’s actions, including calling her from Mexico while she was in the United States and promising that he would not hurt her if she returned to him, were an integral stage in the cycle of domestic violence and thus constituted cruel treatment. The Court agreed, describing the cycle of violence in abusive relationships as consisting of a tension-building phase, followed by acute battery of the victim, and finally by a contrite phase where the batterer’s use of promises and gifts increases the battered woman’s hope that violence has occurred for the last time. The Court also noted that while a relationship may have infrequent episodes of violence, abusive behavior does not occur as a series of discrete events, but rather pervades the entire relationship. The Hernandez Court also made two other very important observations. First, it noted the language in the VAWA regulations, at 8 CFR § 204.2(c)(1)(vi), which provides in part that “other abusive actions may also be acts of violence under certain circumstances, including acts that, in 101

Id. Id. 103 Id. 104 Aleinikoff, Executive Associate Commissioner, Office of Programs, INS Memo HQ 204-P, re: Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents (Apr. 16, 1996), at 9-10, available at www.asistahelp.org/documents/filelib rary/documents/Aleinikoff__41696_1B42EBEED3605.pdf. 105 Id. 106 Id. 107 See Gail Pendleton and Ann Block, AILA Immigration and Naturalization Handbook, Applications for Immigration Status under the Violence against Women Act, 436, 441 (2001), available at www.asistahelp.o rg/documents/filelibrary/documents/applications_for_immigration_status_28b7e6e4ef924.pdf. 108 345 F.3d 824 (9th Cir. 2003).

Chapter 10

102

10-42

Tab Position 1

Immigrant Legal Resource Center June 2017

and of themselves, may not initially appear violent but that are part of an overall pattern of violence.” The Court found that this language protected women like Ms. Hernandez against manipulative tactics aimed at ensuring the batterer’s dominance and control. Second, in response to the DHS’s argument that the Court should give deference to the BIA’s interpretation of extreme cruelty in its decision in Ms. Hernandez’s case, the Court responded that there was no indication that the BIA intended to issue a precedential interpretation of extreme cruelty in this case, since the BIA did not publish the case.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 10.15 Three Years of Continuous Physical Presence for VAWA Cancellation and Suspension The applicant for VAWA cancellation or suspension must show three years of continuous physical presence in the United States immediately preceding the date of the application. 109 Several of the requirements for accrual of continuous presence are relaxed for applicants for VAWA cancellation and suspension. First, issuance of a Notice to Appear (the charging document in a removal case) does not stop continuous physical presence from accruing, as it does in non-VAWA cancellation cases. 110 This means that an applicant can continue to accrue the necessary three years while in proceedings. Commission of a criminal offense that makes the applicant inadmissible or deportable, or of an offense under the security and related deportation grounds, however, does stop the accrual of continuous physical presence. 111 Example: Eric, a citizen of Norway, came to the United States on January 15, 2014, and has not left the country since that date. In 2015, he married Eugenia, an LPR, who was abusive to him. Eugenia never filed an I-130 relative visa petition for Eric. Eric was stopped in December 2016 by ICE, which filed a Notice to Appear with the immigration court, placing Eric into removal proceedings based upon his having overstayed his nonimmigrant authorized stay. Eric’s first removal hearing was held on January 30, 2017. Even though Eric had not accrued three years of continuous presence at the time the Notice to Appear was issued, he had accrued it by the time of his removal hearing, and thus met the physical presence requirements for VAWA cancellation of removal. If prior to January 15, 2017, however, Eric had committed a criminal offense that made him inadmissible or deportable, he would not be able to meet the physical presence requirements, because he could not accrue any time towards physical presence after the date he committed that criminal offense. Second, the rule that continuous physical presence is “interrupted,” or ended, by a single absence of 90 days or more and by aggregate absences of 180 days or more 112 is considerably relaxed for applicants for VAWA cancellation or suspension. An absence from the United States does not prevent the applicant from maintaining continuous physical presence if there is a connection

109

INA § 240A(b)(2)(A)(ii). INA §§ 240A(b)(2)(A)(ii), 240A(d)(2). 111 INA § 240A(d)(1). 112 INA § 240A(d)(2). 110

Chapter 10

10-43

between the absence and the abuse. 113 The absence does not count towards accrual of the required three years of continuous presence, however. 114 Example: Luisa, a citizen of Peru, came to the United States on September 25, 2012, and married Xavier, a lawful permanent resident, the next year. Xavier became very abusive to Luisa and to Luisa’s son, Enrique. To escape the abuse at least temporarily, Luisa took Enrique back to Peru on several occasions. The last visit to Peru was six months ago. Added together, the periods of absence total 250 days. Excluding those 250 days, Luisa has still been in the United States for the required three years. Luisa has now been placed in removal proceedings. She should argue that her absences from the United States were connected to the abuse she suffered, so that those absences cannot count toward the 90or 180-day absence periods that would interrupt the three years of continuous physical presence she needs to qualify for VAWA cancellation of removal. § 10.16 Inadmissibility and Deportability Bars to VAWA Cancellation The criminal requirements for regular non-LPR cancellation under INA § 240A(b)(1) and for VAWA cancellation under INA § 240A(b)(2) are similar, but not identical. The bars to non-LPR cancellation are discussed in detail at § 10.4 of this manual. This section will point out how the bars to VAWA cancellation differ from the bars to non-LPR cancellation. The bars to VAWA cancellation are different from the bars to non-LPR cancellation in two ways. First, a VAWA applicant is only subject to the grounds of inadmissibility if she is seeking admission, or the grounds of deportability if she has already been admitted. Remember that applicants for non-LPR cancellation are barred if they have a conviction that falls under either the criminal deportation grounds or inadmissibility grounds—regardless of whether the person actually is deportable or inadmissible. INA § 240A(b)(1)(C). By contrast, a VAWA applicant has an advantage in that the person is barred only if she actually is inadmissible or deportable under the crimes grounds. INA § 240A(b)(2)(A)(iii). Therefore, a VAWA applicant who entered without inspection is not barred by conviction of an offense if it is described only in a deportation ground—because she is only subject to the grounds of inadmissibility. Example: Eva entered the United States without inspection. She later was convicted of a “crime of child abuse,” which is a ground of deportation at INA § 237(a)(2)(E)(i). This conviction would bar Eva from applying for non-LPR cancellation, because it is an offense described in the deportation grounds. It would not bar Eva from applying for VAWA cancellation, however, because she is not subject to the grounds of deportability. Since she entered without inspection, she is not charged with deportability, but inadmissibility. As such, she must only consider whether the crime makes her inadmissible under INA § 212. Note that if the same crime would make her inadmissible, she would have a problem.

Chapter 10

The second difference does not benefit VAWA applicants. The bar to non-LPR cancellation requires a conviction, and will not be imposed based solely on conduct. (The conduct might be a bar to good moral character if it occurred within the last ten years, however. See § 10.4, above.) 113 114

INA § 240A(b)(2)(B). Id.

10-44

Tab Position 1

Immigrant Legal Resource Center June 2017

In contrast, conduct without a conviction can be a bar to VAWA cancellation, if the conduct made the person inadmissible or deportable. Example: Although Cecily never was convicted of prostitution, she has admitted that she worked as a prostitute. This fact would not bring her within the automatic bar to non-LPR cancellation because that requires a conviction. However, it may bring her within the statutory bar to VAWA cancellation because she is inadmissible for “engaging in” prostitution.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

There is a special waiver for ineligibility based on the deportation ground for a conviction of domestic violence and stalking 115 and violations of domestic violence protection orders, 116 for persons who have been subjected to domestic abuse. The waiver provision is found at INA § 237(a)(7). To qualify for this waiver, the applicant must show that he or she meets the following requirements: • •

the applicant was not the primary perpetrator of violence in the relationship, and either (a) the applicant was acting in self-defense, (b) the applicant violated a protection order intended to protect the applicant, or (c) the crime in question did not result in serious bodily injury and there was a connection between the crime and the abuse. 117

While this waiver is generally available for those facing deportation based on this ground, this waiver may be applied to cure ineligibility for VAWA cancellation. 118 Example: Mari is a citizen of New Caledonia. She came to the United States on a student visa in 2009 and, in 2010, married a lawful permanent resident, Carl. Carl has been abusive. On one occasion, Carl struck Mari, and Mari struck back. Carl was not seriously injured. A neighbor called the police, and both Carl and Mari were arrested. Both pled guilty to domestic violence. Mari is now in removal proceedings. Her conviction for domestic violence will make her ineligible for VAWA cancellation of removal under INA § 240A(b)(2)(A)(iv), unless she qualifies for an exception based on the INA § 237(a)(2)(A)(7) waiver. She appears to qualify for the exception. She meets the first requirement of not having been the primary aggressor in the relationship, since she was only striking back. She also meets the second requirement on two bases—she was acting in self-defense, and Carl was not seriously injured. § 10.17 Good Moral Character for VAWA Cancellation If the VAWA applicant is inadmissible or deportable under the grounds discussed above, he or she is barred from applying for VAWA cancellation. If the VAWA applicant is not inadmissible or deportable under these grounds, we can go on to consider whether the person is barred from establishing good moral character.

115

INA § 237(a)(2)(E)(i). INA § 237(a)(2)(E)(ii). 117 INA § 237(a)(7). 118 INA § 240A(b)(5), added by § 813(c) of the Violence against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960. 116

Chapter 10

10-45

For VAWA cancellation, the applicant must prove good moral character for the three years preceding the date the case is heard by the judge. Like non-LPR cancellation, the period of time runs until the judge makes a decision in the case (or, if the case is on appeal, the final administrative decision). The immigration judge also has the discretion to review the applicant’s record for good moral character for periods of time preceding the three years. See INA § 240A(b)(2)(C). In most contexts, a person who falls under one of the good moral character statutory bars listed in INA § 101(f) lacks good moral character. 119 This rule is eased somewhat for applicants for VAWA cancellation. 120 For VAWA cancellation eligibility, an act or conviction listed in the statutory bars found at INA § 101(f) will not automatically bar a finding of good moral character (as long as it does not make the applicant ineligible under the bar for those inadmissible or deportable for certain crimes described in § 10.16). To meet this exception, the act or conviction must have been connected to the abuse, and the immigration judge must determine that a waiver is otherwise warranted. 121 As a practical matter, however, many of the acts or convictions that prevent an applicant from establishing good moral character will also make the applicant ineligible for VAWA cancellation or suspension under the inadmissibility or deportability grounds discussed above. In a 2005 memorandum, USCIS provided guidance on the exception to the good moral character requirement for VAWA self-petitioners. 122 Under the VAWA self-petitioning exception for good moral character, USCIS may find that a VAWA self-petitioner is of good moral character even if he or she falls under one of the statutory bars in INA § 101(f), if (1) the disqualifying act or conviction is waivable for inadmissibility or deportability purposes and (2) the disqualifying act or conviction is connected to the abuse suffered by the self-petitioner. Thus, both the VAWA cancellation good moral character waiver and the VAWA self-petitioning exception for good moral character require a showing of a connection between the disqualifying act and the abuse. The USCIS memorandum specifically addresses this connection requirement, defining “connected to” as requiring a showing that the abuse experienced by the self-petitioner “compelled or coerced” the self-petitioner to commit the act or crime that precludes good moral character. “In other words, the evidence should establish that the self-petitioner would not have committed the act or crime in the absence of the battering or extreme cruelty.” 123 § 10.18 Extreme Hardship for VAWA Cancellation The applicant for VAWA cancellation of removal must show that his or her removal would result in “extreme hardship” to himself or herself or to his or her child or parent. This hardship 119

INA§ 101(f). INA § 240A(b)(2)(C). 121 Id. 122 William R. Yates, Ass. Dir. Opers. USCIS, Memo re: Determinations of Good Moral Character in VAWA-Based Self-Petitions (Jan. 19, 2005), available at www.uscis.gov/USCIS/Laws/Memoranda/Static_F iles_Memoranda/Archives%201998-2008/2005/gmc_011905.pdf. 123 Id. at 3. VAWA self-petitioners need not show that the act or conviction occurred during the marriage to the U.S. citizen or LPR abuser, however.

Chapter 10

120

10-46

Tab Position 1

Immigrant Legal Resource Center June 2017

requirement is different from many of the other forms of relief discussed in this manual in two ways: First, there is no requirement that the child or parent be a U.S. citizen or LPR. Second, hardship to the spouse (i.e., often the abuser in the VAWA context) does not count.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

There is no definitive test for determining whether extreme hardship exists. Each case must be examined individually with regard to the applicant’s particular facts and circumstances. 124 Practitioners should think creatively about potential hardship factors in each particular case. The Executive Office for Immigration Review (EOIR) has issued regulations on factors to be considered in assessing extreme hardship in VAWA cancellation and suspension applications. 125 These regulations should help VAWA cancellation applicants because they are targeted towards the kind of hardship that VAWA applicants are likely to suffer. Thus, although practitioners should consider all of the factors present, practitioners preparing VAWA cancellation of removal or suspension cases should give particular attention to the following factors: •

The nature and extent of the physical or psychological consequences of abuse;

•

The impact of loss of access to the U.S. courts and criminal justice system, including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations, and prosecution of court orders regarding child support, maintenance, child custody, and visitation;

•

The likelihood that the batterer’s family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant’s child(ren);

•

The applicant’s needs and/or needs of the applicant’s child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country;

•

The existence of laws and social practices in the home country that punish the applicant or the applicant’s child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; and

•

The abuser’s ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant’s child(ren) from future abuse. 126

Experts note that child custody disputes and protection orders are compelling hardship factors. A grant of custody is meaningless if the parent is deported; an abusive parent remaining in the

124

10-47

Chapter 10

Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (Oct. 16, 1998), and cases cited therein, available at www.asistahelp.org/en/access_the_clearinghouse/vawa/. 125 8 CFR §§ 1240.20(c) [VAWA cancellation], 1240.58(c) [VAWA suspension]. 126 8 CFR § 1240.58(c).

United States would then be free to reopen the custody decision without challenge. 127 A protection order is of little use abroad, if the abuser travels back and forth to the victim’s homeland. 128 Experts also note that the effect on children of domestic violence in the household is another important factor to consider. 129 It is important to remember that the hardship factors in an applicant’s case must be considered cumulatively. Thus, even though a particular factor might not in itself rise to the level of extreme hardship, two or more hardship factors, taken together, might rise to that level. 130 In practice the hardship requirement in VAWA cancellation cases is often easier to meet than the hardship requirement in other types of hardship cases. By definition, the VAWA cancellation applicant has suffered abuse and often can demonstrate hardship that the abuse has caused her qualifying relatives. § 10.19 VAWA Cancellation Compared with VAWA Self-Petitioning Under VAWA, battered spouses and children have two routes to obtaining LPR status without the help of their abuser: cancellation and self-petitioning. There are eight main differences between the two forms of immigration relief. 1. A VAWA self-petitioner must show that the abuser is currently in legal immigration status, or only lost it within the two years before the application was filed because of the abuse. Under VAWA cancellation, the abuser must only have been a U.S. citizen or LPR at some time. 2. A VAWA self-petitioner must show that she is currently married to the abuser, or that the marriage was terminated within the two years before the application was filed because of the abuse. Spouses of abusive U.S. citizens (but not spouses of abusive LPRs) may also self-petition up to two years after the abuser’s death. Under VAWA cancellation, the marriage can have been terminated at any time, even before the abuse occurred, and the abuser’s death does not end the victim’s eligibility. 3. A VAWA self-petitioner does not have to show that removal will cause extreme hardship, while a VAWA cancellation applicant does have to meet this requirement. 4. Children of abusive U.S. or LPR parents can apply for relief through a VAWA selfpetitioner or VAWA cancellation. A “child” under VAWA self-petitioning is limited to children who are under 21 years of age and not married. Under VAWA cancellation,

Chapter 10

127

See Gail Pendleton and Ann Block, AILA Immigration and Naturalization Handbook, Applications for Immigration Status under the Violence against Women Act, 436, 441 (2001), available at www.asistahelp.o rg/documents/filelibrary/documents/Applications_for_Immigration_Status_28B7E6E4EF924.pdf. 128 Id. 129 Id. 130 Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); see Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (Oct. 16, 1998), and cases cited therein, available at www.asistahelp.org/en/access_the_clearinghouse/vawa/.

10-48

Tab Position 1

Immigrant Legal Resource Center June 2017

“child” is defined more broadly and includes anyone who suffered abuse from a U.S. or LPR “parent.” 5. VAWA self-petitioners can include their children as derivative beneficiaries. VAWA cancellation does not allow parents to include their children as derivative beneficiaries, but as soon as the parent is granted VAWA cancellation, the Attorney General is required to parole the child(ren) into the United States.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

6. VAWA self-petitioning is an option for the abused parents of U.S. citizens. VAWA cancellation is not available to parents who have been abused by their U.S. citizen children, sons or daughters. 7. VAWA self-petitioners are subject to the family visa preference system, which means that self-petitioning relatives of abusive LPRs may have to wait many years to adjust status. VAWA cancellation applicants are not subject to the preference system. However, they are subject to the 4,000 annual cap for cancellation grants discussed in § 10.2. Persons approved for cancellation after the 4,000 cap is reached are placed on a waiting list until a cancellation grant becomes available. 8. Perhaps most importantly, VAWA cancellation is available only in removal proceedings, which poses the risk of removal for an applicant whose case is denied. Many VAWA self-petitioners have not had to take that risk because USCIS has long adopted a policy of not referring denials to DHS to be placed in removal proceedings (although at the time of this manual’s writing, it is unclear whether this policy will continue). All VAWA applicants in proceedings who are also eligible to self-petition under VAWA should do so. If the USCIS Vermont Service Center approves the petition, the immigration judge may be able to adjust the applicant’s status to that of an LPR. Many judges will continue a case to wait for a decision on a VAWA self-petition. If your client has a strong selfpetition, this is good for your client. However, for someone who is already in removal proceedings, in some cases it might be better to push to move forward with VAWA cancellation before the self-petition is decided. This is a strategy decision that should be discussed with your client. § 10.20 Motions to Reopen in the VAWA Context If someone was in deportation or removal proceedings in the past, that individual must get back into proceedings either to adjust status with an approved VAWA self-petition, or to request VAWA cancellation. The way to get back into proceedings is through a Motion to Reopen. Although there are rules about who can qualify for a motion to reopen, it is easier for VAWA applicants to re-open proceedings than for applicants for many other kinds of relief. It is important to check that the person did not re-enter the United States after being deported or removed by an immigration judge. People who re-entered the United States without permission after being removed may be immediately deported when ICE or CBP reinstates their removal order under INA § 241(a)(5).

10-49

Chapter 10

PRACTICE WARNING: Motions to reopen can be difficult and can pose a big risk to your client if she is removable. It is important to investigate your client’s immigration and criminal history

very thoroughly before filing a motion to reopen and to make sure that only accredited representatives or immigration lawyers with immigration court experience handle VAWA cases that are in removal proceedings, especially those cases involving motions to reopen. PART FOUR: NACARA FOR GUATEMALANS, SALVADORANS, AND FORMER SOVIET BLOC NATIONALS § 10.21 Introduction to NACARA 131

Congress passed NACARA on November 19, 1997. Section 202 of the legislation allows many Nicaraguans and Cubans who entered the United States before December 1, 1995 to adjust their status to permanent residence. The deadline for that application was April 1, 2000. Section 203 of the legislation covers Salvadorans, Guatemalans, and nationals of former Soviet bloc and Eastern European nations who entered the United States over twenty years ago. The legislation gives them the opportunity to apply for cancellation of removal or suspension under rules similar to the suspension of deportation that preceded the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The 4,000 cap for cancellation grants mentioned in § 10.2 does not apply to NACARA cancellation or suspension grants. Although NACARA cancellation and suspension only benefit immigrants who originally entered before 1991, along with some of their spouses and children, it is very important to screen people from the NACARA-qualifying countries for this type of relief. NACARA cancellation is a much more lenient form of relief than non-LPR cancellation. As such, it is worth exploring NACARA eligibility with potential clients. A.

Eligible Individuals

Under NACARA seven-year and ten-year suspension and cancellation, certain individuals from El Salvador, Guatemala, and former Eastern Bloc countries are eligible for cancellation of removal under the old, former INA § 244 suspension of deportation rules, which are more generous than the current non-LPR cancellation of removal. The following persons are eligible for suspension or cancellation benefits, provided that they have not been convicted of an aggravated felony: 1. Salvadoran nationals •

who first entered the United States on or before September 19, 1990 and registered for benefits under the American Baptist Churches v. Thornburgh (ABC) 132 settlement agreement on or before October 31, 1991 (either by submitting an ABC registration 133 or

Chapter 10

131

Nicaraguan Adjustment and Central American Relief Act, enacted as Title II of the District of Columbia Appropriations Act for fiscal year 1998, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997); see also 8 CFR §§ 240.61-240.66. 132 American Baptist Church v. Thornburgh, 60 F. Supp. 796 (N.D. Cal. 1991). 133 The Ninth Circuit has held that filing an asylum application during the registration period counts as submitting an ABC registration. Chaly-Garcia v. U.S., 508 F.3d 120 (9th Cir. 2007).

10-50

Tab Position 1

Immigrant Legal Resource Center June 2017

by applying for temporary protected status (TPS)), unless apprehended at the time of entry after December 19, 1990, or •

who filed an application for asylum with the INS on or before April 1, 1990.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

2. Guatemalan nationals •

who first entered the United States on or before October 1, 1990 and registered for ABC benefits on or before December 31, 1991, 134 unless apprehended at the time of entry after December 19, 1990, or

•

who filed an application for asylum with the INS on or before April 1, 1990.

NOTE: Some NACARA cases can be adjudicated by USCIS Asylum offices. To be eligible for such adjudication, Salvadorans must have filed an asylum application by February 16, 1996 or within 90 days of issuance of Notice 5 (Notice 5 informed Salvadorans of the requirement to file the asylum application); and Guatemalans must have filed an asylum application by January 3, 1995. Salvadorans and Guatemalans who filed asylum applications before the ABC Settlement Agreement was entered into on January 1991 were not required to file a new application, although they could if they wished. 135 3. A national of the Former Soviet Union, Russia, any republic of the Former Soviet Union, Latvia, Estonia, Lithuania, Poland, Former Czechoslovakia, Romania, Hungary, Bulgaria, Albania, Former East Germany, Yugoslavia, or any state of the Former Yugoslavia 1. who entered the United States on or before December 31, 1990, 2. who applied for asylum on or before December 31, 1991, and 3. who was a national of one of the above-mentioned countries at the time the asylum application was filed. 136 8 CFR §§ 240.61, 1240.61. 4. Dependents The spouse or an unmarried child under 21 years of age of a person who is granted suspension under the NACARA provisions can be granted NACARA benefits as long as the family relationship exists at the time that the decision to grant the suspension or cancellation benefit is made. 8 CFR §§ 240.61, 1240.61. The VAWA 2000 amendments extended this relief to noncitizens who were battered or abused by a parent or spouse who is a NACARA recipient. The rules are different for unmarried sons or daughters over 21 years of age of an individual granted suspension under the NACARA provisions. They must have entered the United States on or before October 1, 1990 in order to qualify for NACARA based on the principal applicant’s grant of relief. 8 CFR §§ 240.61, 1240.61.

134

10-51

Chapter 10

Submitting an asylum application will be treated as ABC registration. See id. For more information about the ABC settlement, see USCIS, www.uscis.gov/laws/legal-settlementnotices/american-baptist-churches-v-thornburgh-abc-settlement-agreement. 136 Some of these countries are no longer in existence. 135

According to the statute, ABC Salvadorans and Guatemalans apprehended at the time of entry on or after December 19, 1990 are not eligible for NACARA benefits. However, Salvadorans and Guatemalans who qualify as dependents of a NACARA-eligible spouse or parent or as persons who applied for asylum before April 1, 1990 are not subject to this bar. B.

Requirements

NACARA-eligible persons who were placed in deportation proceedings prior to April 1, 1997 may apply for NACARA suspension of deportation. 8 CFR §§ 240.65(a), 1240.65(a). Individuals who were not placed in deportation or exclusion proceedings by this date may apply for NACARA “special rule” cancellation of removal. 137 The eligibility requirements for NACARA suspension and cancellation are similar, but not identical. Therefore, it is important to determine under which of the forms of NACARA relief your client is eligible. The most important practical differences between the two are issues concerning absences from the United States and limitations on relief. See 8 CFR §§ 240.65, 240.66. The applicant must meet the following additional requirements 138 in order to qualify for sevenyear NACARA cancellation of removal or suspension of deportation: 1. maintain continuous presence in the United States for seven years; 2. not be inadmissible under INA §§ 212(a)(2) or (3) (criminal and security grounds) or deportable under INA §§ 237(a)(2), (3) or (4) (criminal, security, and terrorism grounds) or described in INA § 241(b)(3)(B)(i) (participation in the persecution of others); 3. possess good moral character; 4. demonstrate that returning to the country of origin would result in extreme hardship to the applicant or to the applicant’s child, spouse, or parent who is a U.S. citizen or LPR; and 5. merit a favorable exercise of discretion. Under both NACARA suspension and special rule cancellation of removal, a much more restrictive eligibility standard applies to individuals who are deportable or inadmissible because of criminal convictions or certain other enumerated grounds that make them ineligible for sevenyear NACARA suspension and cancellation. These individuals must establish that they would have been able to qualify under the former “ten-year” suspension: They must show that they were continuously present in the United States for a period of ten years after the commission of the crime or conduct 139 that made them deportable or inadmissible, and they must show that their deportation would cause “exceptional and extremely unusual hardship” to themselves or their spouse, parent, or child. 8 CFR §§ 240.65(c), 1240.65(c), 240.66(c), 1240.66(c). See § 10.25 below for a discussion of “ten-year” suspension and special rule cancellation.

Chapter 10

137

In the Second Circuit, a noncitizen is not eligible for relief under NACARA if she was paroled into the United States and later ordered to be excluded. Because a parolee was never admitted into the United States, the court found that NACARA relief was only available for deportable immigrants and not those in exclusion proceedings. Tanov v. INS, 443 F.3d 195 (2nd Cir. 2006). 138 See IIRIRA § 309(f), as created by NACARA § 203(b); see also 8 CFR §§ 1240.65, 1240.66. 139 Matter of Castro-Lopez, 26 I&N Dec. 693 (BIA 2015) (finding that the ten years begins after the commission of the most recent removable offense).

10-52

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 10.22 Continuous Physical Presence for NACARA For NACARA special rule cancellation, any absence of more than 90 days or a cumulative total of 180 days will break continuous physical presence. However, NACARA suspension is more generous because a single absence of 90 days or aggregate absences of 180 days or more will not stop physical presence. In addition, there is no stop time rule as there is for non-LPR cancellation of removal, so the commission of an offense or the filing of the NTA will not stop accumulation of the required physical presence. Furthermore, service of the NTA or Order to Show Cause will not stop the clock.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The continuous physical presence can begin at any time, including now or in the future. For example, Diana Daughter, who otherwise qualifies as a NACARA dependent because her father was granted NACARA before she turned 21, entered the United States five years ago. Her continuous physical presence began the date she entered, and she will meet the seven-year requirement in two years. There are two things that do stop the clock for NACARA continuous physical presence. First, a voluntary departure under threat of deportation will stop the clock. Second, absences in excess of 90 days or 180 days in the aggregate may stop the clock if the court determines that the absence was not “brief, casual, and innocent.” These absences are analyzed on a case-by-case basis. See § 10.9 for a more in-depth discussion of what factors are considered in determining whether an absent was brief, casual, and innocent. § 10.23 Hardship for NACARA NACARA applicants must show “extreme” hardship to themselves or a U.S. citizen or LPR spouse, parent, or child. NACARA is much more generous than many of the other cancellationtype forms of relief with respect to the hardship requirement. It is much less stringent than the hardship standard for non-LPR cancellation of removal: Not only is the standard of hardship lower (“extreme” instead of “exceptional and extremely unusual”) but hardship to the applicant him or herself counts, in addition to hardship to U.S. citizen or LPR family members. Moreover, NACARA is unique in that there is a rebuttable presumption that the principal applicant will suffer extreme hardship. See 8 CFR § 1240.64(d). Unlike non-LPR cancellation, the factors that can be considered to establish extreme hardship are established by regulation and are as follows:

10-53

Chapter 10

1. The age of the immigrant, both at the time of entry to the United States and at the time of application for suspension of deportation; 2. The age, number, and immigration status of the immigrant’s children and their ability to speak the native language and to adjust to life in another country; 3. The health condition of the immigrant or the immigrant’s children, spouse, or parents and the availability of any required medical treatment in the country to which the immigrant would be returned; 4. The immigrant’s ability to obtain employment in the country to which the immigrant would be returned; 5. The length of residence in the United States;

6. The existence of other family members who are or will be legally residing in the United States; 7. The financial impact of the immigrant’s departure; 8. The impact of a disruption of educational opportunities; 9. The psychological impact of the immigrant’s deportation; 10. The current political and economic conditions in the country to which the immigrant would be returned; 11. Family and other ties to the country to which the immigrant would be returned; 12. Contributions to and ties to a community in the United States, including the degree of integration into society; 13. Immigration history, including authorized residence in the United States; and 14. The availability of other means of adjusting to permanent resident status. 8 CFR § 1240.58(b). § 10.24 Good Moral Character for NACARA The definition of good moral character for NACARA is the same as for the other forms of relief discussed in this chapter. INA § 101(f) lists the bars to showing good moral character for all purposes under the INA. For a deeper look at showing good moral character, see § 10.4. Although the definition of good moral character is the same as for other forms of cancellation relief, the time period for good moral character is different for NACARA. Some circuits have found that the period in which to assess good moral character for purposes of NACARA ends at time of filing the NACARA application. This is distinct from non-LPR cancellation which is considered a continuing application, and the period for showing good moral character continues until the final administrative decision. Due to decisions from the Courts of Appeals, the good moral character time period in the Eighth and Ninth Circuits covers the seven years prior to the filing of the NACARA application. 140 This means that if an act occurs after the NACARA application is filed that demonstrates a lack of good moral character, this act cannot bar a finding of good moral character in the Eighth and Ninth Circuits. 141 Unfortunately, the other consequence of this reasoning is that those that needed more time to accrue good moral character will not be able to do so. In other words, if someone committed a bad act just before proceedings, she won’t be able to distance herself from that bad act with the passage of time. Instead, the act will permanently be within the period of time she needed to show good moral character. If instead, NACARA is considered a continuing application, she could accrue good moral character up until the time of final decision and overcome an earlier bad act.

Chapter 10

140

USCIS, Changes to the ABC/NACARA Procedures Manual and to the Suspension of Deportation and Special Rule Cancellation of Removal under NACARA Lesson Plan affecting the adjudication of special rule cancellation of removal within the jurisdiction of the Eighth and Ninth Circuit Courts of Appeals, (Mar. 16, 2015), available at www.uscis.gov/sites/default/files/USCIS/Outreach/Changes_to_the_ABCNACARA_Procedures_Manual_and_to_the_Suspension_of_Deportation_and_Special_Rule_Cancellation_ of_Removal_pdf_-_Adobe_Acrobat_Pro.pdf. 141 Cuadra v. Gonzales, 417 F.3d 947 950-52 (8th Cir. 2005).

10-54

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 10.25 NACARA Suspension and Cancellation for Those with Certain Crimes NACARA has heightened requirements for applicants who are deportable or inadmissible because of certain criminal or security grounds. Like the old suspension of deportation as applied to applicants with certain crimes, the NACARA applicant with certain crimes must show: • • • A.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

good moral character for at least ten years following conviction or status that makes the person deportable under crimes ground; ten years continuous presence in the United States; and exceptional or extremely unusual hardship to herself and/or her U.S. citizen or LPR spouse, parent, or child. Ten-Year Suspension

Ten-year suspension is a form of relief for NACARA applicants who are deportable or inadmissible because of criminal or security grounds under former INA sections 241(a)(2), (3), or (4). See 8 CFR §§ 240.65(c), 1240.65(c). This includes all of the criminal grounds of deportability; 142 failure to register; having a conviction for falsification of documents or being the subject of a civil document fraud final order; 143 and any of the national security or terrorist grounds of deportability. 144 B.

Ten-Year Special Rule Cancellation for those with Crimes

Similarly, applicants for special rule cancellation who are deportable or inadmissible under criminal and certain other grounds are subject to the statute’s heightened eligibility standards. 145 A conviction is not required if conduct is sufficient to trigger the ground of inadmissibility or deportability. For example, a person can be inadmissible if the government has reason to believe the person is a drug trafficker, even if the person was never convicted. Note that this rule is like VAWA cancellation—but unlike non-LPR cancellation—in that the conduct alone is considered if it makes the person inadmissible or deportable. The heightened standards apply differently to those who are inadmissible compared with those who are deportable. For those who are deportable, the heightened standards apply in more specific circumstances. The rationale for this distinction is similar to that of the general inadmissibility/deportability framework—the burden is higher for the government to deport someone than to prove that the person should not be admitted. An applicant for special rule cancellation is subject to the heightened eligibility standards if she is inadmissible under INA § 212(a)(2) (the crimes grounds of inadmissibility) or deportable under INA § 237(a)(2) (the crimes grounds of deportability) or § 237(a)(3) (false claims of U.S. citizenship on or after September 30, 1996, failure to register, falsification of documents or having a civil document fraud final order). 8 CFR §§ 240.66(c), 1240.66(c).

142

Former INA § 241(a)(2), former 8 USC § 1251(a)(2). Former INA § 241(a)(3), former 8 USC § 1251(a)(3). 144 Former INA § 241(a)(4), former 8 USC § 1251(a)(4). 145 IIRIRA § 309(f)(1)(a), as amended by NACARA § 203(b); 8 CFR § 240.66(c). 143

Chapter 10

10-55

C.

Good Moral Character

Applicants under both ten-year suspension and ten-year special rule cancellation must satisfy the good moral character requirement. See INA § 101(f). If the applicant has convictions, the ten years of good moral character are counted from the date of the conviction. 146 D.

Hardship

Chapter 10

Ten-year NACARA suspension and special rule cancellation applicants with crimes have the same standard for showing hardship as do current applicants for non-LPR cancellation: exceptional and extremely unusual hardship to a qualifying relative; however, they still benefit from the ability to show hardship to the applicant. See § 10.21 for a discussion of the applicable hardship factors in NACARA.

146

Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

10-56

Tab Position 1

Immigrant Legal Resource Center June 2017

CHAPTER 11 APPLYING FOR CANCELLATION OF REMOVAL (FOR LAWFUL PERMANENT RESIDENTS) UNDER INA § 240A(A) AND THE § 212(C) WAIVER

This chapter includes: § 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11

Introduction: Cancellation of Removal and the Former § 212(c) Waiver ........ 11-1 Overview of Legal Requirements..................................................................... 11-2 Removal Grounds That Can Be Waived by Cancellation of Removal ............ 11-4 Lawful Permanent Resident Status for at Least Five Years ............................. 11-5 Seven Years Continuous Residence after Admission ...................................... 11-8 Never Convicted of an Aggravated Felony .................................................... 11-20 Other Bars to Eligibility ................................................................................. 11-21 Proving That Your Client Merits a Favorable Exercise of Discretion ........... 11-21 Proving Rehabilitation: The Three Story Approach ....................................... 11-28 Preparing the Client for the Hearing .............................................................. 11-30 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings ..................................................................................... 11-32

Elizabeth Murray, a Canadian citizen, has lived in the U.S. as a lawful permanent resident since 1996. She lives with her U.S. citizen spouse and two U.S. citizen children. Beginning in 2000, Elizabeth started hanging out with the wrong crowd. By 2004, she used cocaine regularly. In January 2006, she was arrested and convicted of possession of cocaine. She spent three months in jail, some in a drug rehabilitation program. In 2014, Elizabeth was placed in removal proceedings and charged with being deportable for conviction of a drug offense. § 11.1 Introduction: Cancellation of Removal and the Former § 212(c) Waiver In the above example, Elizabeth is removable from the United States but she may qualify for cancellation of removal. Cancellation of removal under § 240A(a) of the INA offers relief for long-term permanent residents facing removal proceedings because they have been found to be either inadmissible or removable from the United States. Section 240A(a) cancellation of removal was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In some ways, it was intended to replace “section 212(c) relief,” a longstanding form of relief for long-term permanent residents under former INA § 212(c). For cases beginning on or after April 1, 1997, § 212(c) relief was eliminated and cancellation of removal went into effect. (But see § 11.11 below for information about how some permanent residents in removal proceedings still can waive some pre-April 1, 1997 convictions under the former § 212(c).)

11-1

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

This chapter will concentrate on cancellation of removal. There are three reasons, however, that you still need to know something about § 212(c) relief. First, the old § 212(c) cases provide information about the standards for granting discretionary relief. Both cancellation of removal and § 212(c) relief are discretionary forms of relief. Once you have proven that your client is eligible to apply, the heart of the case is convincing the judge that positive factors in the case outweigh negative factors. Congress made it clear that the standards and case law for discretionary decisions in § 212(c) relief should be carried over into cancellation of removal. Second, those few people still in deportation or exclusion cases that began before April 1, 1997 will remain eligible for 212(c) relief, not for cancellation of removal. Third, some permanent residents with convictions from before April 1, 1997—including in some cases aggravated felony convictions—can apply for § 212(c) relief even though they are in removal proceedings, and not deportation or exclusion proceedings. See § 11.11 below for more information on this topic. This chapter is divided into three parts: Part One discusses the rules for statutory eligibility for § 240A(a) cancellation of removal. Part Two discusses how to prove rehabilitation and other positive factors to convince the judge to give relief as a matter of discretion. [This applies both to cancellation of removal and the former § 212(c) relief.] Part Three gives a brief overview of the former § 212(c) relief, and ideas for resources if you are working on a continuing § 212(c) case or trying to assert § 212(c) relief for someone in removal proceedings. PART ONE: LEGAL REQUIREMENTS FOR 240A(A) CANCELLATION OF REMOVAL FOR LAWFUL PERMANENT RESIDENTS § 11.2 Overview of Legal Requirements Cancellation of Removal for lawful permanent residents (LPRs) under INA § 240A(a) 1 is a waiver that allows a removable permanent resident to retain his or her LPR status and avoid removal. It is available to lawful permanent residents in removal proceedings initiated on or after April 1, 1997, the effective date of IIRIRA. Applications for this form of relief are filed only in removal proceedings. 2 LPR Cancellation of Removal replaced former § 212(c) relief. Section 212(c) was eliminated by IIRIRA, but is still available to some permanent residents who were convicted of crimes before April 1, 1997. Section 212(c) is discussed in detail in § 11.11 of this chapter.

1

8 USC § 1229b(a). The application form is Form EOIR-42A, which you can download from the EOIR website at: www.justice.gov/eoir/list-downloadable-eoir-forms. See also Appendix 4-A, which is a sample completed EOIR-42A. 2

11-2

Requirements for Eligibility. The requirements for eligibility for LPR cancellation of removal are: •

Has been a permanent resident for at least five years;

•

Has resided continuously in the U.S. for seven years after having been “admitted in any status,” keeping in mind that the seven years stops upon commission of certain offenses or service of the Notice to Appear;

•

Has not been convicted of an aggravated felony;

•

Has not previously been granted cancellation, suspension of deportation, or § 212(c) relief; and

•

Is not inadmissible or deportable under the Nazi or terrorism grounds, has not persecuted others, and has not had certain types of immigration status relating to alien crewmembers or educational J-visas. 3

In addition to meeting these criteria, the applicant must convince an immigration judge (IJ) that he or she merits relief in the exercise of discretion. The IJ has broad discretion to grant or deny a cancellation case, but is required to weigh the person’s positive equities against his or her bad acts in order to determine whether relief should be granted in the exercise of discretion. 4 Effect of a Grant of LPR Cancellation. The rules governing the effect of former § 212(c) relief also apply to LPR cancellation of removal. Once relief has been granted, the person cannot be charged with being deportable or inadmissible based solely on the conviction. 5 This can change if a new conviction or another adverse event occurs, however. A conviction that has been waived under a previous application for relief can be joined to a second, subsequent conviction to create an immigration penalty, such as being deportable for two moral turpitude convictions. 6 In addition, if the person becomes removable under a new basis, a conviction that was waived through LPR cancellation still can constitute a basis for ineligibility for relief in subsequent removal proceedings. 7 Example: Lester was granted LPR cancellation of removal in 1999 to waive his conviction for possessing heroin. Then he was convicted of two crimes involving moral turpitude, in 2007 and 2009. He was placed in removal proceedings in 2017, charged 3

See disqualifiers at INA § 240A(a), (e). See § 11.6. 5 Matter of Gordon, 20 I&N Dec. 52, 56 (BIA 1989) (“the respondent cannot again be charged with deportability based on the same criminal convictions already waived” after a grant of 212(c)); Matter of Balderas, 20 I&N Dec. 389, 393 (BIA 1991) (the grant of relief lasts indefinitely “unless new circumstances or previously undisclosed facts come to light which give rise to a new basis of excludability or deportability”). 6 Matter of Khourn, 21 I&N Dec. 1041; (BIA 1997); Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993); Matter of Balderos, 20 I&N Dec. 389, (BIA 1991). 7 Matter of Taveras, 25 I&N Dec. 834 (BIA 2012), upheld in Taveras v. AG of the United States, 731 F.3d 281 (3rd Cir. 2013), and see De Hoyos v. Mukasey, 551 F.3d 339 (5th Cir. 2008). 4

11-3

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

with deportability under INA § 237(a)(2) for conviction of two crimes involving moral turpitude after admission. Lester applied for adjustment of status as a defense to removal. He is inadmissible under the moral turpitude grounds, but he can apply for a § 212(h) waiver of inadmissibility to cure the moral turpitude ground. However, according to the BIA and some federal courts, in this new proceeding Lester also is inadmissible for the prior drug conviction, despite the fact that it was waived when Lester was granted LPR cancellation in 1999. That means that Lester cannot adjust status, because the inadmissible drug conviction cannot be waived under INA § 212(h). Note that if Lester were to return from a trip abroad, he would not be held inadmissible at the border based on the drug conviction. Section § 101(a)(13)(C) specifically provides that a conviction waived by cancellation of removal is not a ground of inadmissibility for purposes of admission. 8 But the BIA and courts found that § 101(a)(13)(C) does not control in a new application for adjustment of status. Finally, LPR cancellation of removal, § 212(c), and other waivers will protect against bars to relief based on being deportable or inadmissible for the conviction, but will not protect against bars based simply on having been “convicted” of an offense. 9 For example, a person who “has been convicted” of an aggravated felony on or after November 29, 1990 is permanently barred from establishing good moral character. 10 § 11.3 Removal Grounds That Can Be Waived by Cancellation of Removal LPR cancellation of removal can waive most grounds of either inadmissibility or deportability. It therefore can be used to defend a permanent resident charged with being inadmissible as an arriving alien under INA § 101(a)(13)(C), as well as a permanent resident within the United States who is charged with being deportable. The exception is that LPRs who are inadmissible or deportable under the Nazi or terrorism grounds 11 are not eligible for LPR cancellation. Some LPRs are specifically barred from eligibility for LPR cancellation of removal. They include those who have been convicted of an aggravated felony; 12 certain J visa holders; crewmen who entered after June 30, 1964; and noncitizens who previously received § 212(c) relief, suspension of deportation, or cancellation of removal. 13 Federal courts have held that the bar to eligibility for

8

Matter of Taveras, supra. Matter of Balderas, 20 I&N Dec. 389 (BIA 1991); Amouzadeh v. Winfrey, 467 F.3d 451 (5th Cir. 2006); Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006); Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007). 10 INA § 101(f)(8). November 29, 1990 is the effective date of the Immigration Act of 1990 (IMMACT 90). IMMACT 90 made conviction of an aggravated felony a permanent bar to the ability to establish good moral character. 11 INA §§ 212(a)(3), 212(a)(4), & 237(a)(4). 12 See § 4.5, infra. 13 INA § 240A(c), 8 USC § 1229b(c). See Velasco v. Holder, 736 F.3d 944, 945–46 (10th Cir. 2013) (precluding cancellation of removal where immigrant had previously received suspension of deportation, regardless of the fact that suspension had been granted after the effective date of IIRIRA, April 1, 1997). 9

11-4

people who have been granted § 212(c) relief applies even if both the § 212(c) and cancellation of removal applications are considered at the same hearing. 14 The fact that other specific waivers or exceptions exist for a particular ground of removal does not preclude LPR cancellation from being a potential remedy. For example, LPR cancellation of removal can waive inadmissibility or deportability for false claims to U.S. citizenship and alien smuggling, notwithstanding the fact that there are also specific, but very narrow, waivers for these grounds. 15 Similarly, LPR cancellation of removal can waive inadmissibility or deportability for unlawful voting, notwithstanding that the person charged does not fit within the very narrow exceptions to these grounds. 16 WARNING: A federal conviction for alien smuggling can be an aggravated felony, 17 which is a bar to LPR cancellation. But many people who are charged with being deportable or inadmissible for alien smuggling are never convicted of smuggling in federal court. If they meet the other eligibility requirements for LPR cancellation of removal, these people can benefit from this remedy. § 11.4 Lawful Permanent Resident Status for at Least Five Years To be eligible for LPR cancellation of removal, the applicant must have been “lawfully admitted for permanent residence for not less than five years.” INA § 240A(a)(1). A.

What Does “Lawfully Admitted for Permanent Residence” Mean?

The BIA has held that someone who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under § 240A(a) of the Immigration and Nationality Act. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) citing Monet v. INS, 791 F.2d 752 (9th Cir. 1986), and Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983), 1441-42, cert. denied, Longstaff v. INS, 467 U.S. 1219 (1984). 18 Furthermore, most courts of appeals have held that where a person was not entitled to permanent residence at the time it was granted, regardless of whether fraud or misrepresentation was involved (for example, where permanent residence was granted as a result of the government’s mistake), that person has not been lawfully admitted for permanent residence. See De La Rosa v. United States Dept. of Homeland Security, 489 F.3d 551, (2nd Cir. 2007); Savoury v. United 14

Garcia-Jimenez v. Gonzalez, 488 F.3d 1082 (9th Cir. 2007), Peralta-Taveras v. Attorney General, 488 F.3d 580 (2nd Cir. 2007); Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2007). 15 See INA §§ 212(a)(6)(C)(ii)(II) and 237(a)(3)(D)(ii) [waivers for false claim of U.S. citizenship], and §§ 212(a)(6)(E)(ii) & (iii) & 212(d)(11) and 237(a)(1)(E)(ii) & (iii) [ waivers for smuggling]. See also Chapter 3. 16 See INA §§ 212(a)(10)(D)(ii) and 237(a)(6)(B) and Chapter 3. 17 See INA § 101(a)(43)(N). There is an exception in the case of a first offense if the person smuggled was the parent, spouse, or child of the smuggler. 18 See also Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. 2007), Kim v. Holder, 560 F.3d 833 (8th Cir. 2009), Gallimore v. AG of the U.S., 619 F.3d 216 (3rd Cir. 2010), Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005), Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010), Obi v. Holder, 558 F.3d 609 (7th Cir. 2009), and Segura v. Holder, 605 F.3d 1063 (9th Cir. 2010).

11-5

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

States Atty. Gen., 449 F.3d 1307 (11th Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183, (8th Cir. 2005); Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.1973). 19 One might think that someone who is being charged with deportability as an alien who was not entitled to be admitted at the time of admission under INA § 237(a)(1)(A) may never be eligible for LPR cancellation of removal, since he or she would never have been “lawfully admitted” for permanent residence. However, in Matter of Sosa-Hernandez, 20 the BIA found that an individual who obtained lawful permanent residency by fraud at a time when he otherwise was admissible, who later became deportable for a conviction, and who was charged with being deportable both for the fraud and the conviction, could apply for § 212(c) to waive the conviction when he also filed and was granted a waiver of the initial fraud under the former INA § 241(f) (the predecessor to current INA § 237(a)(1)(H)). The grant of the § 241(f) “cured” his permanent residence retroactively to the date he was initially granted LPR status, so that he met the § 212(c) requirements. Courts have held that this relief does not apply in all scenarios, 21 but the bottom line is that practitioners with clients who obtained LPR status unlawfully and who are otherwise eligible for LPR cancellation of removal, should investigate arguments that the person should be permitted to apply for a waiver under INA § 237(a)(1)(H) in conjunction with the cancellation application to cure their ineligibility for LPR cancellation relief. If the initial grant of LPR status occurred through no fault of the individual, he or she may also apply for a § 212(k) waiver. In any event, unless the government raises the issue that your client lacks “lawful” permanent resident status, you may not want to bring it up. If the government does not raise the issue of ineligibility and provide some evidence to support this claim, the issue is waived. Note that, in addition to the waivers under INA §§ 237(a)(1)(H) or 212(k), someone who is ineligible for LPR cancellation of removal because he was not lawfully admitted to permanent residence can also apply for non-LPR cancellation of removal under INA § 240A(b)(1), if he otherwise meets the requirements. See Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005) and Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003). B.

Counting the Five Years of Lawful Permanent Residence

Unlike the seven years of continuous residence requirement (discussed below at § 11.5), there is no stop-time rule for the five-year lawful permanent residence requirement. Therefore, the five years continue to accrue during the removal proceeding and through at least the administrative appeal. Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); 22 see also Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006). Example: Jorge entered the United States on a tourist visa in 2001, and adjusted status to permanent residency in 2007. He committed and was convicted of a deportable offense in 2011, and was placed in removal proceedings that year. He was ordered removed, but he 19

Holding that a “mistaken admission conferred no status, permanent resident or otherwise” and thus the aliens were not “lawfully admitted.” 20 20 I&N Dec. 758 (1993). 21 See, e.g., Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. 2011); Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. 2010); Matter of Garcia-Linares, 12 I&N Dec. 254 (BIA 1996). 22 Although Matter of Bautista-Gomez is a non-LPR cancellation of removal case, the stop-time rule is the same for both.

11-6

appealed his case to the BIA. In 2012, while the appeal was pending, he reached five years of permanent residency. At that time, he became statutorily eligible for LPR cancellation. He had accrued at least seven years of continuous residence from his admission in 2001 until his seven-year clock stopped in 2011. 23 He reached five years of permanent residency, which is not subject to a clock-stopping provision, in 2012. He moved to remand the case to the IJ to apply for LPR cancellation. 1. Conditional residence A conditional resident is a lawful permanent resident as defined by INA §§ 101(a)(20), 216(a)(1), and 216A(a)(1). Therefore, time accrued as a conditional resident can be counted toward the five years of lawful permanent residence required for cancellation eligibility. 2. Parents and children The Supreme Court held that a child cannot count the parent’s time as a lawful permanent resident, requiring each individual to satisfy the five-year requirement on his or her own. Holder v. Martinez-Gutierrez, 566 U.S. 583 (2012). The Court held that a parent’s time as a lawful permanent resident cannot be imputed to a child who did not become a permanent resident until after the parent, but was residing with the parent in the United States. (The Court similarly found that the parent’s lawful admission, starting the accrual of seven years of continuous residence, could not be imputed to the child; see § 11.5, below.) This decision settled a longstanding split between the Ninth Circuit, which allowed children to impute their residency based on their parents’ time, and the BIA, which did not. 24 3. When does permanent resident status end for this purpose? A permanent resident in removal proceedings continues to be a permanent resident until the final administrative order of exclusion, deportation, removal, or rescission is issued. 25 (If the LPR accrues the five years LPR status within ninety days following the entry of that order, she should be able to file a motion to reopen proceedings to apply for cancellation.) 26 Example: Jane entered the United States as a student in 2005, and adjusted status to permanent residency in 2012. She committed and was convicted of a deportable offense in 2014. She was placed in removal proceedings, and subsequently ordered removed, but she appealed to the BIA. The BIA denied her case in 2016 and she appealed to the court 23

See § 11.5, infra. Compare Matter of Montoya-Silva, 26 I&N Dec. 123 (BIA 2013), reaffirming Matter of Escobar, 24 I&N Dec. 231 (BIA 2007), Augustin v. Attorney General, 520 F.3d 264 (3rd Cir. 2008), and Deus v. Holder, 591 F.3d 807 (5th Cir. 2009) (holding that a parents’ lawful status could not be imputed to a child) with Cuevas–Gaspar v. Gonzales (9th Cir. 2005) 430 F.3d 1013 (imputing a parents’ lawful status to a child who later gained lawful status). 25 8 CFR §§ 1.2 & 1001.1(p). See also Perez-Rodriguez v. INS, 3 F.3d 1074 (7th Cir. 1993), Matter of Gunaydin, 18 I&N Dec. 326 (BIA 1982), affirmed, 742 F.2d 776 (3rd Cir. 1984) and Etuk v. Slattery, 936 F.2d 1433 (2nd Cir. 1991). 26 8 CFR 10003.23(b)(3) only limits use of a motion to reopen to apply for cancellation of removal in some circumstances relating to the “stop-time” rule under INA § 240A(d). That rule governs accrual of the seven years of continuous residence since admission required for LPR cancellation, but it does not govern the requirement of five years as an LPR. See also Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006). 24

11-7

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

of appeals in her jurisdiction. The appeal is still pending in 2017 and she moves for a remand to the BIA because it has now been 5 years since she was granted permanent residence. Her motion for a remand will be denied, however, because her LPR status terminated in 2016 when the BIA issued its final administrative order. At that time she had only four years as a permanent resident. PRACTICE POINTER: ICE has been known to argue that the stop-time rule applies to the five years of lawful permanent residence, in addition to the 7 years of continuous residence requirement. However, the stop-time rule in INA § 240A(d)(1) plainly applies only to the 7 years of continuous residence for LPR cancellation of removal and continuous physical presence for non-LPR cancellation of removal. 27 In addition, the BIA case specifically held that the stop time rule only applies to continuous residence or physical presence. Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006). 28 § 11.5 Seven Years Continuous Residence after Admission To be eligible for LPR cancellation of removal, the person must have “resided in the United States continuously for 7 years after having been admitted in any status.” INA § 240A(a)(2). Continuous residence means that the person maintained the United States as a place of general abode. As discussed below, this includes residence while out of status, as long as the person previously was admitted. A brief trip outside of the United States will not end the period of continuous residency. See, e.g., De Rodriguez v. Holder, 724 F.3d 1147, 1151 (9th Cir. 2013) (finding that a thirteen-day trip to Mexico on advance parole did not end the period of continuous residence). A.

When Does the Seven-Year Period Begin?

The applicant must have resided in the United States for seven years “after having been admitted in any status.” INA § 240A(a)(2). Some events do and others do not count as an admission for this purpose. 1. Admission at the border, parole, unlawful status You may remember that “admitted” is defined in INA § 101(a)(13) as the “lawful entry into the United States after inspection and authorization by an immigration officer.” 29 Some people clearly have been “admitted” under this definition. For example, a person who entered with a tourist or student visa, on a border-crossing card, or with refugee status has been admitted. Likewise, a person who was admitted as a lawful permanent resident after going through consular processing has been admitted. Generally, a person who has been paroled into the U.S. has not been admitted, 30 and cannot count the time between his or her parole and his or her admission as an LPR toward the 7 years of 27

INA § 240A(b). Although Matter of Bautista-Gomez is a Non-LPR cancellation of removal case, the stop-time rule is the same for both. 29 See Chapter 1. 30 See INA § 101(a)(13)(B). 28

11-8

continuous residence. Not all parole is treated the same, however. In the Ninth Circuit, persons paroled as “Special Immigrant Juveniles” (SIJS) can count the date of their SIJS parole as their “admission in any status.” 31 In reaching this conclusion, the court distinguished SIJS parole from general parole and found that SIJS-parolees are a narrow class of juvenile aliens who must meet heightened eligibility requirements and are afforded particular benefits. These special eligibility requirements and benefits show a congressional intent to assist this group to remain safely in the country with a means to apply for LPR status. 32 If the person was admitted to the U.S. in some other status prior to becoming a permanent resident, then fell out of status, and then adjusted status to permanent residence, the entire time period since the admission will count toward the seven years. See Matter of Blancas, 23 I&N Dec. 458 (BIA 2002). In other words, any time after the person’s lawful admission counts toward the seven years, even if the person was residing in the U.S. illegally during part of that time. 33 Example: Sally came to the U.S. on a B-2 Visitor’s Visa in 2005. Her permitted period to visit expired in 2006, but she remained in the U.S. out of status, without ever leaving the country. In 2011, Sally adjusted status to that of a lawful permanent resident. In 2017, Sally potentially would meet the requirements for cancellation of removal because: •

She has been a lawful permanent resident for five years

•

She was admitted in lawful status (in her case a Visitor’s Visa) and

•

She has lived in the U.S. continuously for seven years after having been admitted in any status (in her case, since admission as a visitor in 2005)

2. Entry without inspection, subsequent applications, or adjustment A person who has entered the United States without inspection has not been admitted under INA § 101(a)(13), and therefore cannot count his or her physical presence in the U.S. before adjustment toward the 7 years of continuance residency, no matter how long he or she has been living in the U.S. as an undocumented immigrant. What if the person files an application for some status after an entry without inspection? Here and in the context of similar language in the moral turpitude deportation ground (where a permanent resident is deportable if he committed an offense within five years after “admission”), the BIA has held that a person who entered without inspection is not deemed to have made an “admission” merely because she filed an application for asylum or adjustment of status, or was granted employment authorization. 34 The BIA held that a grant of Family Unity does not count as an

31

Garcia v. Holder, 659 F.3d 1261, 1267–68 (9th Cir. 2011). Garcia v. Holder, 659 F.3d at 1269–71. 33 De Rodriguez v. Holder, 724 F.3d 1147, 1150–51 (9th Cir. 2013) (remaining in the country unlawfully is immaterial to the requirement to be “admitted in any status” because “Congress in 8 USC § 1229b(a)(2) did not include maintenance of status as a prerequisite for relief”) (quoting Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir.2011)). 34 Guevara v. Holder, 649 F.3d 1086, 1094 (9th Cir.2011). 32

11-9

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

admission. 35 The approval of a visa petition in the context of an adjustment of status application also does not create an “admission” for the purposes of cancellation. 36 However, the BIA has acknowledged that a grant of adjustment of status to permanent residency is an admission for some purposes (especially when the person entered without inspection so that there is no other preceding admission), and courts of appeals have agreed. 37 If your LPR client originally entered without inspection and later adjusted status, he or she can only count the time from the date that lawful permanent residence was granted to establish continuous residence under INA § 240A(a)(2). Example: Julie entered the U.S. without inspection in 1998. In 2006 she adjusted status under INA § 245(i). She has never left the U.S. In 2010, she committed and was convicted of a controlled substance offense that made her inadmissible and deportable (and therefore “stops the clock” on the seven years; see below). In 2016 she was placed in removal proceedings. Julie does not qualify for cancellation of removal because she lacks the seven years: •

She was not admitted in lawful status when she entered the U.S. without inspection in 1998.

•

Her admission date is 2006, the date she adjusted her status to that of a permanent resident.

•

She resided in the U.S. continuously for only four years after admission. Her period of continuous residence for this purpose did not start until 2006, when she adjusted status. It ended in 2010 when she committed the offense.

3. Parents and children, Family Unity benefits The Supreme Court has held that a permanent resident parent’s admission cannot be imputed to the parent’s unemancipated minor child who resides with the parent, for the purpose of satisfying the seven years of residence “after admission in any status” required for cancellation. Holder v. Martinez Gutierrez, 566 U.S. 583, 132 S. Ct. 2011 (2012) overruling Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir. 2005); see Matter of Escobar, 24 I&N Dec. 231, 233 (BIA 2007); Matter of Montoya-Silva, 26 I&N Dec. 231 (BIA 2013). In addition, the BIA has held that a grant of Family Unity Program benefits does not constitute an “admission” to the United States for purposes of establishing the requisite 7-year period of continuous residence to be eligible for cancellation of removal. Matter of Fajardo Espinoza, 26

35

Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010). While the Ninth Circuit initially held that Family Unity was an admission for this purpose, it later deferred to the BIA. Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015). 36 Vasquez de Alcantar, 645 F.3d 1097, 1102 (9th Cir. 2011); United States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006) 37 See, e.g., Matter of Rosas, 22 I&N Dec. 616 (BIA 1999); Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011); Martinez v. Mukasey, 519 F.3d 532, 541-546 (5th Cir. 2008); Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Shivaraman v. Ashcroft 360 F.3d 1142 (9th Cir. 2004); Ocampo-Duran v. Ashcroft 254 F.3d 1133 (9th Cir. 2001).

11-10

I&N Dec. 603, 603 (BIA 2015); Matter of Reza–Murillo, 25 I&N Dec. 296 (BIA 2010). 38 This holding extends to people who have been listed as derivative beneficiaries on a parent’s NACARA application. 39 B.

When Does the Seven-Year Period End?

For purposes of LPR cancellation, continuous residence is deemed automatically terminated either by the service of the Notice to Appear, or when the person commits certain offenses, whichever is earlier. INA § 240A(d). This is sometimes referred to as the “stop-time” or “clockstopping” rule for the seven years. Section 240A(d)(1) reads as follows (emphasis added): (d) Special rules relating to continuous residence or physical presence. (1) Termination of continuous period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 239(a), or (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest. Once a noncitizen has been convicted of an offense that stops the accrual of the seven-year period of continuous residence, the clock does not “restart” simply because the noncitizen departs from, and returns to, the United States. Matter of Nelson, 25 I&N Dec 410, 410 (BIA 2011). Once the time is stopped, it is stopped forever. See Briseno-Flores v. Attorney General of the U.S., 492 F.3d 226 (3rd Cir. 2007); see also Baraket v. Holder, 632 F.3d 56 (2nd Cir. 2011). 1. Service of the Notice to Appear “Service of the Notice to Appear” is defined as the date upon which the noncitizen has either been given the NTA in person or the date on which the person has been served by mail, either to himself or to his counsel of record. Implicit in the statute is that the service must have been proper. INA § 239(a); 8 CFR § 1003.13. If the NTA was not properly served, then the improper service should not stop time for the seven years of continuous residence requirement. 40 For example, it is well-established that an in absentia order of removal is not appropriate where the record reflects that the person did not receive, and could not be charged with receiving, the NTA. Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 41 For the same reasons, if a person did not

38

See, Medina-Nunez v. Lynch, 788 F.3d 1103, 1104 (9th Cir. 2015) (deferring to BIA’s opinion in Reza and overruling Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006)). 39 Fuentes v. Lynch, 837 F.3d 966, 968 (9th Cir. 2016). 40 See INA § 239(a)(1) and 8 CFR § 1003.13 on what constitutes proper service of the NTA. 41 See also Matter of Peugnet, 20 I&N Dec. 233 (BIA 1991), Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995) (en banc), and Matter of M-D-, 23 I&N Dec. 540 (BIA 2002).

11-11

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

receive, and cannot be charged with having received, the NTA, you should argue that the stoptime rule for cancellation eligibility should not apply. The BIA has held that any period of continuous residence is deemed to end upon the service of a Notice to Appear on the noncitizen, even if the NTA does not include the date and time of the initial hearing and there is substantial delay between when the NTA was served on the noncitizen and the date it was filed with the immigration court. Matter of Camarillo, 25 I&N Dec. 644, 644 (BIA 2011). However, if the NTA was served on the person but never resulted in the commencement of removal proceedings, it does not stop the period of continuous residence under § 240A(d)(1) (2012). Matter of Ordaz-Gonzalez, 26 I&N Dec. 637 (BIA 2015). 2. Date of commission of the offense Section 240A(d)(1)(B) provides that continuous residence for cancellation eligibility also stops upon “commission” of an offense that meets certain requirements. The BIA has interpreted this provision literally, holding that the clock stops on the date the person actually commits the offense rather than the date of conviction, even where a conviction was necessary for the clock to stop. Matter of Perez, 22 I&N Dec. 689 (BIA 1999). (While courts generally will defer to the BIA’s interpretation, counsel can consider arguments against this reading of the statute, based on the substantial dissent in Perez.) The BIA held that a conviction that is not charged in the NTA still can terminate the seven-year period. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). In that case, the noncitizen was charged with being deportable for convictions of two crimes involving moral turpitude under INA § 237(a)(2)(A)(II), in addition to a false claim of U.S. citizenship under INA § 237(a)(3)(D). He had two other CIMT convictions, which were not mentioned in the NTA. The BIA said that his continuous residency was stopped on the commission date relating to the earlier, uncharged convictions. Therefore, he was found ineligible for cancellation of removal. The BIA held that crimes committed before April 1, 1997 (the date that LPR cancellation came into effect) can stop time for the 7 years of continuous residence and is therefore, not impermissibly retroactive. Matter of Robles, 24 I&N Dec. 22 (BIA 2006); Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). Federal courts are split on this issue, however. Some courts of appeal have upheld the retroactive application of the stop time rule to pre-April 1, 1997 convictions. Martinez v. Mukasey, 523 F.3d 365 (2nd Cir. 2008), Briseno-Flores v. Att’y Gen. of the United States, 492 F.3d 226 (3rd Cir. 2007), Heaven v. Gonzales, 473 F.3d 167 (5th Cir. 2006), 42 and Valencia v. Gonzales, 469 F.3d 1319 (9th Cir. 2006) (holding that retroactive application of the stop time rule to pre-IIRIRA convictions is permissible where the noncitizen was not eligible for any relief from deportation at the time IIRIRA became effective). The Fourth, Seventh, and Ninth Circuits have held that the stop-time rule could not be applied to pre-IIRIRA convictions. 43 The courts distinguished their holdings from the others cited above by 42

Holding that retroactive application of the stop-time rule to pre-IIRIRA convictions is permissible where removal proceedings commenced after the IIRIRA effective date. 43 See Jaghoori v. Holder, 772 F.3d 764, 768 (4th Cir. 2014); Jeudy v. Holder, 768 F.3d 595, 603–04 (7th Cir. 2014); Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006) (holding that retroactive application of

11-12

noting that retroactive application of the stop-time rule would be unjust when the pre-IIRIRA convictions (1) did not make the noncitizens removable, and (2) the noncitizens had, at the time of IIRIRA, obtained the seven years of residence necessary to seek discretionary relief under preIIRIRA law. The courts found that applying the stop-time rule to the pre-IIRIRA convictions “would attach a new and serious consequence to [the] criminal conduct that was completed before IIRIRA took effect.” 44 In each of these cases, the petitioners were charged with being deportable for two crimes of moral turpitude under INA § 237(a)(2)(A)(ii), one which occurred before the effective date of IIRIRA and one after. The first conviction on its own did not render the petitioner removable. 3. Which offenses stop the clock? It takes a close reading of INA § 240A(d)(1)(B) to determine what offenses actually stop the clock. The statute provides that the seven years cease to accrue when: •

The person “has committed an offense referred to” in § 212(a)(2) (the criminal grounds of inadmissibility), and

•

The offense “renders the alien inadmissible” under § 212(a)(2) or “removable” under § 237(a)(2) [the criminal grounds of inadmissibility and deportability] or § 237(a)(4) [security and terrorism grounds].

Both conditions must be met to end the period of continuous residence. The government cannot assert that commission of a deportable offense or inadmissible offense will stop the clock if that offense is not also referred to in § 212(a)(2). This requirement will help some people who are deportable or inadmissible, but whose offense is not included in § 212(a)(2) (see Subsection a, below). As always, the first step is to determine whether the conviction meets any of these requirements under the categorical approach. Are you sure that the particular offense actually is referred to in § 212(a)(2), and actually does make the person inadmissible or deportable under the applicable grounds? Even if the answer appears obvious at first glance, go through the technical steps of the categorical approach, discussed in Chapter 2, §§ 2.4–2.6. The law might be much better than it first appears. After that, we must examine the two requirements of INA § 240A(d)(1)(B). a. The offense must be “referred to” in INA § 212(a)(2) The most commonly charged grounds at INA § 212(a)(2) include the following: • • •

Crimes involving moral turpitude, admission or conviction (but not including offenses that come within the so-called petty offense or youthful offender exceptions; see below) Controlled substance offenses, admission or conviction Engaging in prostitution

the stop time rule is not permissible where the applicant pled guilty before the enactment of IIRIRA and was eligible for discretionary relief at the time IIRIRA became effective. 44 Jeudy v. Holder, 768 F.3d 603–04.

11-13

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

• •

Conviction of two or more crimes with an aggregate sentence imposed of five years or more, DHS has “reason to believe” the person participated in trafficking in controlled substances or, in some cases, benefitted from that trafficking

Section 212(a)(2) grounds that are less commonly charged include: • • • •

DHS has “reason to believe” the person participated in severe human trafficking, or, in some cases, benefitted from that trafficking DHS has “reason to believe” the person engaged or intended to engage in money laundering, or conspired or aided in that Certain diplomats who asserted immunity from criminal prosecution Foreign government officials who engaged in certain forms of religious persecution

What does § 212(a)(2) not refer to? First, it lists grounds of inadmissibility, not deportability. It does not refer to deportation grounds under § 237(a)(2) that have no analogous inadmissibility grounds, such as: • • • • •

Firearms deportation ground Domestic violence deportation ground (which includes conviction of a crime of domestic violence, stalking, or crime of child abuse, as well as being the subject of a court finding of a violation of a domestic violence protective order.) Federal conviction for high-speed flight near the border Federal conviction for failure to register as a sex offender Miscellaneous offenses relating to treason and military service. 45

If the person is deportable under one of the above-cited deportation grounds, but the offense is not also one “referred to” in § 212(a)(2), then the clock will not stop. See Matter of CamposTorres, 22 I&N Dec. 1289, 1294-95 (BIA 2000), where the BIA held that the seven-year clock did not stop just because the respondent was deportable under the firearms ground in INA § 237(a)(2), because “firearms” is not an offense that is “referred to” in INA § 212(a)(2). Example: Say Mr. C.T. was admitted in 2008. In 2010, he was convicted of unlawful use of a firearm. In removal proceedings in 2017, ICE argued that because this offense made him deportable under INA 237(a)(2)(C), it stopped his seven-year clock. The BIA held that it did not, because a firearms offense is not “referred to” in § 212(a)(2). Matter of Campos-Torres, supra. Example: Evelyn was admitted in 2005. In 2011, she was convicted of a deportable crime of domestic violence. In removal proceedings in 2017, ICE argues that because this offense made her deportable under INA § 237(a)(2)(E), it stopped her seven-year clock. This is wrong under Matter of Campos-Torres, because a domestic violence offense is not “referred to” in § 212(a)(2). Example: In these cases, what would happen if the firearms or domestic violence offense also was a crime involving moral turpitude that did not come within the petty offense exception? In that case, would the offense “stop the clock” because it caused 45

See grounds at INA § 237(a)(2)(D).

11-14

deportability under § 212(a)(2), and was “referred to” in § 212(a)(2)? ICE is likely to charge this, but arguably the clock does not stop in this situation. See Subsection b.2, below. Effect of the Petty Offense and Youthful Offender Exceptions. The BIA has held that an offense that comes within the petty offense exception to the moral turpitude inadmissibility ground is not “referred to” in INA § 212(a)(2), and thus never stops the clock (unless the offense happens to come within some other section of § 212(a)(2)). The same rule will apply to an offense that comes within the youthful offender exception. Here the clock will not stop even if the offense makes the person deportable under the moral turpitude ground at § 237(a)(2)(A)(i). See discussion below. Petty Offense Exception. Under § 212(a)(2)(A)(ii)(II), there is an exception to the ground of inadmissibility for a crime involving moral turpitude (CIMT), commonly known as the petty offense exception. This applies to someone who committed just one CIMT and was sentenced to six months or less in jail for that offense, where the maximum potential penalty for that offense is no more than a year. The exception applies even if the person has committed other offenses that are not CIMTs. The BIA held that conviction of a CIMT that falls within the petty offense exception is not a crime that is “referred to” in § 212(a)(2), and therefore such a crime does not stop the clock for the seven years of continuous residence. This is true even if the same conviction makes the person deportable for CIMT. Matter of Garcia, 25 I&N Dec. 332 (BIA 2010). 46 Example: In Matter of Garcia, supra, Mr. Garcia was admitted to the U.S. as a lawful permanent resident in 1999. He was convicted in 2001 of a CIMT that had a maximum possible sentence of one year. He did not receive any sentence other than probation. He was served with a Notice to Appear for removal proceedings in 2006, charged with being deportable for conviction of a CIMT that he committed within five years of admission and that carried a potential sentence of one year. INA 237(a)(2)(A)(i). The Board found that Mr. Garcia had the seven years of continuous residence since admission that is required for LPR cancellation. Mr. Garcia’s 2001 conviction made him removable under § 237(a)(2) (because it was a CIMT with a potential sentence of one year, committed within five years of admission), but it was not an offense “referred to” in § 212(a)(2), because it came within the petty offense exception to the inadmissibility ground. Therefore, the 2001 conviction did not stop the clock on accrual of the seven 46

Matter of Garcia affirms the holding in Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003) regarding the petty offense exception, and thereby resolves a conflict between Matter of GarciaHernandez, and Matter of Deando-Roma, 23 I&N Dec. 597 (BIA 2003). See Matter of Garcia, 25 I&N 335 and n.4. Note that some older federal cases that were resolved without the benefit of the BIA’s decisions have held that an offense that came within the petty offense exception stopped the seven years. See, e.g., BrisenoFlores v. Att’y Gen. of the United States, 492 F.3d 226 (3rd Cir. 2007). Where appropriate, these decisions should be challenged on the grounds that the issue of the petty offense exception was not raised, that the court did not have the benefit of the BIA precedent such as Matter of Garcia, and that the court stated that it would give Chevron deference to BIA decisions in interpreting issues such as the stop-time rule.

11-15

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

years, under INA § 240A(1)(B). The clock only stopped in 2006, when he was served with a Notice to Appear shortly after accruing the seven years. See § 240A(1)(A). Youthful Offender Exception. Although it is less commonly used, the youthful offender exception provides the same benefits as the petty offense exception described above, and it can be a vital defense for youth who were convicted as adults. It provides that a person who has committed a single CIMT is not inadmissible if (a) she committed the CIMT while under age 18 but was convicted of as an adult, and (b) five years has elapsed since the conviction or release from resulting imprisonment. See § 212(a)(2)(A)(ii)(I). b. The offense must “render” the LPR inadmissible under § 212(a)(2) or removable (deportable) under either § 237(a)(2) or § 237(a)(4) To stop the seven-year clock, an offense must be referred to in INA § 212(a)(2), and also must render the LPR inadmissible under § 212(a)(2) or deportable under § 237(a)(2) or (a)(4). See INA § 240A(d)(1)(B). While there is not direct precedent on the subject, the proper reading of this section is that: •

If an LPR is brought into removal proceedings charged with deportability under INA § 237, then in order to stop the clock, the offense must be referred to in INA § 212(a)(2) and make the person deportable under § 237(a)(2) or (a) (4).

•

If instead the LPR is in removal proceedings charged with being inadmissible under INA § 212(a)(2), then in order to stop the clock, the offense must be referred to in INA § 212(a)(2) and must make the person inadmissible under § 212(a)(2).

Most LPRs in removal proceedings are charged with being deportable under INA § 237(a), in proceedings initiated while they are in the United States following an admission. See INA § 237(a). But in some cases, LPRs in removal proceedings are charged with being inadmissible under INA § 212(a), in proceedings initiated at the border or border equivalent, because upon return from a trip abroad they are deemed to be seeking a new admission under INA § 101(a)(13)(C). We will discuss the stop-time rule as it applies in each type of proceeding. 4. Stop-time rule for permanent residents charged with being deportable Where removal proceedings are based on a charge of deportability, there are two questions relating to the LPR cancellation stop-time rule at INA § 240A(d)(1)(B). First, must the offense be referred to in § 212(a)(2) and render the LPR deportable under § 237(a)(2) or (4), or is it sufficient for the offense to be referred to in § 212(a)(2) and render the LPR inadmissible under 212(a)(2)? The best answer is, it must make the person deportable. Second, must the offense trigger analogous grounds (for example, be “referred to” in the moral turpitude section of § 212(a)(2), and make the person deportable under the moral turpitude deportation ground), or can the government “mix and match” grounds (for example, the offense is “referred to” in the moral turpitude section of § 212(a)(2), but it makes the person deportable under the domestic violence deportation ground)? The best answer is that the grounds should be analogous.

11-16

a. In removal proceedings brought under INA § 237(a), in order to stop the clock the offense must be referred to in § 212(a)(2) and make the LPR deportable Section 240A(d)(1)(B) provides that the seven-year clock stops when the LPR has committed an offense “referred to in” INA § 212(a)(2) that “renders the alien inadmissible to the United States” under § 212(a)(2) “or removable from the United States” under §§ 237(a)(2) or 237(a)(4). A permanent resident in the United States is not subject to the grounds of inadmissibility. Instead, she is subject to the grounds of deportability. 47 Therefore, no conviction can “render” the person inadmissible; it can only “render” her deportable. Depending on the facts of the case, this can be a critical distinction in applying the stop-time rule. Example: Maurice was admitted to the U.S. as an LPR in 2006. In 2008 he was convicted of possessing 28 grams of marijuana. That is an offense “referred to” in the controlled substance inadmissibility ground. 48 But the conviction does not make Maurice deportable under the controlled substance deportation ground, because the ground contains an automatic exception for a first possession of 30 grams or less of marijuana. INA § 237(a)(2)(B)(i). See Chapter 2. In 2015 Maurice was convicted of possessing cocaine. ICE charges him with being deportable for the cocaine conviction. ICE asserts that his seven years ceased to accrue in 2008, because the marijuana offense was “referred to” in 212(a)(2) and it “rendered” him inadmissible under § 212(a)(2). Maurice should argue that because he is subject to the grounds of deportability, not inadmissibility, the marijuana offense did not “render” him inadmissible. Because of the 30-grams exception to the deportation ground, it did not render him deportable. Therefore, it did not stop the clock under § 240A(d). Example: Assume the same facts about Maurice, except that he was not convicted in 2008. Instead, during his cancellation hearing he simply admitted that he had used marijuana in 2008. The controlled substance inadmissibility ground includes either conviction or admission of an offense; see Chapter 2. In some cases, ICE is asserting that this type of admission stops the clock because the offense is referred to in § 212(a)(2) and allegedly “renders” the person inadmissible. Here Maurice would have the same defense in the example above: because it did not make him deportable (beyond the 30gram exception, here there was no conviction at all), it did not stop the clock for purposes of proceedings based on INA 237(a). Example: Samantha was admitted to the U.S. as an LPR in 2005. In 2011 she committed and was convicted of a felony crime involving moral turpitude. The offense is referred to in the moral turpitude inadmissibility ground at INA § 212(a)(2) (because it was a CIMT conviction that did not come within the petty offense exception), but it did not make her

47

See INA §§ 204(c)(2), (3), 240(e)(2). INA § 212(a)(2)(A)(i)(II) refers to conviction or admission of an offense relating to a controlled substance. Unlike the deportability ground, it has no exception for a single conviction for possession of 30 grams or less of marijuana. (There are some benefits, however. For example, an inadmissible person might be eligible to apply for a § 212(h) waiver.)

48

11-17

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

deportable under the moral turpitude ground at INA § 237(a)(2) (because she did not commit the offense within five years of admission). See Chapter 2. In 2016 she was convicted of a crime of child abuse. ICE charges her with being deportable on that ground under INA § 237(a)(2)(E)(i). ICE asserts that her seven years ceased to accrue in 2011, because the offense was “referred to” in § 212(a)(2) and it “rendered” her inadmissible under § 212(a)(2). Samantha should argue that because she is subject to the grounds of deportability, not inadmissibility, the 2008 offense did not “render” her inadmissible and therefore did not stop the clock under § 240A(d). In arguing that this is the correct rule, consider that the language of § 240A(d) itself requires us to distinguish between an offense that is “referred to” in § 212(a)(2), and an offense that actually “renders” the person inadmissible under § 212(a)(2) or deportable under § 237(a)(2) or (4). If one subtracts the “renders admissible” language as a separate element of the stop-time rule, then every offense that is referred to in INA § 212(a)(2) would also render the person inadmissible. In that case, all of the language regarding deportation grounds would have no meaning. Other language in § 240A makes a similar distinction. The bar to eligibility for “10-year” nonLPR cancellation applies to persons who have been “convicted of an offense under” INA §§ 212(a)(2) or 237(a)(2), while the bar to VAWA non-LPR cancellation applies to persons who are “inadmissible” or “deportable” under those sections. 49 See INA § 240A(b). In GonzalezGonzalez v. Ashcroft, the Ninth Circuit found that both the “renders” phrase at § 240A(d), and the “inadmissible” and “deportable” phrases at § 240A(b), require that the person must actually be subject to the applicable grounds. It contrasted this with the “referred to” and “convicted of an offense under” language, which it held does not require that. 50 However, there does not appear to be precedent that directly addresses the issue, because there does not appear to be any precedent where an offense that did not cause deportability was held to stop the clock. But at least in some areas, immigration judges are divided. For example, in facts set out in the “Maurice” example above, involving a small amount of marijuana, advocates report that immigration judges in Chicago have held that the clock did not stop, while those in Seattle have held that it did. You should expect that ICE attorneys will argue that continuous residence terminates any time a permanent resident has committed an offense referred to in § 212(a)(2), regardless of whether that person is subject to the grounds of inadmissibility or deportability. ICE might try to rely on Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). There the BIA held that an offense that was not formally charged in the NTA could stop the clock under INA 240A(d), as long as it actually would cause the person to be inadmissible or deportable. We find that the phrase “renders the alien inadmissible … or removable” in section 240A(d)(1)(B) of the Act requires only that an alien “be or become” inadmissible or removable, i.e., be potentially removable if so charged. Consequently, we conclude that an alien need not actually be charged and found inadmissible or removable on the

49

See the bar to 10-year non-LPR cancellation at INA 240A(b)(1)(C), and the bar to VAWA non-LPR cancellation at § 240A(b)(2)(A)(iv). 50 See Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652-653 and n. 3 (9th Cir. 2004).

11-18

applicable ground in order for the criminal conduct in question to terminate continuous residence in this country. Id., at 31 [emphasis added]. However, Jurado stands for the proposition that if the applicable inadmissibility or deportability charge had been included in the NTA, the person could have been found removable. That actually supports the interpretation that if the removal proceedings were premised upon a charge of deportation, only a deportability ground could be alleged in the NTA. A person cannot be “rendered inadmissible” as defined in § 240A(d)(1) unless he or she is also subject to the grounds of inadmissibility, and that “potentially removable” means that if charged under that ground, the charge would be sustained. Use Matter of Garcia 51 and Matter of GarciaHernandez 52 to support this argument. 5. To stop the clock, the offense must come within analogous inadmissibility and deportability grounds, e.g., the moral turpitude or controlled substance grounds In order to stop the clock, must the offense trigger analogous grounds (for example, be “referred to” in the moral turpitude section of § 212(a)(2), and make the person deportable under the moral turpitude deportation ground), or can the government “mix and match” grounds (for example, the offense is “referred to” in the moral turpitude section of § 212(a)(2), but it makes the person deportable under the domestic violence deportation ground)? Example: Herman entered the U.S. without inspection and lived in undocumented status for many years. Over time he was convicted of DUI’s and other offenses that were not removal grounds, and he received in total more than four and a half years in sentences for all convictions. In 2008 he became a permanent resident through consular processing. In 2012 he was convicted of a deportable crime of domestic violence and sentenced to six months in jail. Now Herman has a lifetime total of sentences imposed of at least five years, for at least two convictions. This is an inadmissibility ground, described at INA § 212(a)(2)(B). Herman does not leave the U.S. In 2017, ICE charged Herman with being deportable under the domestic violence ground. It also charged that he was not eligible for LPR cancellation, for lack of the seven years. His first admission was 2008, and ICE charged that his 2012 conviction stopped the seven-year clock because it was an offense “referred to” in § 212(a)(2) (as two or more convictions with an aggregate five-year sentence) that rendered him deportable under § 237(a)(2) (as a deportable crime of domestic violence). Are they wrong? Counsel can investigate the argument that a careful reading of Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) prohibits this. In Campos-Torres, the Board held that the clock did not stop when the respondent was convicted of unlawful use of a firearm, which made him deportable under the firearms ground in INA § 237(a)(2). It is important to note that several of the grounds of deportability found in section 237(a)(2) of the Act are referred to in section 212(a)(2) of the Act, whereas others, such as the ground set forth in section 237(a)(2)(C), are not. … Accordingly, we find that because the respondent’s firearms offense, which rendered him deportable under section 51 52

25 I&N Dec. 332 (BIA 2010). 23 I&N Dec. 590 (BIA 2003).

11-19

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1). Id. at 1293, 1295. 6. Stop-time rule for permanent residents charged with being inadmissible A permanent resident who returns from a trip outside the United States usually is deemed not to be seeking a new admission. Therefore removal proceedings based on inadmissibility cannot be brought. However, if officials can prove that she comes within one of the exceptions listed at § 101(A)(13)(C), then she is considered to be seeking an admission, and she can be charged in removal proceedings for being inadmissible. 53 Among other defenses to removal, the person can seek LPR cancellation. In this instance, ICE will charge that the clock is stopped by commission of an offense “referred to” in § 212(a)(2) that renders the person inadmissible under § 212(a)(2). INA § 240A(d)(1)(B). It appears that, if the person is in removal proceedings based on a charge of inadmissibility, any offense “referred to” in § 212(a)(2) also would render the person inadmissible under § 212(a)(2). As discussed above, an offense that comes within the petty offense or youthful offender exceptions to the moral turpitude inadmissibility ground is not an offense “referred to” in § 212(a)(2). § 11.6 Never Convicted of an Aggravated Felony Section 240A(1)(A)(3) bars anyone who has been convicted of any aggravated felony from cancellation of removal. This is an extremely harsh rule, because the term “aggravated felony” is both very broadly defined in INA § 101(a)(43), and is also retroactive to any crime committed at any time in a person’s life, no matter how long ago, and no matter whether the offense was a deportable offense at the time it was committed. 54 Chapter 5 summarizes what offenses constitute aggravated felonies under INA § 101(a)(43). As always, it is important to remember that with a few exceptions the beneficial “categorical approach” applies in determining whether a conviction is an aggravated felony. This analysis, as set out by the Supreme Court, can result in surprising wins, and a great deal of adverse precedent has been overturned. To competently represent the client, counsel must examine the conviction using this analysis. See discussion and instructions for performing the categorical approach in Chapter 5, §§ 5.5–5.7. If the IJ finds that the offense is an aggravated felony, she will find that the immigrant is not eligible for LPR cancellation of removal. Be prepared to appeal an incorrect finding. Also, consider what other relief might not be barred. For example, an aggravated felony that does not involve drug trafficking might not bar an application for adjustment of status coupled with a § 212(h) waiver. If the conviction was from before April 24, 1996, the conviction might be subject to § 212(c) relief. (Or, if the conviction was between April 24, 1996 and April 1, 1997 and the LPR is charged with inadmissibility.) A few other forms of relief are not absolutely barred by 53

See Chapter 1, § 1.3, Subsection B. The current definition of what constitutes an aggravated felony in INA § 101(a)(43) was expanded under IIRIRA, and made applicable to convictions before, on, or after IIRIRA’s effective date of April 1, 1997.

54

11-20

an aggravated felony, including withholding of removal, the Convention Against Torture, and a U Visa. § 11.7 Other Bars to Eligibility Under INA § 240A(c), cancellation of removal is not available to the following people even if they were not convicted of an aggravated felony: a. People who already have received cancellation of removal, suspension of deportation, or § 212(c) relief. b. People who persecuted others, or are inadmissible or deportable under the anti-terrorist grounds. c. Crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors (those who either received graduate medical education or failed to satisfy their two-year requirement). The most important provision for the majority of our clients is that anyone who was ever granted suspension of deportation, § 212(c) relief or cancellation of removal in the past does not get a “second chance.” Be sure to find out how your client became a permanent resident. This provision is especially unfair for people who received suspension. For example, if it turns out that 15 years ago your client got a green card after winning suspension of deportation, he or she is not statutorily eligible to apply for cancellation of removal. PART TWO: DISCRETION -- PERSUADING THE JUDGE TO GRANT THE RELIEF § 11.8 Proving That Your Client Merits a Favorable Exercise of Discretion A.

The Standard for Exercising Discretion

Once the applicant has proven he or she meets all of the eligibility requirements for cancellation of removal—and that none of the mandatory bars apply—the case has really just begun. Now you must convince the immigration judge that your client merits a favorable exercise of discretion. See INA § 240(c)(4)(A)(ii). Congress made it clear that the standards and case law for discretionary decisions in § 212(c) relief should be carried over into cancellation of removal. In addition, in Matter of C-V-T, 22 I&N Dec. 7 (BIA 1998), the BIA ruled that the general standards for determining discretion for § 212(c) cases that were developed in Matter of Marin, 16 I&N Dec. 581 (BIA 1978) and other § 212(c) cases are applicable to discretion under LPR cancellation of removal cases. Therefore, you will be looking to § 212(c) cases for guidance. In Matter of Marin, supra, the BIA set the standard for adjudicating former § 212(c) cases, requiring that immigration judges weigh both positive and adverse factors in a permanent resident’s life in order to determine if a favorable exercise of discretion is warranted. As the BIA put it: The exercise of discretion in a particular case necessarily requires a consideration of all the facts and circumstances involved. There must be a balancing of the social and

11-21

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

humane considerations presented in the alien’s favor against the adverse factors evidencing his undesirability as a permanent resident. Matter of Marin, supra, at 584. Factors identified in Matter of Marin as relevant include: Favorable Considerations: • • • • • • • • •

Family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character.

Adverse Considerations: • • • •

The nature and underlying circumstances of the exclusion or deportation ground at issue, The presence of additional significant violations of this country’s immigration laws, The existence of a criminal record and, if so, its nature, recency, and seriousness, and The presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

Matter of Marin, supra, at 584-85. Other relevant factors that have been identified in case law include the pregnancy of the applicant or the applicant’s partner, 55 the likelihood of persecution in the home country, 56 and particularly the existence of U.S. citizen children. 57 However, some cases have given less weight to positive factors that arose after a final order or after the person became deportable. See Matter of Correa, 19 I&N Dec. 130, 134 (BIA 1984); Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992). 1. Difference from former § 212(c) The factors to be considered in cancellation of removal cases do differ in one significant respect from the former § 212(c) cases. There is no longer a requirement that an applicant demonstrate unusual or outstanding equities. Instead, the BIA has held that the IJ should weigh the favorable and adverse factors and determine whether the totality of the circumstances indicates that a 55

Drobny v. INS, 947 F.2d 241 (7th Cir. 1991). Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992). However, in Matter of D-, 20 I&N Dec. 915 (BIA 1994) the BIA held that IJ may consider general country conditions but did not err by refusing to admit asylum declarations. 57 Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995). 56

11-22

favorable exercise of discretion is warranted. Matter of Sotelo, 23 I&N Dec. 201 (BIA 2001); see also Dave v. Ashcroft, 363 F.3d 649, 651 (7th Cir. 2004). Nevertheless, it is worth looking at some of the old cases that dealt with unusual and outstanding equities, if only to distinguish your own case or to show that even though unusual and outstanding equities are not required, your client’s equities meet that standard. 58 2. The immigration judge and/or the BIA must explain the basis for the decision in the opinion Matter of Marin, supra, not only set forth the standards for adjudicating former § 212(c) cases. It also required that immigration judges articulate the basis for their opinions in the decision. Matter of Marin, at 585. In addition, courts have overturned denials of former § 212(c) relief where the immigration judge or BIA failed to explain the basis for the negative determination or failed to show that all relevant factors were considered. Hazzard v. INS, 951 F.2d 435 (1st Cir. 1991), Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992), Cortes-Castillo v. INS, 997 F.2d 1199 (7th Cir. 1993); Tipu v. INS, 20 F.3d 580 (3rd Cir. 1994); Georgiu v. INS, 90 F.3d 374 (9th Cir. 1996). The good news about the factors that may be considered in a cancellation case is that they are very broad, and that they are not necessarily limited only to those factors identified in case law. In fact, Matter of Marin called for immigration judges to weigh all the facts and circumstances involved in the case. Id. at 584. In addition, unlike inadmissibility waivers, hardship to the applicant himself, as well as family members, his community, his church, his employer, etc. are all relevant. Practitioners should therefore delve into their client’s histories and social circumstances to unearth as much detail as possible to support a favorable exercise of discretion. The downside to this balancing test is that no matter how many equities a client has, if there are serious adverse factors involved, such as a history of violence, an immigration judge will likely deny relief in the exercise of discretion. B.

Proving That Your Client Merits a Favorable Exercise of Discretion

As we saw in Chapter 1, applicants for discretionary relief are required, under INA § 240(c)(4)(A)(iv) to demonstrate that they merit a favorable exercise of discretion. In addition, they are also required, under INA § 240(c)(4)(B), to submit information or documentation to support the application and to corroborate testimony if required by an immigration judge (unless they can show they don’t have it or can’t reasonably obtain it). Given these stringent requirements, it is incumbent upon practitioners to work with clients to obtain the best evidence possible, and to address each and every factor identified in Matter of Marin, supra, and subsequent case law specifically, in addition to any unusual positive or sympathetic circumstances that you discover about your client. Addressing the factors identified as relevant in the case law includes the negative factors. While you want to emphasize your client’s equities, you cannot ignore adverse factors, and sometimes it makes sense to introduce negative factors, so as to diffuse them and diminish their potential significance.

58

See Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988).

11-23

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

Example: Frank has been a permanent resident for many years, but is now in removal proceedings because of a domestic violence offense. There is also evidence that he was convicted of drunk driving, which is not a deportable offense, but is nonetheless an adverse factor in his case. Do you want to bring it up? Let’s say Frank used to have drinking problem and would become violent when drunk. However, now he goes to AA and has maintained a clean record. He has a good report from his probation officer. In this case, you should bring up the drunk driving, because it ties into the very positive factor that he doesn’t drink anymore, and that his drinking is what brought him to commit a deportable offense, and that he is now rehabilitated. What if Fred has not been quite so clean? Should you bring up his one conviction for drunk driving? This is a closer call. A single drunk driving offense does not necessarily create an inference that a person is a chronic alcohol abuser. Nevertheless, the ICE attorney could bring it up in such a way as to make it look worse than it really is. It might be worth it to have Fred testify about it at the hearing, to show that it was only one offense, no one was hurt, he’s sorry he did it, etc. If Fred “comes clean,” he may be viewed as more credible by the immigration judge. If he testifies about what a fine human being he is, and yet he’s failing to disclose a conviction, his credibility might be damaged. In any event, the conviction will be on his fingerprint report, so it is likely to be brought up by either the ICE attorney or by the immigration judge. 1. What kind of evidence should you submit? Here are some suggested forms of evidence to submit in support of either a cancellation of removal or former § 212(c) application: •

A declaration from your client is essential, though not sufficient by itself, to win a case. In it, your client should describe in great detail how he lives, what his life is like, and how it would change dramatically for the worse if he were to be deported. The declaration should address the offense that made the client deportable, and demonstrate how he has learned his lesson and/or has been rehabilitated. However, be careful to check and double-check all details, and make sure to go over the declaration with your client during your hearing preparation to make sure he remembers all the details. Otherwise, ICE could use the declaration to impeach your client’s credibility.

•

Declarations from other family members, especially spouses, as to the importance of the applicant to them and how (if true) he has become rehabilitated. As with the applicant’s declaration, make sure to check all details and prepare each witness well for testifying to avoid having them impeached on cross-examination.

•

Declarations from people with authority who know your client, such as a pastor, employer, landlord, or teacher are also very helpful if they can show a better side to his nature or some quality such as artistic talent, skill, a good work ethic, interest in learning, etc.

•

Remember that witnesses must be available for cross-examination, so that even those who testify by declaration must be available, at least by telephone, for the hearing. Make sure that they are available.

11-24

•

Psychological evaluations of your client and his family are also very important to establish the degree of fear, grief, and psychological distress your client’s deportation would cause himself and his family. It’s not enough for clients and their families to declare they would be traumatized by the applicant’s deportation; you need documentation of how traumatized they would be. All professional witnesses must include curriculum vitae demonstrating their qualifications to testify as expert witnesses. Needless to say, the expert witness must be prepared to testify both as to his or her expertise and to the particular details in the report about your client and his family.

•

If your client or his family members have medical conditions that would be adversely affected by the stress of deportation and/or treatment is inadequate or unavailable in the home country, evidence documenting both the conditions and the availability of treatment in the home country should be obtained. These can often be found on a general Internet search. 59

•

If your client would be subject to adverse political and/or economic conditions in the home country, any and all evidence documenting the political and economic conditions in the home country should be obtained. 60

•

Evidence of rehabilitation is a very important factor. Evidence of successful completion of probation, or of prison education programs, or of counseling such as domestic violence counseling, should be submitted. 2. Addressing specific factors a. Years as a permanent resident

The length of your client’s permanent residence is an important factor to be considered. Matter of Marin, supra. If your client has been an LPR from a very early age, stress that in your evidence. United States v. Figueroa-Taveras, 228 F. Supp. 428 (S.D.N.Y. 2002). 61 Show how Americanized your client is, and how returning him to a country that he barely knows would be a psychological shock. Do this through evidence from a psychiatrist or psychologist, in addition to having your client talk about his sense of identity with American culture in his declaration. Remember that long-term permanent residence has been identified as an outstanding equity, and make sure the immigration judge is aware of this. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). If your client has not been an LPR for very long, stress how much LPR status means to him, for example how long did he have to wait till he became an LPR (this is particularly relevant to former refugees) and how much he has become acculturated to this country despite the short

59

Helpful websites for determining the availability of healthcare in different countries: the World Health Organization: www.who.int; and the Center for Disease Control: www.cdc.org. 60 Documentation of political, human rights, and economic conditions can be found on the website for the University of Minnesota’s Human Rights Library at: https://www1.umn.edu/humanrts/. 61 212(c) granted where respondent’s equities, including 33 years in the U.S. since the age of four, his work history and the fact that all of his family were in the U.S., found to outweigh evidence of a lengthy prison record.

11-25

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

length of his LPR status. You can also emphasize family and community ties in the U.S. if they exist and the lack thereof in the home country. b. Hardship to the applicant What is your client going to lose by being deported? How will his life be impacted? How and where does he live now and what are the prospects for change if he goes back to his home country? Will he be able to find a job? Does he have the psychological skills to cope with a major change? What is his biggest fear about the prospect of being deported? Does he speak, read, and write the language of his home country? Will his family go with him? Does he have family in his home country? Who are they and how well does he know them? Would they be able to help him if he went back? What are conditions in his home country like? Is there economic deprivation, violations of human rights, imprisonment of criminal deportees, political turmoil, natural disasters, lack of adequate sanitation, lack of medical care? All of these questions should be asked of your client to get him thinking about this and articulating how he would suffer from deportation. c. Remorse, rehabilitation While case law has stated that remorse and rehabilitation is not a prerequisite to relief even if the person has a criminal record, unless the crime is recent and serious, as a practical matter if you can show evidence of remorse or rehabilitation, you should do so. See Matter of Arreguin, 21 I&N Dec. 38, 40 (BIA 1995); Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Edwards, 20 I&N Dec. 191, 196 (BIA 1990); 62 Matter of C-V-T-, 22 I&N Dec. 7, 12 (BIA 1988). This can be in the form of a probation report, prison record, as well as testimony and declarations of witnesses who are in a position to know, such as close family members. Moreover, if you can get ICE to stipulate that your client is rehabilitated, the immigration judge is bound by that stipulation. Rarogal v. INS, 42 F.3d 570 (9th Cir. 1994). Case law has also established that even a person in custody can show rehabilitation. See Matter of Salmon, 16 I&N Dec. 734 (BIA 1978), Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995); Georgiu v. INS, 90 F.3d 374 (9th Cir. 1996). The BIA held that despite a person’s current incarceration, acceptance of responsibility and achievements while in prison, such as voluntarily pursing GED studies, having no prison infractions, and being involved in church activities are favorable indicators of efforts at rehabilitation that should be considered. Matter of Arreguin, supra. However, if your client is still in custody it will be much more difficult to show rehabilitation than if he has had time to return to normal life. Evidence showing rehabilitation can include the lack of additional crimes, enrollment in and attendance of rehabilitation programs, statements of remorse, and letters of good character. Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993), Georgiu v. INS, 90 F.3d 374 (9th Cir. 1996).

62 Matter of Edwards corrected prior case law that may have been construed to require rehabilitation when it held that Matter of Marin, supra, “… [H]as been interpreted in some cases as though a clear showing of reformation is an absolute prerequisite to a favorable exercise of discretion in every case involving an alien with a criminal record. To the extent that this language may be read as creating an absolute prerequisite to a favorable exercise of discretion, we withdraw from it.” Edwards, 20 I&N Dec. at 196.

11-26

d. What if your client insists he is innocent of the crime in question? A Seventh Circuit case holds that a person’s refusal to acknowledge guilt, by itself, cannot be considered evidence of a lack of rehabilitation. Guillen-Garcia v. INS, 999 F.2d 199 (7th Cir. 1993). 63 However, in the Sixth Circuit, a court found that the petitioner’s insistence that only her co-defendant was guilty of the drug crime she was convicted of was a negative factor, tipping the balance in favor of a denial of relief. Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1993). As a practical matter, it is risky to insist on innocence, because immigration judges are not permitted to behind the record of conviction to determine guilt or innocence, and a failure to acknowledge guilt could be construed as a lack of credibility as well as a lack of remorse. See Matter of Roberts, supra, Matter of Contreras, 18 I&N Dec. 30 (BIA 1981). Moreover, lack of rehabilitation can be weighed against your client. Matter of Roberts, supra; see also PalaciosTorres v. INS, 995 F.2d 96 (7th Cir. 1993). Sometimes clients are pressured into pleading guilty to crimes that they may not have committed by their criminal defense attorneys and/or state court judges. However, once someone makes an admission of guilt by entering a plea, immigration judges must accept that the person was guilty of the crime unless the conviction is overturned. Matter of Roberts, supra, and Matter of Contreras, supra. Therefore, if your client insists he was innocent, you need to explain that insisting on his innocence in immigration court could backfire, and cause the judge to conclude that your client is not credible. Nevertheless, even though immigration judges must accept the fact of the conviction as proof of a person’s guilt, at least one circuit court has found that this does not prevent immigration judges from ascertaining the context in which a criminal act occurred or from accepting evidence about mitigating circumstances which may surround a conviction. Gouveia v. INS, 980 F.2d 814 (1st Cir. 1992). So mitigating factors are relevant and should be presented, but an out and out declaration of innocence may be dangerous for your client. If your client’s offense was committed when he was a teenager, and/or under the influence of others with whom he no longer associates, that could be a mitigating factor. If he committed the offense (such as theft) because he was destitute, and he needed money because of a family member’s illness, for example, that’s another mitigating factor that should be presented. If she committed the offense under duress from a spouse or partner, e.g., domestic violence situation, this is another mitigating factor that should be presented. It is important when there is a criminal record to explore the possible motives for the crimes in the first place so that you can present them as mitigating factors. e. Other relevant factors Because these and other factors that are relevant to LPR Cancellation of Removal and § 212(c) applications, such as family separation and hardship, are also relevant to other forms of relief from deportation that are covered in this book, they are addressed in detail in Chapter 10.

63

Petition for Writ of Certioari to the Supreme Court denied: 516 U.S. 1073; 116 S.Ct. 775 (1996).

11-27

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

§ 11.9 Proving Rehabilitation: The Three Story Approach As we have discussed, the judge must balance all positive and negative factors in making the decision to grant or deny § 240A(a) cancellation. In cases where the applicant is in removal proceedings because of a criminal conviction, rehabilitation is probably the single most important element in this decision. While the extent of rehabilitation is significant, the BIA, however, has held that rehabilitation is not a prerequisite for a grant of cancellation of removal. 64 To show rehabilitation the client must demonstrate that she has changed from the kind of person she was when she committed the crime. She must convince the judge that she will not commit any more crimes. One way to explain this change to a judge is the “three story approach.” In this approach the client and paralegal present three stories as follows: 1) a story showing the client’s past life when she committed the crime; 2) a story expressing the client’s remorse for her wrong doings; and 3) a story providing a positive and different picture of the client’s present life. The purpose of the “three story approach” is to show that the circumstances that caused the client to become involved in crime no longer shape her life. Only your client knows what these factors are. You can suggest factors, which have been present in other cases. Ultimately, however, it is your client’s story that matters. Listen to your client, his family and friends to develop the three stories. Don’t be concerned if the parts of the stories overlap. Note that in many cases, applicants for § 240A(a) relief will not be released on bond and will have to prepare their cases from jail. This, of course, makes it much more difficult for the person to demonstrate his “new life,” as well as to collect evidence and get support from friends. It is crucial that the applicant, his family, and any support network that he has (except his old “bad” friends) take responsibility for the case to overcome this challenge. A.

Story 1: The Applicant’s Past Life

The first story presents the reasons why the client became involved in crime. For example, for many people the pressure of the first years in a new culture makes life very difficult. People may make friends with “undesirable types.” The isolation and alienation of life in urban America may contribute to joining a gang or using drugs. Many recent immigrants face serious economic pressure. A person who in less stressful circumstances would never consider the option may see selling drugs or stealing as a way out. You and your client should expose these negative factors. It is a good idea to stress that these factors no longer exist. Although you must be honest, try not to tell the story in such a negative way that the judge will think the client can never be rehabilitated or that all immigrants have these problems. B.

Story 2: Remorse for Past Mistakes

In the second story, the client shows remorse for past wrongs. Recognizing mistakes and making a commitment to a new and changed life are good evidence of the client’s rehabilitation. Often

64

See Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

11-28

the client may want to admit to the immigration judge that she committed the crime and is sorry for having done it. She must understand that she was wrong and made a mistake. WARNING: You and your client should think hard before admitting to a crime that she did not commit, or a crime for which she has not been arrested or convicted. Although it does not occur often, things that your client says or admits to in a deportation hearing could be used in a future criminal case. When admitting to the immigration judge that they were wrong, clients often talk about how going to prison changed their lives. Clients say that whatever they gained from committing a crime is not worth losing personal freedom and contact with loved ones. They say prison gave them time to think about their actions and to recognize the harm they have caused themselves and others. When a judge hears these things, it helps convince her to grant the waiver. C.

Story 3: The Client’s New Life

In the third story, the client shows new influences in her life. Stable family life, relationships with new friends who have not been in trouble with the police, and steady employment are typical factors to present. Parts of a client’s life that are boring or unimportant can be presented to the judge as positive factors. For example, spending time at home, eating meals with the family or watching television demonstrate that the client is not out on the street. Spending time with family and making new friends shows that the client has developed new and positive attitudes. Again, proving this while the client is in detention is challenging but not impossible. The client can present hopes and plans for her future in the United States, and what she has done to begin achieving them. These goals show that the client has a new direction in life. Your client also should state the importance of remaining in the United States and the hardship she and her family would suffer if she were deported. Showing hardship is very important and is similar to showing hardship for waivers of inadmissibility or cancellation of removal for nonpermanent residents under INA § 240A(b)(1). 65 Example: Francois, a lawful permanent resident from France, was convicted for grand theft and possession of cocaine. He was sentenced to six months in jail for the theft and three months for the drug possession charge. Now he is applying for § 240A(a) relief. Lupe, the legal worker, explained the requirements for a waiver to Francois and his family. With the law in mind Francois, his family and Lupe decided to tell his three stories this way: Story 1: Francois and his family started having financial problems three years ago when his wife Giselle became disabled. Francois began to steal small items for the house, and then began to steal more expensive articles to sell to make money. He became depressed and began to use cocaine and began not showing up for work. He was arrested when he tried to steal an expensive leather jacket. Cocaine was found on him at the arrest. Story 2: After spending several months in jail and attending drug-counseling programs, Francois now admits he had a drug problem. He took lots of time to think about his life 65

However, the hardship standard for cancellation of removal for nonpermanent residents under INA § 240A(b)(1) is much more difficult to meet.

11-29

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

when he was in jail. He admits that he jeopardized the well-being of himself and his family and says he will never do it again. Giselle and his son visited him regularly in jail. While he loved seeing them, he hated putting them through this and swears he would never do such a thing again. Story 3: Francois’ life has changed. He and Giselle have communicated with his employer, who has decided to offer him his job back. The family finances are under control. He wants to spend lots of time with his son. Before he went to jail, even when he was having drug problems, he always kept a good relationship with his son. They do homework together, play ball at the park, and watch television. Francois and his son are absolutely devoted to each other. Francois will not associate with his drug user friends and wants to spend most of his time at work or at home with his family. People who knew Francois before his troubles began will submit affidavits, one of them may testify. These people will say that Francois ignored them when he ran with his drugusing friends. These old friends now say that Francois has called them from jail, and he is a changed man. He has rekindled these old friendships. Francois also can discuss his goals. He wants to continue drug therapy and plans to continue to go to Narcotics Anonymous once a week for many years to come. His family wants to save money to buy a house. The applicant’s rehabilitation is probably the single most important issue in § 240A(a) cases. The “three story approach” is one of the clearest and most effective ways to demonstrate to the judge that the client has been rehabilitated. One can use letters of support to show the judge that the client has changed. § 11.10 Preparing the Client for the Hearing For the most part, whether the judge grants § 240A(a) cancellation of removal will rest on the facts of any given case. Because only the client knows the facts of her life, legal workers must work in partnership with clients to prepare and present § 240A(a) cases. The first step is to explain the law to your client. This means making sure she understands the purpose of the waiver as well as the requirements for it. For example, when your client understands that these waivers are given to people who are not likely to be in trouble again, she can understand why it is important to show rehabilitation and remorse. This understanding will help your client know what facts of her life she should tell you about, and which she will need to present to the judge. There are several ways to explain the law to your client. You can explain that a § 240A(a) waiver is like a pardon for past mistakes. The judge decides whether the person deserves the pardon. To make this decision, the judge balances the negative factors against the positive ones. During the interview, you might draw for the client a picture of scales to symbolize this balancing so the client can visualize the process. If the judge is convinced that the negative side weighs more, he will deny § 240A(a) relief. If the judge thinks the favorable side weighs more, he will grant the waiver.

11-30

When you explain the law clearly, the applicant can see why she needs to present as many positive considerations as possible—in order to “tip the scales.” You can help by listing some things that are generally considered positive factors. See § 11.8. Many of these positive considerations might not exist yet, especially for people who have recently been released from jail. This can be discouraging. Remember, however, that you and your client might have five, ten, even fifteen months or more before the merits hearing. During this time your client can work hard to develop these positive factors in her life. Example: Robert is a lawful permanent resident from Canada. He just served eight months in jail for armed robbery. Robert was transferred directly from state prison to ICE custody when his term ended. At the time of his master calendar hearing, the only proof of rehabilitation he had was his prison record. Robert is released on bond and his merit hearing is set for ten months later. Since his legal worker explained the law of § 240A(a) waivers to him, Robert knows he has to work hard so he can prove to the judge that he has been rehabilitated, and that the positive factors outweigh the negative in his case. Robert sets out a program for himself. He moves in with his mother, a lawful permanent resident, and helps her out around the house. He goes to church with her regularly and they have breakfast together after mass on Sunday. He goes to the church group for young adults. He gets a steady job and helps his mother out with the bills. Through these actions Robert hopes to convince the immigration judge that he will not be in trouble again and that his removal from the U.S. would result in extreme hardship to his mother and to himself. If the client is not released on bond, the situation obviously is much harder. This takes real dedication on the part of the client and his family and friends. Example: Let’s say Robert is not released from jail custody. He still can work on his case. If he learned or accomplished anything in jail, he can describe it and request a letter from the jail minister, counselor, or even a guard or supervisor. Robert can get on the phone and call his old friends, his old employer, and the minister at the church. If Robert’s mother supports him, she can visit these people and plead with them to offer Robert a job or write a letter for him. These people can write about how Robert was before he “went bad,” how much his mother needs and wants him, and how they believe that he will rehabilitate himself and should be given a second chance. There are other things clients can do to help prepare their cases. They can make lists of the positive and negative factors in their lives. It generally boosts your client’s morale to list the positive factors first. Your client can outline the three-story approach explained in § 11.9. All of these tasks strengthen the case. First, the facts of the case will be stronger because your client has understood the law and has been encouraged to tell you everything about his case that is relevant. Second, your client will do a better job as a witness because he will understand what needs to be proved. A well-prepared client is less likely to be surprised by questioning from the ICE attorney or the judge. Third, having helped build his case will give your client a sense of confidence and control over his life.

11-31

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

PART THREE: APPLYING TODAY FOR THE FORMER § 212(C) RELIEF § 11.11 Legal Requirements for Applying for § 212(c) Relief in Removal Proceedings A.

Overview, Basic Eligibility

Former INA § 212(c) is a waiver of exclusion and deportation that Congress eliminated as of April 1, 1997. However, in INS v. St. Cyr the Supreme Court held that for some permanent residents who were convicted of crimes before April 1, 1997, § 212(c) is still available today, in removal proceedings or administrative applications. 66 In Judulang v. Holder the Supreme Court further clarified who is eligible to apply for § 212(c). 67 Section 212(c), like cancellation, is relief that gives long-time permanent residents a chance to avoid deportation despite being inadmissible or deportable. The issues involved in § 212(c) cases often are complex and require an experienced attorney or accredited representative, but all advocates should know how to identify and refer clients who might qualify. The basic threshold question for eligibility is: •

Is the person a permanent resident who is deportable or inadmissible for a conviction received before April 1, 1997?

If the answer to that question may be yes, an expert in § 212(c) should review the person’s case to see if he or she actually is eligible. Note that there are some automatic disqualifiers and red flags that mean the person will not, or probably will not, be eligible for § 212(c): •

A person cannot get both § 212(c) and cancellation of removal. Therefore an LPR who needs § 212(c) to waive, for example, an aggravated felony offense from before April 24, 1996, but also needs cancellation to waive a later conviction from 2006, is out of luck. However, the person can apply in the same hearing for § 212(c) to waive the older conviction, and for a waiver other than cancellation, such as § 212(h), to waive the second, later conviction.

•

Section 212(c) will not waive an aggravated felony or felonies for which the person actually served an aggregate five years, if the conviction occurred on or after November 29, 1990.

•

Section 212(c) probably cannot waive a charge of deportability based on conviction of an aggravated felony, drug offense, firearms offense, certain moral turpitude convictions, or several other deportation grounds, if the conviction occurred between April 24, 1996 and April 1, 1997. However, § 212(c) is available to waive inadmissibility based on these types of convictions, for example in an application to re-adjust status or for admission at the border.

The rest of this section will discuss a brief history of cases and legislation on § 212(c), and then set out the current law for who can apply. Finally, it will discuss the standard for a discretionary grant of relief under § 212(c). A great thing about § 212(c) (and LPR cancellation) is that the 66 67

INS v. St. Cyr, 533 U.S. 289 (2001). Judulang v. Holder, 132 S.Ct. 476 (2011).

11-32

standard to be granted § 212(c) as a matter of discretion is much easier to meet than, say, a standard of extreme hardship under § 212(h). If an applicant is eligible to apply and has a fairly clear record since 1997, he or she often can win by showing sufficient remorse and rehabilitation—especially if he or she has representation at the hearing. B.

Brief History of § 212(c)

This subpart provides a background in how the current rules for § 212(c) came into being. While this is helpful for advocates who want a deeper understanding of § 212(c), readers who want to go directly to the current eligibility requirements can look to Subsection C, below. The Former § 212(c) Relief. The former § 212(c) relief was a discretionary waiver of all grounds of exclusion (now called inadmissibility), which was extended by courts to also cover some charges of deportability. The § 212(c) waiver was available only to certain long-time permanent residents. To qualify, the person had to have accrued seven years of “lawful unrelinquished domicile.” Unlike LPR cancellation, the former § 212(c) relief did not have a statutory clock-stopping mechanism for the seven years. Time continued to accrue throughout administrative appeals (to the level of the BIA) and, if the person had contested deportability, through appeals to federal courts. In some cases, the seven years could start before the person became a permanent resident, for example during asylee or refugee status, or some other status that permitted the person to intend to remain permanently in the U.S. A permanent resident who met the above qualifications could apply under § 212(c) to waive almost any ground of inadmissibility or deportability, as long as she was not convicted of an offense making her deportable under the firearms ground or for entry without inspection (which were held not to be analogous to grounds of inadmissibility). After November 29, 1990, an applicant for § 212(c) was ineligible for relief if he had served a total of five years or more for one or more aggravated felony convictions. 68 Thus a conviction for an aggravated felony such as sale of controlled substances or a theft offense resulting in imprisonment for a few years could be waived under § 212(c). The Effect of AEDPA and IIRIRA. The AEDPA legislation enacted on April 24, 1996 drastically restricted the types of deportation grounds that could be waived under § 212(c). It barred waiver of the deportation grounds relating to conviction of an aggravated felony, drug offense, or firearms offense, or being a drug addict or abuser, and barred waiver of conviction of two moral turpitude offenses each with a year or more potential sentence. See discussion in Subsection C, below. The IIRIRA legislation enacted on September 30, 1996 added many new offenses to the list of aggravated felonies, thereby further reducing the availability of § 212(c) by increasing the kinds of offenses that could not be waived. The IIRIRA also eliminated § 212(c) relief entirely for persons in removal proceedings, which began on or after April 1, 1997. The St. Cyr Holding Permitting § 212(c) Applications in Removal Proceedings. In INS v. St. Cyr, 533 U.S. 289 (2001) the Supreme Court ruled that the AEDPA restrictions on § 212(c) and the IIRIRA elimination of § 212(c) cannot be applied retroactively to guilty pleas made before the effective dates of those Acts. The idea was that people like Mr. St. Cyr had relied on § 212(c) 68

This change in eligibility for § 212(c) was implemented by the Immigration Act of 1990 (IMMACT 90), effective November 29, 1990.

11-33

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

being available when they agreed to plead guilty. The only way the Court would upset such reliance would be if Congress had very specifically said that the AEDPA and IIRIRA amendments should apply retroactively to these cases—and Congress had not done that. The Court said, “We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” 69 The USCIS published a regulation on applying for § 212(c) under St. Cyr. See 8 CFR § 1202.3(f)(5) (2004). Some sections of the regulation will be held invalidated by the recent Supreme Court case, Judulang v. Holder. Judulang v. Holder, Matter of Blake, and Matter of Abdelghany, Changing Rules Regarding Which Grounds of Deportability Can Be Waived under § 212(c). A big question in § 212(c) law relates to which grounds of deportation can be waived. Section 212(c) is a waiver of inadmissibility, not deportability. However, long before 212(c) was eliminated in 1997, federal courts held, and the BIA agreed, that as a matter of Equal Protection § 212(c) also could waive a charge of deportability under certain circumstances. 70 The test was: if the person had happened to leave the U.S., would the deportable conviction have caused them to be charged with being inadmissible upon their return? If so, § 212(c) could be used to waive the deportation charge. In some other decisions, a somewhat different test applied: was the ground of deportation being charged analogous to a similar ground of inadmissibility? If so, § 212(c) could waive the deportation charge. This second test is the “comparable ground” test. In Matter of Blake, published in 2005, the BIA adopted a strict, and arguably new, interpretation of the comparable ground test. It held that because there is no “aggravated felony” ground of inadmissibility, § 212(c) may not be used to waive the aggravated felony deportation ground, unless the specific aggravated felony category at issue (e.g., drug trafficking, sexual abuse of a minor) had a comparable, specific inadmissibility ground. Mr. Blake was charged with being deportable for conviction of an aggravated felony offense of sexual abuse of a minor. The BIA held that because there is no “sexual abuse of a minor” ground of inadmissibility, § 212(c) was not available to waive the deportation charge. Advocates argued that in practice any conviction of sexual abuse of a minor also is a crime involving moral turpitude, which can cause inadmissibility—and in fact, in practice for many years aggravated felonies that amounted to crimes involving moral turpitude had been waived under § 212(c). The BIA rejected that argument. The BIA did hold that the aggravated felony “drug trafficking” had a sufficient analogous inadmissibility ground, and that could be waived under § 212(c). 71 All federal courts except for the Second Circuit followed Mater of Blake and the DHS regulation that implemented Blake, regarding whether § 212(c) could waive an aggravated felony. The Supreme Court, however, reversed the Blake rule in Judulang v. Holder, 565 U.S. 42 (2011). The Court found the BIA’s comparable grounds test to be arbitrary and capricious. The Court remanded the case (sent it back) to the BIA with instructions to make a better rule, consistent with the Supreme Court’s analysis. The BIA then created a new structure and a simpler standard for 69

INS v. St. Cyr, 533 U.S. 289, 325 (2001). This is sometimes called the Francis rule, after Francis v. INS, 532 F.2d 268 (2nd Cir. 1976). 71 See Matter of Blake, 23 I&N Dec. 722 (BIA 2005), and Matter of Brieva, 23 I&N Dec. 766 (BIA 2005). 70

11-34

determining who is eligible for 212(c) relief, in Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014). The comparable grounds test is completely abandoned. In the new rule, the BIA divided people into two basic groups: 1. An LPR with 7 years lawfully in the U.S. (as of now), whose plea or conviction was entered before April 24, 1996, is eligible to apply for § 212(c) relief, unless: a. The LPR is subject to the national security, terrorism, persecutor, foreign policy or international child abductions grounds of inadmissibility; 72 or b. The LPR has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions between November 29, 1990, and April 24, 1996. 2. An LPR with 7 years lawfully in the U.S. (as of now), whose plea or conviction was entered between April 24, 1996 and April 1, 1997, is eligible to apply for § 212(c) relief unless: a. Either of the above two disqualifiers apply (relating to grounds of inadmissibility such as terrorism, and to serving a five-year term of imprisonment for certain aggravated felony convictions), plus an additional disqualifier: b. If proceedings commenced on or after April 24, 1996, and the conviction renders the applicant deportable under one or more of the deportability grounds enumerated in 440(d) of AEDPA—the person is ineligible for 212(c) relief. Remember the AEDPA barred offenses include: aggravated felonies, drug offenses, firearms offenses, being a drug addict or abuser, and two moral turpitude offenses each with a year or more potential sentence. (But the situation is better if the issue is whether the LPR is admissible; see below). An excellent Practice Advisory provides more information about the Judulang ruling and how it can help clients now in proceedings, or clients who have been wrongly removed in the past. See Vargas, Morawetz, et al., “Implications of Judulang v. Holder” at www.nationalimmigrationproje ct.org/legalresources/practice_advisories/pa_Implications_%20of_Judalang_v_Holder.pdf. Finally, it is important to understand that both the AEDPA and the Matter of Blake restrictions applied only to grounds of deportation and not to grounds of inadmissibility. This means that the restrictions could prevent a noncitizen from filing a § 212(c) application to waive a charge of deportability, but the same person might be able to waive a charge of inadmissibility. The 1996 AEDPA amendment by its terms set out certain grounds of deportability that could no longer be waived under 212(c). Despite AEDPA, any type of conviction received by plea through April 1, 1997 could be waived as a ground of inadmissibility. (The exception, for all § 212(c) cases, is that § 212(c) cannot waive one or more aggravated felony convictions on or after November 29, 1990 that resulted in an aggregate time actually served of five years or more). Similarly, the Matter of Blake restrictions—based upon whether a deportation ground was sufficiently similar to a corresponding ground of inadmissibility—also did not limit § 212(c) waivers of inadmissibility. Thus an inadmissible LPR who is seeking admission at the border, or who is seeking to “re-adjust 72

INA 212(a)(3)(A), (B), (C), (E), and (10)(C).

11-35

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

status” as a defense to removal proceedings, could use § 212(c) to waive any inadmissibility ground, even if the inadmissible conviction happened to be an aggravated felony, firearms offense, or other deportable offenses. Matter of Azurin, 23 I&N Dec. 695 (BIA 2005). C.

Statutory Eligibility: Who Can Apply for § 212(c) Relief Now?

Again, the basic threshold questions to see if a permanent resident might be eligible for § 212(c) are: Is the person being charged with inadmissibility or deportability based on conviction/s from before April 1, 1997? 1. Seven years of “lawful unrelinquished domicile” To apply for § 212(c), an LPR must have seven years “lawful unrelinquished domicile.” This includes not only time in LPR status, but also in some other types of status, such as asylee or refuge, that permit the person to intend to reside permanently in the U.S. The good news for § 212(c) applicants today is that almost no one should have a problem with the seven years. First, the seven years did not have to be accrued at the time of the guilty plea, or by April 1, 1997. The applicant just needs the seven years as of the date that he or she will apply for § 212(c) (or, in the case of a motion to reopen a prior order of deportation or removal, had the seven years at time of the final decision). 73 In fact, the Ninth Circuit upheld § 212(c) eligibility for a person who was not yet a permanent resident at time of plea, where the person was a lawful temporary resident under the SAW program, and the conviction did not make the person ineligible to receive permanent residency. 74 Second, the seven years has continued to accrue all this time for most persons who still are LPRs. Assuming that the applicant was an LPR when he or she pled guilty before April 1997, in 2012 the applicant will have at least 15 years of the required time. Unlike LPR cancellation of removal under INA § 240(A)(a), there is no “stop-time” rule in § 212(c). Under § 212(c) “lawful unrelinquished domicile” continues after the commission of an offense, and also continues after the person has been placed in deportation or removal proceedings by issuance of an Order to Show Cause or Notice to Appear, and throughout the removal proceedings up to the level of the Board of Immigration Appeals if an appeal has been taken. Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993). In the Ninth Circuit, if the person had contested deportability, lawful domicile would continue at least throughout the appeal to the federal court. Wall v. INS, 722 F.2d 1442, 1444 (9th Cir. 1984). Additionally, the Ninth Circuit has held that where the respondent does not appeal the BIA’s final administrative order of removal, lawful domicile terminates only when the removal order is executed, rather than the date of the BIA’s decision. Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016). This holds true even for an individual who unlawfully re-enters the United States after the removal order is executed and who then seeks to sua sponte reopen his proceedings based on a claim that he was previously eligible for 212(c) relief. Id. at 590. In Bonilla, the court further confirmed that if the BIA grants a motion to reopen in such a circumstance, the applicant seeking 73

See 8 CFR § 1003.44(b)(3); see also Alvarez-Hernandez v. Acosta, 401 F.3d 327, 329-332 (5th Cir. 2005). 74 See Perez-Enriquez v. Gonzales, 463 F.3d 1007 (9th Cir. 2006) (en banc). Mr. Perez-Enriquez was a temporary resident under the SAW program, one of the legalization programs in the 1980’s. People who immigrated under the SAW program had to prove admissibility when they obtained temporary residence, but not when they obtained permanent residence, which happened automatically on December 1, 1990.

11-36

212(c) relief “would be restored to the lawful permanent resident status he held then, unless and until the new proceedings close without granting relief.” Id. This is a sensible rule, because in practice, before the elimination of § 212(c), permanent residents with less than seven years often did fashion plea bargains to preserve eligibility for § 212(c), reasonably relying on well-established law that the seven years would continue to accrue after the conviction and through the deportation hearing and any appeals. 75 Example: Juan pled guilty to moral turpitude offenses in 1994 and 1995, three years after he had first been admitted to the U.S. as a lawful permanent resident in 1991. In some jurisdictions, Juan is not eligible for cancellation of removal under INA § 240A(a), because when he became deportable and inadmissible for moral turpitude crimes, the “clock stopped” on his accrual of seven years residence since admission. 76 But he is eligible for § 212(c) relief under St. Cyr. Although he did not have seven years lawful unrelinquished domicile at the time he pled, he has had it since 1998. In some circuits, Juan could apply for LPR cancellation of removal, because no conviction from before April 1, 1997 is deemed to stop the seven-year clock. See discussion of Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006) in § 11.5, Subsection B, above. 2. When can § 212(c) be used to waive a charge of deportability? a. Deportable for a conviction from before April 24, 1996 The BIA has now held that a permanent resident can use § 212(c) to waive a charge of being inadmissible or deportable based on a conviction by plea or trial from before April 24, 1996 with a few “significant” exceptions. Following the Supreme Court’s instructions, the BIA has ruled that no comparable ground of inadmissibility is necessary 77 (see Subsection B, above), and the fact that the LPR may not have been removable at the time of conviction is irrelevant. The rule will now work like this: Example: Angel became a lawful permanent resident (LPR) in 1992. In 1995 he pled guilty to felony theft and was sentenced to 16 months. Theft under this particular state statute is both a crime involving moral turpitude (CIMT) and an aggravated felony as “theft” if a sentence of a year or more is imposed. Then in January of 1996 he was convicted at trial of a deportable firearms offense. Angel is put in removal proceedings in 2014 and charged with being deportable under the CIMT and aggravated felony deportation grounds. There is no “aggravated felony” or

75

See, e.g., Matter of Lok, 18 I&N Dec. 101(BIA 1981), aff’d 681 F.2d 107 (2nd Cir. 1982); Wall v. INS, 722 F.2d 1442 (9th Cir. 1984), United States v. Jimenez-Marmelejo, 104 F.3d 1083 (9th Cir. 1996). 76 See Chapter 5. 77 See Judulang v. Holder, 565 U.S. 42 (2011) and Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014), discussed in Subsection B, above. In Judulang the Court found the BIA’s comparable grounds test to be arbitrary and capricious, and remanded the case to the BIA with instructions to make a different rule, which the BIA did in Abdelghany.

11-37

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

“theft” or “firearms” inadmissibility ground. Can Angel apply to waive these grounds under § 212(c)? Yes. As of 2014 he has amassed 22 years as an LPR, far more than the seven years that he needs. He is deportable under the aggravated felony, CIMT and firearms grounds for convictions to which he pled guilty before April 24, 1996, based on a guilty plea or a conviction after trial made at a time when he was an LPR. It does not matter that the theft offense is an aggravated felony. It does not matter that the firearms ground does not also cause him to be inadmissible. And it also does not matter that one conviction occurred after a plea and the other after a trial. Angel is eligible to apply for § 212(c) relief. b. Deportable for a conviction from between April 24, 1996 and April 1, 1997 The 1996 AEDPA 78 severely limited the deportation grounds that could be waived by § 212(c). These limits apply to charges that the person is deportable due to convictions received between April 24, 1996 and April 1, 1997, the date that § 212(c) ended. The AEDPA provides that § 212(c) is not available to people who are deportable for the following offenses: • • • • • •

Conviction for any aggravated felony; Conviction for a controlled substance violation; Drug addiction or abuse (no conviction necessary); Conviction for a firearms offense; Espionage and sabotage offenses as defined in former INA § 241(a)(2)(D); Two crimes of moral turpitude, both of which carry a potential sentence of a year or more. Example: What if Angel in the above example had pled guilty to the aggravated felony theft offense in August 1996? He would not be able to waive the aggravated felony deportation charge under § 212(c). The BIA kept this rule in the Abdelghany decision.

PRACTICE TIP: A good solution for a client like Angel would be to file an application for adjustment of status as a defense to removal where this is possible. The BIA has held that a § 212(c) waiver can be submitted in conjunction with the adjustment status application, and so the 212(c) waiver would waive the theft and aggravated felony conviction grounds which occurred pre-AEDPA, and the adjustment would essentially waive the firearms conviction. See Subsection 3, below. All other deportation grounds can be waived for convictions occurring between these dates. For example, the alien smuggling or document fraud deportation ground, and convictions of crimes involving moral turpitude that don’t meet the above test, still can be waived. Example: Beverly became an LPR in 1991. In 1994 and in October 1996 she was convicted of two theft offenses that were both CIMTs. One had a potential sentence of six months and the other a potential sentence of one year. She is now charged with being 78

The relevant part of AEDPA discussed in this manual is § 440(d). Other parts of AEDPA have nothing to do with immigration law. See AEDPA discussion at Subsection B, above.

11-38

deportable for conviction of two CIMTs after admission, under INA § 237(a)(2). The offenses also make her inadmissible for CIMT. Can she apply to waive the deportation charges under § 212(c)? Yes. She can apply to waive the deportation charge under § 212(c), because she does not come within the AEDPA bar: she does not have two CIMT convictions, both of which have a potential sentence of a year. 3. Inadmissibility, adjustment of status and admission with § 212(c) Section 212(c) is a useful waiver of inadmissibility. It can be used to waive any ground of inadmissibility except § 212(a)(3) (security, terrorism, persecutor, foreign policy) and § 212(a)(10)(C) (child abduction) grounds, even if the conviction also is an aggravated felony. 79 Permanent residents may need to use § 212(c) to waive inadmissibility in two contexts: a. When an LPR is seeking a new admission at the border after a trip abroad, under INA § 101(a)(13)(C) (but see discussion of Vartelas, below), or b. When § 212(c) is not available to waive a charge of deportability in removal proceedings, so that the LPR instead must apply for adjustment of status coupled with a § 212(c) waiver of inadmissibility as defense to removal. This could occur because the conviction occurred between April 24, 1996 and April 1, 1997, or if multiple waivers are required. a. Using § 212(c) to waive inadmissibility at the border Under the definition of “admission” that has been in effect since April 1, 1997, a lawful permanent resident who travels abroad will be held to be seeking a new “admission” upon return to the U.S. only if he or she comes within an exception listed at INA § 101(a)(13)(C). Committing an offense described in the crimes inadmissibility grounds, at INA § 212(a)(2), is one of these exceptions. See INA § 101(a)(13)(C) and discussion in Chapter 1. The Supreme Court has held that § 101(a)(13)(C) does not apply, however, if the only conviction or convictions that would make the returning lawful permanent resident inadmissible occurred before April 1, 1997. If that is the case, authorities must apply an older definition of admission, which was in effect before April 1, 1997. Under that definition the LPR is not seeking a new admission at the border, and is not subject to the grounds of inadmissibility, as long as his or her absence was “brief, casual and innocent.” See Vartelas v. Holder, 132 S. Ct. 1479 (2012) and see online Practice Advisory. 80 Example: Christian was convicted of felony fraud in 1998, after he had been an LPR for some years. The fraud offense is a crime involving moral turpitude. It is an offense described in the crime inadmissibility grounds at INA 212(a)(2) (because it is a CIMT that does not come within the petty offense exception). In 2017 Chris takes a one-month trip outside the U.S. to visit family. Upon his return, he can be stopped at the border as an LPR who is seeking a new admission, under INA 79

Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014); Matter of Azurin, 23 I&N Dec. 695 (BIA 2005). See American Immigration Council, National Immigration Project of the National Lawyers Guild, Immigrant Defense Project, “Vartelas v. Holder” (April 5, 2002) at www.nipnlg.org/PDFs/practitioners/practice_advisories/crim/2012_5Apr_vartelas.pdf.

80

11-39

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

101(a)(13)(C). He is in fact inadmissible for crimes; in order to be admitted he will have to apply for some waiver of inadmissibility, such as 212(h) or LPR cancellation. What if Christian had been convicted of the fraud in 1995 rather than 1998? When he returns from his 2017 trip, a different definition of “admission” applies, because the only conviction that makes him inadmissible occurred before April 1, 1997. Vartelas. Because Christian’s trip was “brief, casual, and innocent,” he is not deemed to be seeking a new admission at the border, and therefore he must be permitted to enter. The fact that he is inadmissible is irrelevant, since at this moment he is not subject to the grounds of inadmissibility because he is not making a new admission. b. Using § 212(c) with an application for adjustment of status as a defense to removal As a waiver of inadmissibility, § 212(c) can be used in conjunction with an application for adjustment of status. 81 If your client qualifies for adjustment of status, he or she can assert this as a defense to removal. When applying for adjustment of status, only the grounds of inadmissibility, not the grounds of deportability, are applicable. The person will file a § 212(c) application (and other waiver applications, if necessary) with the adjustment application, in order to waive the inadmissibility grounds. If the adjustment and waiver applications are granted, the LPR will have a new LPR card and not be deportable. Why would an LPR in removal proceedings file an application for adjustment of status, rather than simply applying for § 212(c) as a direct defense to deportability? One reason would be if the conviction occurred between April 24, 1996 and April 1, 1997, and AEDPA bars prohibit use of § 212(c) to waive deportation grounds. Another reason would be if § 212(c) alone would not resolve the case, and multiple waivers are needed. By applying for adjustment of status, the LPR can make the grounds of inadmissibility, not deportability, govern the case. An applicant for adjustment of status is subject to the grounds of inadmissibility. INA § 245(a). Filing an application for adjustment of status, or a self-petitioning VAWA application, will permit you to use § 212(c) to waive inadmissibility not deportability. 82 Regarding the AEDPA bars, as discussed in Subsection A above, the AEDPA provided that § 212(c) could not be used to waive several deportation grounds (for example, aggravated felony, controlled substance, and some CIMTs) if they were based upon a conviction received between April 24, 1996 and April 1, 1997. These AEDPA restrictions do not apply to waiver of inadmissibility grounds, however. If the noncitizen can make the removal case turn on inadmissibility rather than deportability, for example by filing an application for adjustment of status, she may be able to apply for § 212(c). Example: Carla became a permanent resident in 1991 and was convicted of sale of heroin in November 1996. In 2012 she is placed in removal proceedings and charged with being deportable under the controlled substance ground and the aggravated felony “drug trafficking” ground. Under AEDPA, she cannot use § 212(c) to waive these deportation grounds because the conviction occurred between April 24, 1996 and April 1, 81 82

See, e.g., Matter of Azurin, 23 I&N Dec. 695 (BIA 2005). See Azurin, Gabryelsky, above.

11-40

1997. However, if her U.S. citizen husband files a new I-130 petition for her, she can apply for adjustment of status as a defense to removal. She is inadmissible under drug grounds, but she can file an application to waive these inadmissibility grounds under § 212(c), along with the adjustment, because she received the conviction before April 1, 1997. 83 Regarding the need to file multiple waivers, in some cases a § 212(c) waiver alone might not resolve the case, because the person is deportable and inadmissible for multiple crimes, only some of which occurred before April 1. But the person can submit multiple waivers in conjunction with an adjustment of status application. Example: Glenda was convicted of sale of heroin in 1992 and of passing bad checks (which under the particular statute is a crime involving moral turpitude) in 2000 and 2001. She is placed in removal proceedings, charged with being deportable for an aggravated felony conviction and for conviction of two CIMTs. She could use § 212(c) as a defense to being deportable for the aggravated felony, but that would leave her still deportable for CIMTs. She cannot apply for both § 212(c) relief and LPR cancellation. INA § 240A(c)(6). However, if her adult USC daughter files an immediate relative visa petition for her, Glenda can apply for adjustment of status. With the adjustment application, she can submit a § 212(c) application to waive the drug conviction and a § 212(h) application to waive the bad check convictions. 84 (In fact, because the moral turpitude convictions both occurred at least 15 years in the past, she will face a relatively easy standard under § 212(h). See INA § 212(h)(1)(A)(i).) 4. § 212(c) eligibility for those convicted by jury trial After many years and circuit court splits, the BIA ultimately decide that § 212(c) also relief also applies to those convicted at trial. In INS v. St. Cyr the Supreme Court had held that § 212(c) applies to those whose past convictions were entered into via a plea agreement, reasoning that those who entered pleas relied on the existence of § 212(c) when they gave up their right to a trial as part of their plea bargains. The BIA has ultimately directed that § 212(c) does apply to convictions by plea or jury trial, with no restrictions or additional requirements of “reliance.” The BIA reasoned that, based on Supreme Court and prevailing circuit court precedents, the presumption against retroactive application of a new statute eliminates the need for a showing of detrimental reliance. 5. A permanent resident who actually served an aggregate of five years or more for conviction of one or more aggravated felonies is not eligible for § 212(c) if the conviction/s occurred between November 29, 1990 and April 24, 1996 As noted above, § 212(c) was modified by IMMACT 90 to prohibit eligibility to those who have been convicted of one or more aggravated felonies and have served a term of imprisonment of at least 5 years for that felony or felonies. IMMACT 90 went into effect on November 29, 1990. 83

See Matter of Azurin, 23 I&N Dec. 695 (BIA 2005), affirming Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993). 84 See, e.g., Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993).

11-41

Chapter 11

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 11

Immigrant Legal Resource Center June 2017

People with aggravated felonies who have served a total of 5 years of more for that felony or felonies are still eligible for § 212(c) if their convictions were entered into before November 29, 1990. The regulations also permit this 85 and the BIA has maintained this provision as is in Matter of Abdelghany. 86 6. An LPR does not need to be deportable at the time of conviction to be eligible for 212(c) relief Additionally, the BIA in Matter of Abdelghany decided that the lawful permanent resident need not have been deportable at the time he or she was convicted to be eligible for § 212(c) relief, reasoning that such a requirement would have impermissibly retroactive effect and would require immigration judges to focus on the law in effect at the time of conviction, which would be impractical. 87 This situation would come into play, for example, if a person was not deportable for a conviction when the conviction occurred in 1995, but subsequently became deportable for the same conviction when the law changed in 1996. FOR MORE INFORMATION ON THIS SUBJECT, see: Remedies and Strategies for Permanent Resident Clients (www.ilrc.org) Immigration Law and Crimes, (http://legalsolutions.thomsonreuters.com/lawproducts/Treatises/Immigration-Law-and-Crimes-2017-1-ed) Defending Immigrants in the Ninth Circuit (www.ilrc.org) American Immigration Council Website (www.aic.org, see Practice Advisories) Immigrant Legal Resource Center Website (www.ilrc.org/crimes, www.ilrc.org/chart)

85

8 CFR § 1212.3(f)(4)(i). Matter of Abdelghany, 26 I&N Dec 254 (BIA 2014). 87 Matter of Abdelghany, 26 I&N Dec 2 h54 (BIA 2014). 86

11-42

CHAPTER 12 ASYLUM AND RELATED RELIEF: ASYLUM, WITHHOLDING, CONVENTION AGAINST TORTURE

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes:

§ 12.7 § 12.8 § 12.9 § 12.10 § 12.11 § 12.12 § 12.13 § 12.14 § 12.15 § 12.16 § 12.17

Overview of Asylum Law ................................................................................ 12-1 Defensive Asylum in Removal Proceedings .................................................... 12-2 Comparing Asylum and Withholding of Removal ........................................... 12-3 Relief under the Torture Convention................................................................ 12-7 The “Asylum Clock” and Qualifying for Work Authorization ........................ 12-9 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal ..................................................................................................... 12-10 Bars to Both Asylum and Withholding of Removal ...................................... 12-21 The Statute: Legal Requirements for Eligibility for Asylum ......................... 12-31 Well-Founded Fear of Persecution ................................................................. 12-33 Past Persecution.............................................................................................. 12-34 What Is Persecution? ...................................................................................... 12-40 Persecutors: Government and Non-Governmental Forces ............................. 12-42 Connecting Persecution to the “Enumerated Grounds” ................................. 12-43 The Meaning of the Protected Grounds ......................................................... 12-46 Spotlight on Membership in a Particular Social Group.................................. 12-57 The REAL ID Act and Corroboration ............................................................ 12-72 Credibility and Frivolous Applications .......................................................... 12-74

PART ONE: AN OVERVIEW -- PROCEDURAL CONSIDERATION, STRATEGY AND BARS TO ELIGIBILITY § 12.1 Overview of Asylum Law People who have fled their country because they fear persecution may seek asylum so that they may remain in the United States. Unlike other parts of immigration law, asylum and asylumrelated protections are derived from international refugee law. International refugee law is designed to serve as substitute protection where the person’s own country has failed to protect the individual, because the country is either unable or unwilling to protect an individual from persecution. The primary sources on international refugee protection are the 1951 UN Convention Relating to the Status of Refugees (“Refugee Convention”) and the 1967 UN Protocol Relating to the Status of Refugees. The Refugee Convention provides the definition of a refugee in Article 1 as “A person who is outside any country of such person’s nationality and unable or unwilling to avail him or herself of the protection of that country because of persecution

12-1

Chapter 12

§ 12.1 § 12.2 § 12.3 § 12.4 § 12.5 § 12.6

on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Chapter 12

Article 33 creates the non-refoulement obligation that “[n]o contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Both these definitions are incorporated into U.S. asylum law as discussed below. The United States is a signatory to the UN Protocol Relating to the Status of Refugees, which incorporated the articles of the Refugee Convention. In 1980, Congress passed the Refugee Act, which was intended to bring U.S. law into conformity with established international refugee law. The Refugee Act is incorporated into federal immigration law at Immigration and Nationality Act (INA) §§ 207 and 208. INA § 208 provides the eligibility requirements and procedural framework for people who are physically present in the United States to apply for asylum. INA § 207 contains provisions relating to the admission of refugees—those people who are overseas and seek refuge in the U.S. Thus, an asylee (a person granted asylum) is someone who applies for, and is granted, protection after entering the United States or its territories. A refugee is someone who is granted protection abroad and then enters the United States in refugee status. § 12.2 Defensive Asylum in Removal Proceedings An asylum application may be filed “affirmatively” or “defensively.” If an asylum-seeker is not in removal proceedings and files an asylum application with U.S. Citizenship and Immigration Services (USCIS), it is considered an affirmative application. USCIS has the authority to grant asylum (not withholding of removal or CAT protection). If USCIS determines that an asylum application should not be granted, it will deny the application if the applicant is in valid immigration status at the time of the decision. If the applicant does not have legal immigration status, USCIS will refer the application to the immigration court and issue a Notice to Appear, placing the applicant in removal proceedings. A defensive asylum application is one presented when an individual is in removal proceedings in immigration court, before an immigration judge. An asylum applicant may end up presenting an asylum case in court through different ways. An asylum applicant might file for the first time with an immigration court as a defense to removal after being placed in proceedings. For new filings, advocates should be very aware of the one year filing deadline. See § 12.6 for a detailed discussion. Second, a person arriving at the United States border or a port of entry and expresses fear of return to her home country will go through what is called a “credible fear interview.” If her fear is found to be credible, she will be given the opportunity to present her case to an immigration judge in an asylum only hearing. 1 Another way in which an individual may end up presenting an asylum case in court is if USCIS does not grant her affirmatively-filed application, but instead refers the application to the immigration court. In that case, the record of the case—all documents submitted to the asylum office—will be

1

The hearing is for asylum only because an arriving alien at the border does not have the right to full removal proceedings under INA § 240. Apart from a claim to asylum, an arriving alien is subject to expedited removal. See INA § 235(b).

12-2

Tab Position 1

Immigrant Legal Resource Center June 2017

forwarded to the court for consideration. In these cases, opposing counsel often has notes from the asylum interview and can compare them to what the applicant says in court.

§ 12.3 Comparing Asylum and Withholding of Removal There are important differences between asylum and withholding of removal. The controlling law for both asylum and withholding is part of the INA: Withholding of Removal, INA § 241(b)(3)(A). 2 The Attorney General may not remove an immigrant to a country if the Attorney General decides that the applicant’s life or freedom would be threatened in that country on account of race, religion, nationality, membership in a particular social group, or political opinion. Asylum, INA § 208(b)(1). The Attorney General may grant asylum if the Attorney General determines that such an immigrant is a refugee within the meaning of § 101(a)(42)(A). INA § 101(a)(42)(A) defines a refugee as a person who fears returning to his country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Withholding of removal has fewer bars than asylum, but it has a higher standard of proof: an applicant must show that it is “more likely than not” that she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon deportation to her home country. Withholding of removal is, therefore, a protection for individuals who can meet that higher standard but who have some negative equity that prevents them from being granted asylum. Expanded legal preclusions to asylum, have significantly increased the number of situations in which withholding is the only available remedy. (In the next section, we will briefly discuss the Convention Against Torture, which offers protection to a very limited group of applicants that cannot qualify for asylum or withholding of removal. See § 12.4.)

2

Withholding of removal, which is called “Restriction on Removal” in the Immigration and Nationality Act (INA), is referred to as “withholding” because it replaced a prior provision that was called withholding of deportation. In spite of the statutory change, practitioners and even immigration judges more commonly use the term “withholding” rather than “restriction on removal.” Therefore, we will use the more widely used “withholding” in this chapter.

12-3

Chapter 12

An application for asylum, Form I-589, is also used for two other forms of relief, withholding of removal (restriction on removal) and relief under the Convention Against Torture (CAT). These forms of humanitarian protection have different eligibility requirements and legal standards. They are only available in immigration court, and not considered unless the person must present their case in court. One might not qualify for asylum, but still qualify for withholding of removal or relief under the Convention Against Torture. Two common reasons why a person pursues withholding or relief under CAT are: 1) she is filing the application after having been in the U.S. more than a year since her last entry and 2) she has criminal convictions that bar an application for asylum. Less commonly, if an applicant is deemed eligible for asylum but is denied on discretionary grounds or based on their “firm re-settlement” in another country before their arrival to the U.S., they may be granted withholding or CAT relief. Only an immigration judge, not USCIS, can consider applications for withholding and relief under CAT.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

Withholding is similar to asylum in many ways, but it offers inferior benefits. An individual who is granted withholding can receive employment authorization, but withholding does not lead to permanent resident status. Nevertheless, withholding remains a crucial option: it may allow release from immigration detention and it provides permission to remain in the U.S. lawfully, with some procedural protections against reversal of the withholding decision. The four major differences between asylum and withholding are: the legal standard of proof, the benefits if approved, the statutory bars that apply, and whether the relief is discretionary or mandatory. Each of these differences are discussed in detail below. A.

The Legal Standard

The standards for asylum and withholding are similar in one important respect. In both cases, the persecution claim must be on account of one of the five enumerated grounds—race, religion, nationality, social group or political opinion. The legal test for withholding of removal is stricter than the one for asylum. Standard for Withholding of Removal. To win withholding, the person must show that it is more likely than not that she will in fact be persecuted. The standard for withholding is based on the words in the statute which require the person to show that his “life or freedom would be threatened” if he returned. The U.S. Supreme Court held that this standard requires that the applicant must show that she faces a “clear probability” of persecution, or that it is “more likely than not” that she will be persecuted. 3 This is called the clear probability standard for withholding, based on the Stevic case, and is quantified as a more than 50 percent likelihood of persecution. 4 Standard for Asylum. The Supreme Court has ruled that a “well-founded fear of persecution” is an easier standard to meet than the “clear probability” test for withholding. 5 USCIS regulations state that a well-founded fear means that there must be a “reasonable possibility” that the person would suffer persecution. 8 CFR § 208.13(2). A concurring opinion in Cardoza-Fonseca quantified the standard as a one-in-ten chance that the person will be persecuted. 6 Example: Mr. Garcia actively participated in demonstrations, slogan painting, and distribution of leaflets for an opposition organization in Venezuela. The Venezuelan government did not know about Mr. Garcia specifically. The court held that he had a well-founded fear of persecution as required for asylum because there was a real possibility that the government would become aware of his activities in the future. The court said that Mr. Garcia did not qualify for withholding of removal because he did not face a clear probability of persecution since the government was not specifically aware of his activity. 7

3

Stevic v. INS, 467 U.S. 407 (1984). Id. 5 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 6 Id. 7 See Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985). 4

12-4

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Benefits

Asylum offers greater benefits than withholding. These benefits include: eligibility for permanent residence, the right to immediately apply for his or her spouse and children, and the right to travel with a refugee travel document.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Withholding only prohibits the U.S. government from deporting the person to the country from which he fled persecution and allows the applicant to obtain work authorization. Removal is only withheld as long as the person would be in danger if he were to return to that country. An asylee has the right to apply for permanent residence one year after receiving asylum (whether granted by the IJ or USCIS). A permanent resident will be able to naturalize to a U.S. citizen in the future. Until the asylee obtains permanent resident status, he will indefinitely remain an asylee, unless his asylum status is legally terminated. In contrast, a person who only obtained withholding, but was denied asylum, does not have the right to apply for permanent residence. Withholding permits a person to remain in the U.S. but does not give her the benefit of becoming a permanent resident. 2. Asylum for family members The spouse or child of an asylee is entitled to derivative asylum status. INA § 208(b)(3). “Derivative asylum status” means that a person derives (obtains) asylum status based on the fact that his or her spouse or parent’s asylum application is granted. Derivative status can extend to a spouse or child regardless of whether she lives in the U.S. or abroad. If the spouse or child is in the U.S. and included in the initial asylum application, they will receive asylum at the same time as the principal applicant. Alternatively, once granted asylum, an asylee may petition a spouse or child who is living abroad or who is in the U.S. but was not included as a derivative on the initial asylum application (Form I-730). An asylee relative petition (Form I-730) must be filed within two years of the date the asylum application is granted in order for the spouse or child to derive asylum status, with few exceptions. Someone who was granted withholding of removal has no ability to include a spouse or child and cannot petition to have them join. Withholding protection extends only to the individual. However, a family member may have their own valid asylum or withholding claim to pursue independently. Derivative Asylum for Children: The Child Status Protection Act (CSPA). If a child was under 21 when the parent’s Form I-589 was filed but later turns 21, the CSPA allows them to continue to be eligible for derivative asylum status. Therefore, a child who turns 21 while a parent’s application for asylum is pending or while an I-730 filed on their behalf is pending can still receive derivative asylee status. However, it is required that the child remain unmarried. 3. Right to travel An asylee has the right to travel outside the United States. INA § 208(c)(1)(C). To do so, he or she must obtain a refugee travel document. The asylee submits an application to USCIS to obtain the refugee travel document. However, an asylee should not return to her own home

12-5

Chapter 12

1. Permanent residence

country without consulting with an expert. If she does travel back to the country of feared persecution, she risks losing her status since her visit to her home country implies that she no longer fears persecution there. 8 In these cases, the person’s earlier asylum case can be revisited. Someone with withholding of removal has no right to travel outside the United States.

Chapter 12

C.

Different Statutory Bars

Certain people are absolutely barred, or disqualified, from receiving asylum. Even if an applicant has the requisite well-founded fear or has suffered past persecution, they may be disqualified from receiving asylum if they fall under one of the bars described in the statute. Many, but not all, of these bars also apply to withholding of removal. Thus, a person can be barred from asylum, but still be eligible for withholding. The bars to eligibility are stricter for asylum. The U.S. government does not have to grant asylum to all those facing persecution in their home countries, but under international law, the U.S. does have to grant protection through withholding for those that are more likely than not to have their life or freedom threatened. The greater protection of asylum is thus only for those that are not barred as discussed below, and who merit a favorable exercise of discretion. Of particular note, the one-year filing rule discussed below does not apply to withholding, nor does the rule of firm resettlement. If the asylum application was denied for any of the below reasons, the person could still be eligible for withholding of removal: • • • •

one-year rule; some criminal convictions (aggravated felony bar); firm resettlement; and prior denial of asylum or removal order.

The following are statutory bars to both asylum and withholding. They are: • • • • • •

Persecution of others; Conviction of a particularly serious crime; 9 Committed a serious non-political crime before coming to the U.S.; Danger to U.S. security; and Participation in Nazi persecution, genocide, torture, or extrajudicial killing. Safe Third Country.

These mandatory bars (termed “exceptions” in the statute) apply to applications filed on or after April 1, 1997, and are discussed in the subsequent sections. 10 For applications filed before April 1, 1997, see 8 CFR § 208.13(c)(2) as well as the prior statutory provisions. In short, if your client merits a favorable exercise of discretion and does not fall within one of the bars to asylum, asylum is the preferable form of relief. If no negative factors are present, your 8

See INA § 208(c)(2)(D). Note that the standard for determining whether someone has been convicted of a particularly serious crime is distinct for withholding and asylum. See § 12.6. 10 See also 8 CFR § 208.13(c)(1); INA § 208(a)(2), § 208(b)(2)(A). 9

12-6

Tab Position 1

Immigrant Legal Resource Center June 2017

client will not need to consider withholding as a form of relief. Nonetheless, for many fearing harm in their home country, withholding or relief under CAT might be the only options because one of the more restrictive bars to asylum apply. D.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Discretion

Withholding of removal is mandatory. That means that if the person meets the legal requirements for withholding, the judge must grant the case. On the other hand, asylum is granted as a matter of discretion. Even if the person meets all the requirements, the judge or USCIS may decide not to grant asylum if there are negative factors.

§ 12.4 Relief under the Torture Convention There is an additional form of relief aside from asylum and withholding of removal for those fearing return to their home country. Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“Convention Against Torture,” “CAT,” or “Torture Convention”) prohibits contracting countries from expelling, returning, or extraditing a person to a country where he or she would be tortured. 11 The United Nations adopted the Torture Convention in 1984, and the United States became a signatory in 1988 and ratified it in 1994. It was implemented in 1999 through agency regulations at 8 CFR § 208.18.; see also 8 CFR §§ 208.16, 208.17. CAT provides protection from removal for individuals fearing torture in their home country who do not qualify for asylum or for withholding of removal. To qualify for relief under CAT, the applicant must establish that it is “more likely than not that he or she would be tortured if removed to the proposed country of removal.” 12 The applicant is not required to show a nexus: unlike with asylum or withholding of removal, the torture that the applicant fears does not need to be inflicted on account of race, religion, nationality, political opinion, or membership in a particular social group. Instead, protection under CAT focuses on the nature, purpose, and agent of the feared torture. A claim under CAT “focuses solely on the likelihood that the alien will be tortured if returned to his or her home country, regardless of the alien’s subjective fears of persecution or his or her past experiences.” 13 Thus, applicants facing torture that cannot prove a nexus to a protected ground will still qualify for relief under CAT. However, because it only

11

Opened for signature February 4, 1985, G. A. res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in L.L.M. 535 (1985). 12 8 CFR § 208.16(c)(2). 13 See Ramsameachire v. Ashcroft, 357 F.3d 169 (2nd Cir. 2004).

12-7

Chapter 12

USCIS and immigration judges use their powers of discretion over asylum applications sparingly, as compared to other forms of relief such as cancellation of removal or waivers for admission. Therefore, practitioners should never assume that negative equities that would normally result in the discretionary denial of relief applications, would lead to the same result in the context of asylum. For example, prior immigration violations, a history of immigration fraud, or criminal convictions that would generally have a significant negative discretionary impact, may not have the same impact on an asylum application. This is particularly so if the actions relating to the negative equities are related to the applicant’s past persecution or fear of future persecution.

protects those in fear of torture, and not the broader harm of persecution, it affords a more limited protection than asylum or withholding.

Chapter 12

There are two types of relief possible under the CAT: withholding of removal and deferral of removal. There are no criminal bars to deferral of removal. Withholding of removal under CAT has fewer bars than withholding of removal, but the applicant carries a heavy burden of proof because she must show that it is more likely than not that she will be tortured upon deportation to her home country. The regulations provide that the same mandatory denial grounds that apply to withholding of removal under the INA, also apply to CAT relief (or withholding of removal under CAT). These are: • • • • •

Persecution of others; Conviction of a particularly serious crime; 14 Committed a serious non-political crime before coming to the U.S.; Danger to U.S. security; and Participation in Nazi persecution, genocide, torture, or extrajudicial killing.

If the mandatory denial grounds apply to an applicant for withholding of removal under CAT, she would still be eligible for protection under CAT in the form of deferral of removal if she has otherwise been found eligible for CAT protection. 15 While the elements of proving eligibility for deferral of removal are identical to withholding of removal under CAT, deferral of removal differs from withholding of removal under CAT in the following ways: •

Does not give basis to apply for employment authorization; and

•

Requires the immigration court to reopen removal proceedings and consider whether to terminate deferral, if government files a motion to reopen with previously unavailable evidence “that is relevant to the possibility that the alien would be tortured in the country to which removal has been deferred.”

PRACTICE TIP: If your client has criminal convictions, which bar many forms of relief, make sure you screen for fear of harm upon return to the client’s home country. Your client might qualify for relief under the Convention Against Torture despite her criminal record. If the applicant can demonstrate that it is ‘more likely than not’ she would face torture if returned, the immigration judge must grant CAT relief. CAT protection, like withholding, is mandatory and not discretionary. Also, like withholding, CAT protection only grants the recipient the right to live and work in the U.S. and does not provide a path to permanent status, confer benefits for family members or include the right to travel. CAT relief is limited in its purpose of protecting people from torture to the specified country and does not bar removal to another country that the individual may be granted permission to enter.

14

Note that the standard for determining whether someone has been convicted of a particularly serious crime is distinct for withholding and asylum. See § 12.6. 15 8 CFR § 208.17.

12-8

Tab Position 1

Immigrant Legal Resource Center June 2017

For further information regarding the Convention Against Torture, see Essentials of Asylum Law, an ILRC publication (www.ilrc.org/publications).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 12.5 The “Asylum Clock” and Qualifying for Work Authorization

For applications lodged initially with the immigration court, the clock will continue to run unless the applicant causes delay, such as: • • •

The Respondent declines an expedited hearing; The Respondent asks for a continuance for any reason; or The Respondent requests a change of venue.

If the immigration judge denies the application (even if an appeal is filed with the BIA or denied due to abandonment if the respondent failed to appear for an asylum hearing), the clock stops. If the clock is stopped due to a delaying motion filed by the respondent, or if proceedings are reopened or remanded for purposes of pursuing asylum, it is important for practitioners to ensure that at their client’s next hearing before the immigration court, the clock is re-started by the court. A lawsuit, known at the ABT case, significantly improved clarity about the asylum clock. 18 The settlement clarifies when the clock will stop and start, and established procedures to ensure asylum applicants have a chance to obtain a work permit. Below are some key provisions of the ABT settlement for asylum-seekers in removal proceedings: A.

Filing Process

In order to start the clock, an applicant may “lodge” an asylum application with an immigration court clerk rather than wait for a hearing before an IJ. A “lodged” application will be considered “filed” for purposes of the asylum EAD clock, and the “lodged” date will start the asylum EAD clock.

16

INA § 208(d)(2), 8 USC § 1158(d)(2). Note that individuals that have filed an asylum application prior to January 4, 1995 or pursuant to the settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (“ABC” cases), or whose applications have been recommended for approval, are all exempt from the asylum clock or waiting period. 18 B.H., et al. v. U.S. Citizenship and Immigration Services, et al., No. 11-02108 (W.D. Wash. filed December 15, 2011) (originally called ABT v. U.S. Citizenship and Immigration Services, et al.) The lawsuit was filed in December 2011 by the American Immigration Council’s Legal Action Center (LAC), the Northwest Immigrant Rights Project (NWIRP), the Massachusetts Law Reform Institute, and the Seattle law firm Gibbs Houston Pauw. For more information about the lawsuit, please visit www.legalactioncenter.org/litigation/asylum-clock. 17

12-9

Chapter 12

Filing an application for asylum does not automatically result in eligibility for work authorization. The statute prohibits the granting of employment authorization until 180 days after the filing of an asylum application. 16 The timeline referred to as the “asylum clock” is the method by which DHS calculates the 180-day waiting period before an asylum applicant is eligible for work authorization. 17 An asylum applicant may file the application for a work permit after 150 days has passed, but the application is adjudicated after 180 days have lapsed.

PRACTICE TIP: An application “lodged” with the court will also be considered “filed” for purposes of the one-year bar. See § 12.6 on the one year bar. B.

Expedited Hearings

Chapter 12

An immigration judge must offer a non-detained applicant a hearing that is at least 45 days out without causing the Asylum Clock to be stopped. This allows applicants and advocates time to prepare an expedited asylum case while not punishing the asylum applicant by stopping the Asylum Clock. C.

Case Remanded after Appeal

When an asylum case is denied by the immigration judge, the Asylum Clock stops throughout the process of appeal to the BIA. However, the clock will start or restart on the date that the BIA remands a case to the IJ for reconsideration of the asylum decision. The applicant’s clock will be credited with the number of days that the case was pending on appeal since the IJ denial, including, if applicable, the days the case was pending at a federal court of appeals. This requirement applies to asylum cases already remanded to and pending before EOIR on the December 3, 2013 implementation date. D.

Notifying Counsel of Reason to Adjourn Hearing

Many asylum applicants are not aware that decisions made at a preliminary hearing in immigration court may stop the asylum EAD clock. The reason given by an IJ for setting the next hearing—the “adjournment code”—determines whether the asylum EAD clock runs or stops. Previously, an IJ might not state the reason for the adjournment. The immigration court must provide written notice to asylum seekers and their counsel about the asylum EAD clock, including the impact of the different hearing adjournment codes on employment authorization. The IJ must state clearly on the record the reason for adjournment. This requirement does not apply to adjournment codes set before the December 3, 2013 implementation date, but the written notice may apply to adjournment codes generally. Case Strategy: Because an applicant can now lodge an application at the window, many applicants will become eligible for work authorization prior to their first master calendar hearing, which is often several months away. This will mean some applicants will prefer to slow down their case and not accept an expedited hearing. Timing of submitting the application and choosing whether or not to expedite a case are both important issues that you should discuss thoroughly with the client. Also note that asylum applications can now be “filed” at the court window. See § 12.6 below. § 12.6 Statutory Bars to Asylum Which Do Not Apply to Withholding of Removal Asylum is a more generous form of relief than withholding, but it also includes several bars which can present hurdles to applicants. There are circumstances in which an applicant who is barred from eligibility for asylum may be eligible for withholding. Of particular note, the oneyear filing rule discussed below does not apply to withholding, nor does the rule of firm

12-10

Tab Position 1

Immigrant Legal Resource Center June 2017

resettlement. If the asylum application was denied for any of the below reasons, the person could still be eligible for withholding of removal: • • • • •

one-year bar; some criminal convictions (aggravated felony bar); firm resettlement; prior denial of asylum or reinstated removal order; and discretion.

Nonetheless, for many fearing harm in their home country, withholding might be the only option because one of the bars to asylum apply. A.

One Year Bar

A person must apply for asylum within one year after arriving in the U.S. 19 This bar is a creation of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (also known as “IIRIRA”). For applications filed after April 1, 1998, an asylum applicant must demonstrate by “clear and convincing” evidence that the asylum application was filed within one year of her last arrival in the U.S. 20 There are two exceptions to the One Year Rule, where there are “changed circumstances” or “extraordinary circumstances” that led to the delay in filing for asylum. The regulations provide a non-exhaustive list of what “changed circumstances” and “extraordinary circumstances” may be. 21 PRACTICE TIP: The one-year rule does not apply to unaccompanied minors under the law enacted by the TVPRA. 22 Unaccompanied minors are exempted from this requirement. The “one-year rule” applies only to asylum and does not apply to withholding of removal. If you cannot convince a judge that one of the exceptions apply to an application filed after one year from the last entry, your client will only be eligible for withholding and relief under CAT. 1. Determining filing date In cases that were affirmatively filed, then referred to court, the filing date is the date the application was initially filed with USCIS. The referral to court does not require a new filing. For cases where the asylum application is filed for the first time in immigration court, it will be considered filed the date it is filed with court clerk, received by mail by the court clerk, or

19

INA § 208(a)(2)(B). INA § 208(a)(2)(B), 8 U.S.C § 1158(a)(2)(B). The implementing regulation, 8 CFR § 208.4(a)(2)(B)(ii) states “The 1-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later.” See also Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008). 21 8 CFR §§ 208.4(a)(4) and 208.4(a)(5). 22 INA § 208(a)(2)(E). 20

12-11

Chapter 12

If none of these bars apply, your client can seek asylum and will likely not need the secondary, mandatory relief of withholding.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

accepted by the judge during a hearing. 23 In order to meet the one-year filing deadline, the asylum application must either be presented at a hearing before a judge or filed with a clerk at the immigration court window. Regardless of the method used to file the application, it is crucial that the applicant not miss the one-year deadline. In the case of defensive asylum applications, where the applicant is filing for the first time, the representative must be mindful of this rule.

Chapter 12

2. Exceptions to the one-year bar 24 The statute provides two exceptions to the one-year rule. The one-year bar will not apply where a “material change in circumstances” has occurred affecting the applicant’s eligibility, or where there are “extraordinary circumstances” that precluded the applicant from filing within the deadline. Both of these exceptions are further detailed in the regulations, at 8 CFR 208.4(a)(5), which list specific circumstances which would qualify an applicant for one of these exceptions. 25 An applicant who files an asylum application past the one-year deadline must identify the specific exception(s) that applies to her application. An applicant can claim more than one exception or factual basis for her failure to file a timely application. a. “Changed circumstances” The first exception is made for “changed circumstances” that affect the person’s eligibility for asylum since she left her homeland. This exception is designed to cover applicants who became eligible for asylum only after arriving in the U.S., due to a change in conditions in their home country, or “(c)hanges in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.” 26 The applicant is required to apply for asylum “within a reasonable period” of having become aware of the changed circumstances. 27 This exception is designed to cover applicants who became eligible for asylum only after arriving in the U.S., due to circumstances that have materially affected the applicant’s eligibility for asylum. The applicant is required to apply for asylum within a reasonable period given those ‘changed circumstances.’ Examples of changed circumstances provided by the regulations include: 1. Changes in conditions in the applicant’s home country (or if the applicant is stateless, in their last country of residence). The Ninth Circuit has emphasized that changed conditions in a home country need not be “an entirely new conflict,” nor does the oneyear bar “preclude an individual who has always feared persecution from seeking asylum

23

EOIR Memorandum, Operating Policies and Procedures Memorandum 16-01: Filing Applications for Asylum. Michael C. McGoings, Chief Immigration Judge. September 14, 2016. Available at: www.justice.gov/sites/default/files/pages/attachments/2016/09/14/oppm_16-01.pdf. 24 The “changed circumstances” and “extraordinary circumstances” exceptions to the one-year bar may be found in the Act at INA § 208(a)(2)(D) and in the regulations at 8 CFR §§ 208.4(a)(4) and 208.4(a)(5). 25 8 CFR § 208.4. 26 8 CFR § 208.4(a)(4). 27 8 CFR § 208.4(a)(4).

12-12

Tab Position 1

Immigrant Legal Resource Center June 2017

because the risk of that persecution increases.” 28 The court noted that an applicant is not required to file for asylum when his claim appears to him to be weak, but instead may wait until circumstances change and the new facts make it substantially more likely that his claim will entitle him to relief. Other courts, in contrast, have interpreted the changed country conditions exception to the one-year rule more narrowly; 29

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

2. Changes in applicable U.S. law, including intervening precedent decisions by the BIA or federal appeals courts. 30

4. The ending of an applicant’s dependent relationship to a principal applicant of a previous application. 33 For example, if an individual had previously been a derivative asylum applicant on his spouse’s application and the marriage is now ending (and the derivative has not yet adjusted status to lawful permanent residence), he can apply for asylum outside of the one-year deadline based on changed circumstances. PRACTICE TIP: Applicants with Criminal Post-Conviction Relief. Circumstances that “materially affect the alien’s eligibility for asylum” should include obtaining of post-conviction relief that removes one of the automatic bars to asylum, such as conviction of a particularly serious crime or aggravated felony. This interpretation is consistent with the text of the statute, and with the policy to require people to apply for asylum as soon as is possible or needed rather than to delay. 34 What constitutes a “reasonable period” after the change in circumstances requires an individualized inquiry. In Matter of T-M-H & S-W-C-, the BIA held that asylum applicants are

28

Vahora v. Holder, 641 F.3d 1038, 1044 (9th Cir. 2011). The court stated that the “proposed exceptions to the one year bar for changed circumstances and extraordinary circumstances were intended to be broad.” 641 F.3d at 1045. 29 See, e.g., Joaquin-Porras v. Gonzales, 435 F.3d 172, 180 (2nd Cir. 2006) (denying asylum applicant who had been in the U.S. for many years had made a trip to his home country and had been beaten by police upon leaving a gay bar); Luciana v. Att’y Gen. of the U.S., 502 F.3d 273, 277 (3rd Cir. 2007) (describing the changed circumstances exception as “narrow”). 30 See Muriuki v. Holder, 406 Fed. Appx. 190, 193 (9th Cir. 2010) (unpublished). 31 See Guan v. BIA, 345 F.3d 47 (2nd Cir. 2003); Siuabalasingam v. Holder, 477 Fed.Appx. 757 (2nd Cir. 2012); Zhang v. U.S. Atty. Gen., 572 F.3d 1316, 1319-20 (11th Cir. 2009). 32 See, e.g., Taslimi v. Holder, 590 F.3d 981, 987 (9th Cir. 2010) (finding filing for asylum seven months after religious conversion was “reasonable” given particular circumstances because the religious conversion ceremony only marked the beginning of the applicant’s process of conversion). 33 8 CFR § 208.4(a)(4)(i)(C). 34 Obtaining post-conviction relief that removes a conviction that is a legal bar to asylum could fall under 8 CFR § 208.4(a)(4)(I)(B), which provides that the changed circumstances include “[c]hanges in objective circumstances relating to the applicant in the United States, including changes in applicable U.S. law, that create a reasonable possibility that applicant may qualify for asylum.”

12-13

Chapter 12

3. Changes in the applicant’s personal circumstances. This may include changes in beliefs or identity or engagement in activities outside the country of feared persecution that place her at risk. This could include recent political activism, 31 coming out as LGBT, or conversion from one religion to another; 32 and

Chapter 12

not entitled to an automatic one-year extension to file their asylum applications following changed circumstances. 35 The Board did not impose a bright line rule regarding how long after a changed circumstance an applicant must file her asylum application. However, the decision cited to DHS’s general expectation that an asylum seeker in valid status seeking an “extraordinary circumstances” exception to the one-year bar apply within six months of her expiration of status. 36 Although it did not draw any specific conclusions, the BIA indicated that in certain circumstances a “reasonable period” may mean less than six months, while in “rare cases” a delay of one year or more after the material change in circumstances, may be justified. USCIS has stated that an “applicant’s education and level of sophistication, the amount of time it takes to obtain legal assistance, any effects of persecution and/or illness, when the applicant became aware of the changed circumstance, and any other relevant factors should be considered.” 37 b. Extraordinary circumstances The one-year filing deadline may also be excused for an applicant that can demonstrate that “extraordinary circumstances” prevented the timely filing of her application. The regulations at 8 CFR 208.4(a)(5) explains this exception. This exception refers to events beyond the applicant’s control that clearly prevented a filing within one year’s time. The regulations specify that extraordinary circumstances are events or factors directly related to the failure to file the application within the one-year deadline. 38 An applicant must show that she did not intentionally create the extraordinary circumstances, and that she filed her asylum application “within a reasonable period given those circumstances.” 39 The regulations list six examples of “extraordinary circumstances,” but indicate that the exception is not limited to the examples listed. Thus, it is important to consider all the circumstances of the applicant to build an argument that the applicant’s late filing should be excused. The specific examples listed in the regulations include: i.

Related to physical & mental health

1. Serious illness or mental or physical disability during the one-year period after arrival in the U.S., including the effects of persecution or violent harm suffered in the past; 2. Death or serious illness or incapacity of applicant’s immediate family member or legal representative. In determining eligibility for this exception, USCIS will consider the degree of interaction between the applicant and the family member affected in addition to their blood relationship. 40 PRACTICE TIP: Providing evidence of “extraordinary circumstances” is one of the main areas of a case where a psychological evaluation from a professional can be useful. For example, such an

35

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010). Matter of T-M-H- & S-W-C-, 25 I&N Dec. at 195. 37 For USCIS’s examples of what constitutes a “reasonable period of time,” see USCIS RAIO, Asylum Division “Asylum Officer Basic Training Course: One-Year Filing Deadline” (March 23, 2009) at 22-24. 38 8 CFR § 208.4(a)(5). 39 8 CFR § 208.4(a)(5). 40 USCIS RAIO, Asylum Division “Asylum Officer Basic Training Course: One-Year Filing Deadline” (March 23, 2009) at 14. 36

12-14

Tab Position 1

Immigrant Legal Resource Center June 2017

evaluation can help to show that a person was unable to function normally because of severe Post-Traumatic Stress Disorder (PTSD).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

ii. Related to legal status 3. Legal disability, such as suffering from a mental impairment during the one-year period after arrival in the U.S. Note here that the recently enacted Trafficking Victims Protection and Reauthorization Act (TVPRA) of 2008 confirmed that the one-year rule does not apply to unaccompanied minors. 41

iii. Related to a clerical filing error 5. Applicant filed asylum application within the one-year period, but it was rejected by USCIS as not properly filed. This could mean that the application did not include the required signatures, photos, number of copies, etc. If an application was timely filed before April 16, 1998, but was closed and reopened by USCIS, or was administratively closed by an immigration judge, an applicant will meet this exception. 44 iv. Ineffective assistance of counsel 6. Ineffective assistance of counsel, provided that the applicant (1) provides an affidavit detailing the agreement with counsel and the representations counsel made or did not make to the applicant; (2) informs counsel of the allegations and provides an opportunity to respond; and (3) files a complaint against counsel with appropriate disciplinary authorities or explains why such a complaint is not being filed. The requirements specified in the regulations to show that ineffective assistance of counsel resulted in late filing, are a codification of the Board’s decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). In certain circumstances, the Ninth Circuit has held that when ineffective assistance of counsel was plain on its face, strict compliance with Matter of Lozada was not required for the purposes of a motion to reopen based on ineffective assistance of counsel. 45 However, in many such cases, the immigrant had at least partially complied with the Lozada

41

See 6 USC § 279. The Ninth Circuit has held that applying within six months after losing other status is presumptively reasonable. Singh v. Holder, 656 F.3d 1047, 1056 (9th Cir. 2011). 43 USCIS RAIO, Asylum Division “Asylum Officer Basic Training Course: One-Year Filing Deadline” (March 23, 2009) at 17-18. 44 USCIS RAIO, Asylum Division “Asylum Officer Basic Training Course: One-Year Filing Deadline” (March 23, 2009) at 20. 45 Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000); Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000). 42

12-15

Chapter 12

4. Applicant maintained lawful immigration status until a reasonable period before the filing of the asylum application. 42 If an applicant was inspected and admitted using fraudulent documents, USCIS will not consider her eligible for this exception. Further, if an applicant was granted humanitarian parole for the purpose of submitting an asylum application, she will not qualify for this exception. 43

Chapter 12

requirements. 46 Thus, in the context of the extraordinary circumstances exception for the one-year deadline, if the immigrant shows he or she complied with at least part of the Lozada requirements, and the ineffective assistance of counsel was plain on its face, the immigrant may meet the one-year bar exception. This argument was raised in the case of Tamang v. Holder, 598 F.3d 1083, 1089-90 (9th Cir. 2010), although the Ninth Circuit found that the ineffective assistance of counsel was not plain on its face from the record and the alien had not complied with any of the Lozada requirements. Although the regulations specify ineffective assistance of counsel as an example of an extraordinary circumstance, a filing delay caused by a non-attorney’s deceit may constitute a distinct and sufficient “extraordinary circumstance.” In Viridiana v. Holder, the Ninth Circuit found that an immigration consultant’s failure to file an asylum application, despite his assurances, constituted extraordinary circumstances that excused the late filing. 47 The court emphasized that although a non-attorney’s misrepresentation did not fall under 8 CFR § 208(a)(5)(iii), which is reserved for the ineffective assistance of lawyers, it still justified the immigrant’s failure to timely submit the application. The court emphasized that the list of examples found in the regulations is non-exhaustive and other circumstances may also excuse a late filing. v. Ignorance of the law is not an exception Practitioners must be aware that mere ignorance of the availability of asylum or the one-year bar is not considered sufficient to qualify for an exception. For example, an applicant will not qualify for an exception to the one-year bar if she did not learn about the possibility of filing for asylum because as an immigrant, she did not know the laws of the United States. If an applicant did not discover the possibility of asylum or specifically the one-year bar until after it had passed, she must prove that extraordinary circumstances created a scenario that prevented her from discovering her legal options. For example, an applicant can demonstrate that a mental illness resulting from the persecution she has suffered prevented her from taking the steps necessary to determine her legal options. PRACTICE TIP: Providing evidence of “extraordinary circumstances” is one of the main areas of a case where a psychological evaluation from a professional can be useful. For example, such an evaluation can help to show that a person was unable to function normally because of severe Post-Traumatic Stress Disorder (PTSD). Extraordinary circumstances are case-specific. It is important to remember the list of possible circumstances provided by regulation is not exhaustive. Be creative and thoughtful about what might have prevented your client from filing on time.

46

See Lo v. Ashcroft, 341 F.3d 934, 938 (9th Cir. 2003) (counsel miscalendaring a removal hearing and causing alien to miss hearing was ineffective assistance); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 824-25 (9th Cir. 2003) (attorney’s failure to file brief constituted ineffective assistance that was “plain on the face of the administrative record”); Rodriguez-Lariz v. INS, 282 F. 3d 1218, 1227 (9th Cir. 2002) (“These factors are not rigidly applied, especially when the record shows a clear and obvious case of ineffective assistance.”) 47 Viridiana v. Holder, 646 F.3d 1230, 1232 (9th Cir. 2011).

12-16

Tab Position 1

Immigrant Legal Resource Center June 2017

USCIS has provided additional examples of what may constitute extraordinary circumstances that are not listed in the regulations. These include severe family or spousal opposition, extreme isolation within a refugee community, profound language barriers, or profound difficulties in cultural acclimatization. 48 Note that in order for these circumstances to qualify for the exception to the one-year rule, they need to have had such a severe impact on the applicant’s functioning that they produced a significant barrier to timely filing.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

3. Judicial review

The Ninth Circuit has held that it has jurisdiction to review the application of the one-year bar as a legal question when the question involves application of law to undisputed facts the court reasoned that that INA § 242(a)(2)(D), which allows circuit courts to review constitutional claims and questions of law, superseded the prohibition laid out in INA § 208(a)(3). 50 In Lumataw v. Holder, 582 F.3d 78 (1st Cir. 2009), the First Circuit also assumed jurisdiction over a legal issue involving whether an applicant actually satisfied the one-year filing requirement. The court held that an asylum application was not untimely filed because the oneyear filing deadline rule had not yet been enacted into law at the time of the applicant’s initial entry. The Sixth Circuit also acknowledged in Almuhtaeb v. Gonzales that a changed circumstances argument for the one-year exception that was based on legal or constitutional issues, not factual issues, would still be within the court’s jurisdiction. 51 However, other circuits have indicated they have no jurisdiction to review the Board’s decision on the one-year bar. 52 This means that if the immigration judge finds that the person is barred from asylum under this rule, the decision will stand in cases arising in these circuits. 53

48

USCIS RAIO, Asylum Division, “Asylum Officer Basic Training Course: One-Year Filing Deadline” (March 23, 2009) at 20. On the other hand, the Ninth Circuit has held that the applicant’s hope that conditions would improve in his home country did not constitute extraordinary circumstances that excused failure to meet the one-year filing deadline. Mutuku v. Holder, 600 F.3d 1210, 1212 (9th Cir. 2010). 49 See Restrepo v. Holder, 610 F.3d 962, 964 (7th Cir. 2010); Gomis v. Holder, 571 F.3d 353, 358 (4th Cir. 2009) (reviewing how the issue has been treated by various circuits); Hana v. Gonzales, 503 F.3d 39, 42 (1st Cir. 2007); Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007) (finding no jurisdiction over the BIA’s determinations that an asylum application was untimely and that there were no extraordinary circumstances excusing the delay); Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) (noting that the statute’s jurisdictional bar applies both to the BIA’s determination that the petition was untimely and to its decision that no exception applies). 50 Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). See also Khunaverdiants v. Mukasey, 548 F.3d 760, 765 (9th Cir. 2008). 51 Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006). 52 See Footnote 26, see also Zhu v. Gonzales, 493 F.3d 588, 594, 595 (5th Cir.2007); Ngure v. Ashcroft, 367 F.3d 975, 989 (8th Cir.2004); Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3rd Cir.2006).

12-17

Chapter 12

Some courts of appeal have held that they do not have jurisdiction to review the agency’s finding that an asylum application is time-barred. 49 This determination is based on the INA’s limitation on judicial review under INA § 208(a)(3), which prohibits federal courts from reviewing a decision of the Attorney General under INA § 208(a)(2), which discusses the one-year deadline.

Chapter 12

B.

Conviction of an Aggravated Felony

While both asylum and withholding bar eligibility for someone convicted of a “particularly serious crime,” the standard for what constitutes such a crime is distinct for each form of relief. Conviction of an aggravated felony is an absolute bar to asylum, but this is not necessarily true for withholding. 54 Aggravated felonies are defined in INA § 101(a)(43). Some examples are conviction of drug trafficking, document fraud with a sentence of at least one year imposed, alien smuggling, a crime of violence or theft or burglary with a sentence of at least one year imposed, child molestation, money laundering (over $10,000) and murder. Several of the crimes carry the requirement that the sentence imposed be at least one year. See discussion in Chapter 5. For applications filed on or after April 1, 1997, an aggravated felony conviction is considered to be a particularly serious crime that bars withholding eligibility if the applicant has been sentenced to an aggregate term of imprisonment of at least five years. 55 This is distinct from asylum, for which any aggravated felony conviction will bar an applicant from eligibility. However, a crime with less than a five-year sentence, or that is not an aggravated felony, might still be held to be a particularly serious crime. 56 The adjudicator should weigh several factors, discussed in Matter of Frentescu, as modified by Matter of N-A-M-, to reach a determination as to whether the crime is particularly serious. See discussion in § 15.4. 57 C.

Firm Resettlement

A person who was “firmly resettled in another country prior to arriving in the United States” is barred from asylum. 58 Firm resettlement is defined in 8 CFR § 208.15. This bar does not apply to withholding of removal. Under the regulation, a person is considered to be firmly resettled if “he entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” 59

53

The applicant may appeal the immigration judge’s decision to the Board of Immigration Appeals, but, in practice, the Board rarely overturns the IJ’s decision on this issue. 54 INA § 208 (B)(i). 55 See INA § 241(b)(3)(B). The language about the five-year sentence was added to the statute with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Prior to 1996, the BIA applied a rebuttable presumption that a conviction for an aggravated felony with a sentence of less than five years was for a “particularly serious crime”; there is no longer such a presumption. See In re S-S, 22 I&N Dec. 458 (BIA 1999). 56 Advocates should know that the Third Circuit has set a more stringent threshold, requiring offenses to be aggravated felonies before they can be considered “serious crimes.” Alaka v. Att'y Gen., 456 F.3d 88, 104105 (3rd Cir. 2006). 57 The BIA abolished the presumption that an aggravated felony conviction, for which the noncitizen received a sentence of less than five years’ imprisonment, constituted a disqualification for withholding of removal. In re S-S-, 22 I&N Dec. 458 (BIA 1999), modifying Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996). However, the Attorney General (AG) has voiced an exception for aggravated felonies involving unlawful trafficking in controlled substances, which does presumptively constitute a particularly serious crime within the meaning of INA § 241(b)(3)(B)(ii). See Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). 58 INA § 208(b)(2)(A)(vi).

12-18

Tab Position 1

Immigrant Legal Resource Center June 2017

There are two exceptions in the regulations that allow an individual who received an offer of permanent status in another country to avoid being considered firmly resettled: 1. An individual will not be considered firmly resettled if “the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.” 60 Factors to be considered include the applicant’s rights to employment, to own property, to obtain housing or enjoy “other rights and privileges,” such as travel, public relief or education, etc.; and

In the 2011 case of Matter of A-G-G-, 62 the BIA addressed a circuit split and issued a new framework for determining whether an asylum applicant has been firmly resettled. Some circuits, including the Third, Seventh and Ninth, had used a “direct offer” test to determine whether an individual had been firmly resettled, focusing their inquiry on whether the government of a third country had directly offered the immigrant some type of permanent residence that would allow her to stay in that country indefinitely in some kind of official status. 63 Other circuits, including the Second and Fourth, had used a “totality of the circumstances” test that looked at a government offer of permanent residence as only one factor among many to determine whether an immigrant had been firmly resettled. 64 The BIA’s new standard begins the firm resettlement analysis with evidence of an offer of permanent status in the third country, but permits the existence of an offer to be proven by either direct or indirect evidence. This new framework involves a four-step analysis: First, DHS bears the burden of presenting prima facie evidence of an offer of firm resettlement. In order to do so, DHS should first attempt to produce direct evidence of an offer, such as government documents specific to the asylum applicant that indicate her ability to stay in a country indefinitely. This may include a passport, travel document, or proof of refugee status in the immigrant’s name. If direct evidence of an offer is unavailable, the government may meet its burden by producing indirect evidence that an offer of firm resettlement has been made “if it has a sufficient level of clarity and force to establish that an alien is able to permanently reside in the country.” 65 Indirect evidence may include: 59

8 CFR § 208.15. 8 CFR § 208.15(b). 61 8 CFR § 208.15(a). 62 25 I&N Dec. 486 (BIA 2011). 63 See Diallo v. Ashcroft, 381 F.3d 687, 693 (7th Cir. 2004); Abdille v. Ashcroft, 242 F.3d 477, 486 (3rd Cir. 2001); Maharaj v. Gonzales, 450 F.3d 961, 972 (9th Cir. 2006) (en banc). 64 See Sall v. Gonzales, 437 F.3d 229, 233 (2nd Cir. 2006); Mussie v. U.S. INS, 172 F.3d 329, 331 (4th Cir. 1999). 65 Matter of A-G-G-, 25 I&N Dec. 486, 502 (BIA 2011). In an unpublished decision, the Ninth Circuit remanded a case because the Board had not applied the “offer test” consistent with Maharaj and A-G-G-, to show an offer of firm resettlement was made, implying that the offer test of the Ninth is consistent with A60

12-19

Chapter 12

2. An individual will not be considered firmly resettled if her entry into that country was a necessary consequence of fleeing persecution, she stayed in the country only as long as needed to arrange onward travel, and she did not establish significant ties in the country. 61

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

• • • • • • • •

Immigration laws or refugee processes of the country of proposed resettlement; Length of stay in a third country; The asylum seeker’s intent to settle in the third country; Family ties in the third country; Business and property connections in the third country; Other social and economic ties developed by the asylum seeker in the third country; Receipt of government benefits or assistance, such as assistance for rent, foot and transportation; or Whether the asylum seeker had legal rights normally given to people who have some official status, such as the right to work and the right to enter and exit the country. 66

The second step of the firm resettlement framework allows the asylum seeker to rebut DHS’s prima facie evidence by showing that an offer has not, in fact, been made or that she would not actually qualify for permanent status. The immigrant may not, however, rebut evidence of an offer of firm resettlement by showing that she refused to accept an offer, or failed to renew permanent residence. 67 Under the third step, the immigration judge will consider the totality of the evidence presented to determine whether the applicant has rebutted DHS’s evidence of an offer of firm resettlement. Finally, if the immigration judge finds that the immigrant has been firmly resettled, the burden shifts to the applicant to establish that she meets one of the two regulatory exceptions to firm resettlement discussed above. 68 D.

Previous Asylum Denial

A person whose prior application for asylum has been denied may not apply for asylum. 69 There is an exception for “changed circumstances” which materially affect the applicant’s eligibility for asylum.” 70 E.

Reinstatement of Removal

A person may not apply for asylum if he is subject to Reinstatement of Removal. 71 DHS reinstates a prior order of removal for persons who have reentered the U.S. illegally “after having

G-G- and still the correct standard. In so doing, the IJ specifically rejected circumstantial factors such as length of time and schooling as “totality of the circumstances” factors. It is unclear whether the Ninth Circuit will accept circumstantial evidence to show an offer of firm resettlement was made. See Haghighatpour v. Holder, 446 Fed.Appx. 27 (9th Cir. 2011). 66 See Matter of A-G-G-, 25 I&N Dec. at 502 (citing Maharaj v. Gonzales, 450 F.3d at 974; Sall v. Gonzales, 437 F.3d at 235; Diallo v. Ashcroft, 381 F.3d at 694; Abdille v. Ashcroft, 242 F.3d at 487; Mussie v. U.S. INS, 172 F.3d at 331-32). 67 Matter of A-G-G-, 25 I&N Dec. at 503 (citing 8 CFR § 1208.15). See also Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir.) (expiration of alien’s residence permit after entry into the U.S. does not preclude finding of firm resettlement in the United Arab Emirates). 68 Matter of A-G-G-, 25 I&N Dec. at 503. 69 INA § 208(a)(2)(C). 70 INA § 208(a)(2)(D). 71 INA § 241(a)(5).

12-20

Tab Position 1

Immigrant Legal Resource Center June 2017

been removed or having departed voluntarily, under an order of removal.” 72 As with the previous four bars to asylum (A-D) immediately above, such persons are eligible to apply for withholding of removal. F.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Discretion

An immigration judge might deny asylum on discretion for a number of reasons. But the exercise of discretion must be reasonable and for clearly stated reasons. One court suggested that asylum should be denied in the exercise of discretion “only on the basis of genuine compelling factors” because so much is at stake for the applicant. 73 Factors to be considered include the applicant’s safety, the danger of repatriation from a third country, and the applicant’s ties to this country. 74 Thus, usually one would need more than just that one negative factor to outweigh a genuine wellfounded fear of persecution. Because USCIS and immigration judges use their powers of discretion over asylum applications sparingly, as compared to other forms of relief such as cancellation of removal or waivers for admission, practitioners should never assume that negative equities that would normally result in the discretionary denial of relief applications, would lead to the same result in the context of asylum. For example, prior immigration violations, a history of immigration fraud, or criminal convictions that would generally have a significant negative discretionary impact, may not have the same impact on an asylum application. This is particularly so if the actions relating to the negative equities are related to the applicant’s past persecution or fear of future persecution. While asylum is discretionary, withholding is mandatory. Anyone who meets the higher standard of withholding and is not otherwise barred must be granted that form of protection regardless of any negative factors. § 12.7 Bars to Both Asylum and Withholding of Removal The following section provides an overview of the statutory bars to both asylum and withholding. They are: 1. Persecution of others; 2. Conviction of a particularly serious crime; 3. Commission of a serious non-political crime before coming to the U.S.; 72

INA § 241(a)(5). Hernandez-Ortiz v. INS, 777 F.2d 509, 519 (9th Cir. 1985) (superseded by statute on other grounds, 8 USC § 1158(b)(1)(B)(i)). 74 Matter of Pula, Int. Dec. 3033 (BIA 1987). 73

12-21

Chapter 12

A judge may look to negative factors in a particular case to deny the case as a matter of discretion. An immigration judge may deny asylum on the basis of an applicant’s criminal activity, for example, even though they otherwise meet the refugee definition. As we discussed above, a person who is convicted of certain crimes (aggravated felony, particularly serious crime) is barred from applying for asylum. If the person is involved with less serious activities, the person is not barred, but the judge may use that criminal record to deny asylum as a matter of discretion. In this scenario, it is helpful to submit evidence of the more positive aspects of the person’s life to outweigh the bad fact.

Tab Position 1

Immigrant Legal Resource Center June 2017

4. Danger to U.S. security; 5. Terrorist activities; and 6. Safe Third Country. These mandatory bars (termed “exceptions” in the statute) apply to applications filed on or after April 1, 1997, and are discussed in detail below. 75

Chapter 12

A.

Persecution of Others

A person who persecutes others on account of one of the enumerated grounds (race, religion, nationality, membership in a particular social group, or political opinion) is ineligible for asylum and withholding. INA § 208(b)(2)(A)(i) (asylum); INA § 241(b)(3)(B)(i) (withholding). This could apply to someone who was in the army or rebel forces if the person “persecuted” others. A person has not “persecuted others” if he or she simply participated as a regular soldier and fought against other combatants in a war. PRACTICE TIP: If an applicant may have hurt or killed someone and you want to know if they are a persecutor, it is useful to ask: would the victim qualify for asylum? In other words, was the harm on account of a protected ground? Was it on account of race, religion, political opinion, etc.? If not, there is an argument that the applicant should not be barred from asylum. 76 The government initially bears the burden of proof with respect to the “persecution of others” bar to asylum. 77 However, if “the evidence indicates that the applicant engaged in such conduct,” the burden shifts to the applicant to prove by a preponderance of the evidence that he did not. 78 It is difficult to determine if someone is a persecutor when they are forced to be a part of a group or forced to assist in an activity under threat of harm. When determining whether an asylum applicant “assisted” in persecution, courts formerly looked to the U.S. Supreme Court’s language in Fedorenko v. United States. 79 In Fedorenko, the Court distinguished between “an individual who did no more than cut the hair of female inmates before they were executed” and a “guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp,” finding that the latter fit within the statutory language regarding assistance in the persecution of civilians, while the former did not. 80

75

See 8 CFR § 208.13(c)(1); INA § 208(a)(2), § 208(b)(2)(A). The BIA has held that the personal motive of the applicant who is alleged to have persecuted is not relevant. What is relevant is whether the applicant assisted or participated in persecution that was on account of one of the five protected grounds. Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017). 77 8 CFR § 208.13(c). 78 8 CFR § 208.13(c). 79 Fedorenko v. United States, 449 U.S. 490 (1981). 80 Fedorenko, 449 U.S. at 538, n. 34. See, e.g., Parlak v. Holder, 578 F.3d 457, 470 (6th Cir. 2009) cert. denied, 130 S. Ct. 3445, 177 L. Ed. 2d 323 (U.S. 2010) (smuggling weapons to aid the Kurdistan Workers Party in committing violence against Turks constitutes “assistance in persecution”); Miranda Alvarado v. Gonzales, 449 F.3d 915, 933 (9th Cir. 2006) (translating prisoners’ responses during torture interrogations qualified as “assistance in persecution” under Fedorenko); Xie v. INS, 434 F.3d 136, 144 (2nd Cir. 2006) 76

12-22

However, Fedorenko also explained that the participation or assistance in persecution need not be an individual’s voluntary act, which is no longer good law. 81 Under Fedorenko, the bar could apply even where the individual was forced to engage in acts of persecution, such as where young men are conscripted or forcibly recruited into the armed forces. The BIA determined that “assisting” could include non-voluntary or compelled activities, and it was necessary to look at the objective effect of the persecution instead of at the persecutor’s state of mind. 82 Under this old decision, therefore, a person could be barred from asylum and withholding even where he or she was in turn being persecuted by being forced to execute the persecutory act. 83

Judicial guidance in regards to the persecutor bar is not consistent across all circuit courts, and practitioners are advised to look for precedential cases in their jurisdiction if they have a complicated case involving “persecution of others.” Factors such as the level of association with a persecuting group, or prior knowledge on the part of the applicant, also affect the application of the persecutor bar. In the Ninth Circuit, an immigrant has “assisted” in persecution only if she had “an active personal involvement in persecutory acts” (emphasis added). 88 In Vukmirovic v. Ashcroft, the Ninth Circuit Court held that the immigration judge should not have held that participation in an armed opposition group, solely for self-defense purposes,

(transporting captive women to undergo forced abortions constituted “assistance in persecution” under Fedorenko). 81 Fedorenko, 449 U.S. at 490. 82 Matter of Rodriguez-Majano, 19 I&N Dec. 811 (BIA 1988). 83 Matter of McMullen, 19 I&N Dec. at 96-97. 84 Negusie v. Holder, 555 U.S. 511 (2009). 85 In Negusie v. Holder, 555 U.S. 511 (2009), the asylum petitioner was forced to assist in the mistreatment of prisoners in Eritrea under threat of execution. 86 While duress is a valid defense to the persecutor bar, it is not a valid defense to the “material support” bar, which relates to terrorist activities. Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The material support bar is discussed in further detail at Subsection E below. 87 Nguyen v. Holder, 336 Fed. Appx. 680, 682 n.1 (9th Cir. 2009). 88 Laipenieks v. INS, 750 F.2d 1427, 1431 (9th Cir. 1985) (reversing BIA’s denial of asylum). Laipenieks is the controlling law in the Ninth Circuit. Under Laipenieks, “mere membership in an organization” will not bar an applicant from relief. Whether an applicant assisted in the persecution of others “requires a particularized evaluation of both personal involvement and purposeful assistance in order to ascertain culpability.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006). See also Kumar v. Holder, No. 08-72119, 2013 U.S. App. LEXIS 18057 (9th Cir. 2013). The Second Circuit generally agreed in Gao v. United States Attorney General, 500 F.3d 93, 99 (2nd Cir. 2007).

12-23

Chapter 12

Fedorenko is no longer settled law for the holding that even involuntary assistance in persecution will still trigger the persecutor bar. In 2009 the U.S. Supreme Court held in Negusie v. Holder, 84 that there may be an exception to the persecutor of others bar where an individual was forced or coerced to persecute another. 85 In other words, there may be an exception when persecution of others was committed under duress. 86 But Fedorenko remains a relevant case in this area of law, as the Ninth Circuit pointed out in Nguyen v. Holder, “Negusie does not affect our reliance on Fedorenko to understand what kind of conduct constitutes persecution or assistance in persecution.” 87

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

constituted persecution of others. 89 The First Circuit has prohibited the application of the persecutor bar in the absence of a finding that the individual involved had actual knowledge that he was engaged in the persecution of others. 90 The Seventh Circuit has recognized that a line may be drawn between those who have attacked military targets and those who have harmed innocent civilians suggesting that the term “persecution” may be construed to exclude military operations. 91 The Sixth Circuit agreed that both a nexus between the applicant’s behavior and the persecution, as well as “some level of prior or contemporaneous knowledge” is required. 92 But in many circuits, the “assisted” in persecution language has been interpreted broadly. 93 B.

Conviction of a Particularly Serious Crime

The statute bars a person who has been convicted of a particularly serious crime in the U.S. from obtaining asylum or withholding of removal. INA § 208(b)(2)(A)(ii) (asylum); INA § 241(b)(3)(B)(ii) (withholding). While this is a bar to both asylum and withholding, the standard is somewhat different for each. The statute bars a person from attaining asylum who, “having been convicted of a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” 94 Note that U.S. courts have held that an individual convicted of a particularly serious crime is automatically considered to constitute a danger to the community of the United States. In other words, this bar is triggered by a conviction of a particularly serious crime, and the government is not required to separately prove that the individual poses a danger to the community. 95 While the automatic bar for an aggravated felony is unique to asylum, remember that an aggravated felony with a 5-year sentence is considered a particularly serious crime that bars withholding. Nonetheless, a crime with less than a five-year sentence might still be held to be a particularly serious crime for withholding. Likewise a crime that is not considered an aggravated 89

Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004). Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007), appeal after remand, 638 F.3d 354 (1st Cir. 2011), opinion after remand, 676 F.3d 1 (1st Cir. 2012). See also Diaz-Zanatta v. Holder, 558 F.3d 450, 460 (6th Cir. 2009) (finding that the persecutor bar may only apply if the person “had some level of prior or contemporaneous knowledge” that their action would be used for persecution). 91 Mousa v. INS, 223 F.3d 425, 429 (7th Cir. 2000). 92 Diaz-Zanatta v. Holder, 558 F.3d 450, 455 (6th Cir. 2009). 93 See, e.g., Hammer v. INS, 195 F.3d 836, 843 (6th Cir. 1999) (holding that being an armed guard at a Nazi camp was enough to show persecution, even with no evidence of a specific act or incident) (arguably overruled or at least limited by Diaz-Zanatta); Maikovskis v. INS, 773 F.2d 435 (2nd Cir. 1985), cert. denied, 106 S.Ct. 2915 (1986); Kulle v. INS, 825 F.2d 1188 (7th Cir. 1987). See also Stephen J. Massey, Individual Responsibility for Assisting Nazis in Persecution, 71 Minn. L.R. 97 (1986). 94 See also the regulations at 8 CFR § 208.13(c). 95 See Matter of L-S-, 22 I&N Dec. 645, 650 (BIA 1999), citing Matter of K-, 20 I&N Dec. 418 (BIA 1991), aff’d Kofa v. INS, 60 F.3d 1084 (4th Cir. 1995). The Ninth Circuit has upheld the Board’s interpretation as “reasonable” and agreed with the Eleventh Circuit’s view that the “statute sets forth a cause and effect relationship: the fact that the alien has committed a particularly serious crime makes the alien dangerous within the meaning of the statute.” Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987) (quoting Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir. 1986)). 90

12-24

Tab Position 1

Immigrant Legal Resource Center June 2017

PRACTICE TIP: The adjudicator is not limited to the record of conviction in deciding whether an individual has committed a particularly serious crime. Therefore, if your client has a conviction that may be considered a particularly serious crime, it is important to prepare the client for 96

Advocates should know that the Third Circuit has set a less stringent threshold, requiring offenses to be aggravated felonies before they can be considered “serious crimes.” Alaka v. Att'y Gen., 456 F.3d 88, 104105 (3rd Cir. 2006). 97 Matter of N-A-M-, 24 I&N Dec. 336, 343 (BIA 2007). In Matter of N-A-M-, the BIA clarified what information may be used to make the particularly serious crime determination. While recognizing that it had previously held that certain crimes may be classified as per se particularly serious crimes without proceeding to an individualized examination, the Board stated that it has “generally examined a variety of factors” and considered individualized circumstances. It explained that once the elements of an offense are found to potentially bring it into the category of a particularly serious crime, the court should consider “all reliable information and [is] not limited to reviewing the record of conviction and sentencing information.” 98 Matter of N-A-M-, 24 I&N Dec. 336, 343 (BIA 2007). 99 Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999). 100 Matter of Garcia Garrocho, 19 I&N Dec. 423 (BIA 1986) (burglary with aggravating circumstances under New York Penal Law 140.30 (1981)). 101 Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985) (robbery); Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997) (robbery with deadly weapon, with sentence imposed of two and a half years is an aggravated felony and a particularly serious crime, based on nature of conviction, underlying circumstances, sentence, etc.); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) (robbery where person pulled a chain from victim’s neck and the victim fell). 102 Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) (menacing under Colo. Rev. Stat. § 18-3-206(1)). 103 Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). 104 Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015). 105 Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir. 2011).

12-25

Chapter 12

felony may still be considered a particularly serious crime. 96 The factors considered in determining whether a crime is particularly serious apply in both cases. In determining whether a crime is particularly serious, the BIA held that factors taken into account include: (a) the nature of the conviction; (b) the sentence; (c) whether it was a crime against a person or property; (d) whether the person is a danger to society. 97 The adjudicator should weigh several factors, discussed in Matter of Frentescu, as modified by Matter of N-A-M-, to reach a determination as to whether the crime is particularly serious. In Matter of N-A-M-, the Board found that a conviction for felony menacing, which is not an aggravated felony, is a particularly serious crime. 98 Using the Frentescu criteria, the Board has held that a conviction for alien smuggling with a threemonth sentence (an aggravated felony) is not a particularly serious crime for withholding purposes, 99 while residential burglary with aggravating factors, 100 robbery and assault with a deadly weapon, 101 murder, a nonconsensual sexual act combined with threatening knives, 102 and drug trafficking 103 have all been found to be particularly serious crimes. More recently, the BIA held, and the Ninth Circuit affirmed, that a felony DUI conviction where driving while having a .08 percent or higher blood alcohol level caused injury to another constitutes a particularly serious crime that barred eligibility for withholding of removal. 104 In Delgado v. Holder, the Ninth Circuit wrote that a “crime is particularly serious if the nature of the conviction, the underlying facts and circumstances and the sentence imposed justify the presumption that the convicted immigrant is a danger to the community.” 105

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

questions regarding the facts surrounding the conviction, and usually prudent to include any mitigating facts about the crime with the declaration accompanying the client’s application. Additionally, you should be aware of what information is contained in the police reports, witness statements, or other documents that DHS may have access to, but which would normally not be considered part of the record of conviction. If the client can rebut any assertions in these documents, you should be prepared to present such evidence to the immigration judge.

Chapter 12

C.

Committed a Serious Non-Political Crime before Coming to the U.S.

An individual is ineligible for both asylum and withholding of removal if there are “serious reasons” to believe that the individual committed a serious nonpolitical crime before coming to the U.S. INA § 208(b)(2)(A)(iii) (asylum); INA § 241(b)(3)(B)(iii) (withholding). This bar does not apply to asylum applications filed before April 1, 1997, though it can be considered in discretion. This category includes crimes that are less serious than a “particularly serious crime,” and it is important to note that the person can be disqualified from asylum and withholding of removal even if there is no conviction. The statute only requires the existence of “serious reasons for believing” that the individual committed such an offense, and thus the BIA has stated that it need not determine that an individual actually committed the crime, only that this condition is met. 106 When assisting applicants with asylum and withholding claims based on their prior affiliation with gangs, it is particularly important to be aware of this bar. 107 The standard for “serious nonpolitical crimes” differs from the one for “particularly serious crimes.” Whether the crime is serious and whether it is nonpolitical are evaluated separately. 108 The BIA considered the following factors when determining if an offense was a “serious crime”: (1) the immigrant’s description of the crime; (2) the turpitudinous nature of the crime according to BIA precedents; (3) the value of any property involved; (4) the length of sentence imposed and served; and (5) the usual punishments imposed for comparable offenses in the United States. 109 The government must establish “probable cause” to believe that the individual committed a serious non-political crime. 110 In McMullen v. INS, 111 the Ninth Circuit held that to determine whether a serious crime was nonpolitical, there is certain criteria to take into account which includes the following: 1) assess whether the individual possessed a political motive; 2) determine if the act was focused on 106

Matter of Ballester-Garcia, 17 I&N Dec. 592 (BIA 1980). The Second and Ninth Circuits have interpreted this to mean that the government must simply establish “probable cause” to believe the alien has committed such a crime. Khouzam v. Ashcroft, 361 F.3d 161, 165-66 (2nd Cir. 2004); McMullen v. INS, 788 F.2d 591, 598 n.2 (9th Cir. 1986) overruled on other grounds, Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005). 107 See Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009). 108 Matter of Ballester-Garcia, 17 I&N Dec. 592, 595 (BIA 1980); Matter of McMullen, 788 F.2d 591 (9th Cir. 1986). 109 Matter of Ballester-Garcia, 17 I&N Dec. 592, 595 (BIA 1980). 110 The Ninth Circuit Court defined the “probable cause” standard as equivalent to the “serious reasons to believe” standard. See Barapind v. Enomoto, 400 F.3d 744, 752 (9th Cir. 2005). To meet this standard, the government must put forth “competent” or sufficient evidence to establish that the accused individual is guilty of committing the applicable crime. 111 McMullen v. INS, 788 F.2d 591, 595 (9th Cir. 1986).

12-26

Tab Position 1

Immigrant Legal Resource Center June 2017

altering the state’s political organization; 3) decide if there is a causal link between the crime committed and the political purpose; and 4) weigh the offense’s proportionality with its objective and the degree of atrocity. 112

D.

Danger to U.S. Security

Under § 208(b)(2)(A)(iv), an immigrant is denied asylum if there are reasonable grounds for regarding her as a danger to the security of the United States. In Cheema v. INS, the Ninth Circuit analyzed whether an immigrant is a danger to security due to terrorist activities, dividing this question into a two-part analysis: (1) whether the immigrant engaged in terrorist activity and (2) whether there are reasonable grounds to believe that the immigrant is a danger to the security of the United States. 114 The Ninth Circuit limited the Cheema ruling to cases in which the application for asylum was filed prior to April 1, 1997 because the decision was based on a version of the asylum statute that preceded the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). IIRIRA eliminated the application of the Cheema two-part analysis on all asylum applications filed after April 1, 1997. 115 The statute now explicitly provides that any immigrant who falls under the terrorist activities bars shall be deemed an immigrant with respect to whom there are reasonable grounds for regarding him a danger to security of the United States. 116 An immigrant is also barred from withholding if he or she constitutes a danger to security. Section 237(a)(4)(A) lists the following as dangers to security: if the immigrant has engaged in or is engaging in any activity to violate any law of the United States relating to espionage or sabotage, or to violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information; if the immigrant has engaged in or is engaging in any other criminal activity which endangers public safety or national security; or if the immigrant has engaged in or is engaging in any activity a purpose of which is the opposition to, or the control or overthrow of, the government by force, violence, or other unlawful means. An immigrant is also barred from withholding for security purposes if the immigrant’s presence in the United States would have potentially serious adverse foreign policy consequences for the United States or if the immigrant participated in Nazi persecution, genocide or the commission of any act of torture or extrajudicial killing, participated in the commission of severe violations of religious freedom,

112

See Matter of McMullen, 788 F.2d 591 (9th Cir. 1986). INS v. Aguirre-Aguirre, 526 US 415 (1999). 114 See Cheema v. INS, 350 F.3d 1035 (9th Cir. 1999). 115 See McAllister v. Attorney General, 444 F.3d 178, 189 (3rd Cir. 2006). 116 INA § 241(b)(3)(B). 113

12-27

Chapter 12

Determining the political nature of a crime is a finer line than one might imagine. In INS v. Aguirre-Aguirre, the Supreme Court held that a Guatemalan man was ineligible for withholding of removal for having committed serious nonpolitical crimes in his home country. 113 The applicant was a Guatemalan student leader who committed the crimes at issue during demonstrations and protests against the Guatemalan government. The crimes included throwing store merchandise on the floor, burning ten buses, and minor assaults and batteries in that he acted to move hesitant passengers off the buses before the vehicles were destroyed.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

engaged in the recruitment or use of child soldiers, or, as explained more fully below, is involved in terrorist activities. 117 E.

Terrorist Activities

Chapter 12

A person is barred from asylum for engaging in terrorist activities. 118 The REAL ID Act of 2005 amended the Immigration and Nationality Act, broadening the definitions related to terrorism and “engaging in terrorist activity,” and generally expanding the grounds for ineligibility based simply on “support” of terrorist activity. 119 This bar has prevented many legitimate asylum applications from being approved and has provoked strong advocacy efforts to limit the reach of the “material support” provision discussed below. These efforts continue and the state of this bar may change as further developments arise. Advocates who believe their client’s case has potential to raise this bar should review the law carefully and consult with an expert if possible. There are three classifications of terrorist organizations. “Tier I” terrorist organizations are those designated Foreign Terrorist Organizations by the Secretary of State under INA § 219. 120 “Tier II” terrorist organizations are otherwise designated by the Secretary of State in consultation with the Secretary of Homeland Security. The current list of “Tier I” and “Tier II” organizations can be accessed by visiting the Department of State’s website. 121 “Tier III” terrorist organizations are any group of two or more individuals, which engages in terrorist activities. An immigrant is inadmissible and barred from asylum and withholding of removal for engaging in terrorist activity if she: • • • • • •

has engaged in a terrorist activity; is engaged in or is likely to engage after entry in any terrorist activity; has incited terrorist activity; is a representative or a member of a terrorist organization; 122 endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization; or has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization. 123

117

See INA § 237(a)(4)(B)–(F). INA § 208(b)(2)(A)(v). 119 For an overview of the terrorism-related changes instituted by the REAL ID Act, see Michael John Garcia, et al., “Immigration: Analysis of the Major Provisions of the REAL ID Act of 2005 CRS Report for Congress,” 41 (May 25, 2005). 120 For a current list of Foreign Terrorist Organizations, see Department of State “Terrorist Exclusion List,” available at www.state.gov/j/ct/rls/other/des/123085.htm. 121 See www.state.gov/s/ct/list/. “Tier I” organizations are listed in the “Foreign Terrorist Organizations” list; and “Tier II” organizations are listed in the “Terrorist Exclusion” list. 122 There is a discretionary exception to this bar in the case of an immigrant who is a representative (i.e., an officer, official or spokesperson) of a terrorist organization or of a political, social or other group that endorses or espouses terrorist activity, if the Attorney General determines “that there are not reasonable grounds for regarding the alien as a danger to the security of the United States.” INA § 208(b)(2)(A)(v). 118

12-28

Tab Position 1

Immigrant Legal Resource Center June 2017

In regards to a person who is a member of a terrorist organization, the statute states that a person will be barred from asylum if they are a member of a “Tier III” organization, in addition to officially identified groups. Such an organization is defined as “two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, activities” such as the following: • • •

The bars for membership in a terrorist organization, solicitation of funds or goods for a terrorist organization, or provision of material support to a terrorist organization do not apply if the organization was a “Tier III,” or undesignated terrorist organization and the immigrant can prove by clear and convincing evidence that she did not know and should not reasonably have known that the organization engaged in terrorist activities. 124 The “material support” language has been the most problematic provision of the terrorismrelated inadmissibility grounds because of its overreaching definition of support to terrorism. It includes “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.” Despite the statute’s language that the bar will not apply where the applicant can prove by clear and convincing evidence that he did not know and should not reasonably have known that the organization to which it provided material support engaged in terrorist activities, in application, this provision has been problematic. This language has prevented many legitimate asylum applicants from having their applications approved. For others, it has meant that their applications for permanent residence or family reunification have been halted, in some cases, indefinitely. For a detailed explanation of the problem created by the terrorist-activity bar to asylum see Human Rights First report “Denial and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum Seekers and Refugees in the United States.” November 2009. The report may be found at www.humanrightsfirst.org. Moreover, there is no duress exception for providing material support. Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013). (“In light of these specific features of the INA, every circuit that has addressed the issue has concluded that there is no implied exception to the material support bar for support given involuntarily or under duress, and that an alien’s sole recourse in cases of coercion is to seek a waiver from the Secretaries of State or Homeland Security.”)

123

INA § 212(a)(3)(B).The spouse or child of an alien who is removable due to terrorist activity is deportable except where the spouse or child did not know or reasonably should not have known of the activity and whom the Attorney General has reasonable grounds to believe has renounced the activity. INA § 212(a)(3)(B)(ii). 124 INA § 212(a)(3)(B).

12-29

Chapter 12

•

gather information on potential targets for terrorist activity; solicit funds either for terrorist activity; solicit an individual to engage in terrorism; to become a member of a “Tier I or Tier II” organization; or to become a member of a “Tier III” organization; provide “material support” for the commission of terrorism; to an individual who the person knows or should know has committed or will commit terrorism; to a “Tier I or II” organization; or to a “Tier III” organization

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

There is a discretionary exception to the bar for terrorist activities, which permits the Secretary of State or the Secretary of Homeland Security to determine, in an exercise of unreviewable discretion, that some terrorist activities bars shall not apply in certain situations. 125 In December 2007, Congress amended the INA, expanding this discretionary authority to exempt some individuals and groups from the application terrorism-related bars. 126 Over the past few years, USCIS has announced exemptions to the material support provision, including in situations where the material support occurred under duress. 127 USCIS policies, however, are not binding on courts. Federal circuit courts that had considered the issue all found that there is no implied exception for duress in the material support bar. 128 Until recently, there had been confusion among adjudicators as to whether duress can be a defense to the material support bar. In Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), the Board of Immigration Appeals foreclosed duress as a defense to the material support bar. The BIA found that Congress clearly did not intend such an exemption, since it created a waiver specifically for individuals subject to the material support bar (although it is a power only given to the State Department and DHS, and is very rarely applied). 129 Currently, duress is not available as a defense to the material support bar. In light of the history of federal courts reaching the same conclusion even before Matter of M-H-Z-, a challenge to the BIA’s interpretation of the provision is unlikely to succeed. 130 Finally, note that the Attorney General must restrict removal to a country where an immigrant’s life or freedom would be threatened because of the immigrant’s race, religion, nationality, membership in a particular social group, or political opinion, unless there are reasonable grounds to believe that the immigrant is a danger to the security of the United States. Any immigrant who falls under the terrorist activities bars shall be deemed an immigrant with respect to whom there are reasonable grounds for regarding as a danger to security of the United States. 131 F.

Safe Third Country

A person cannot apply for asylum if the Attorney General determines that the person may be removed, pursuant to a bilateral or multilateral agreement, to a country in which the person has access to a fair procedure for applying for asylum or equivalent protection. The country must also 125

INA § 212(d)(3)(B). See USCIS Interoffice Memorandum, “Processing the Discretionary Exemption to the Inadmissibility Ground for Providing Material Support to Certain Terrorist Organizations,” May 24, 2007, Jonathan Scharfen. 127 See USCIS Policy Memorandum, “Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Receipt of Military-Type Training Under Duress,” Feb. 23, 2011; USCIS Policy Memorandum, “Implementation of New Discretionary Exemption Under INA Section 212(d)(3)(B)(i) For the Solicitation of Funds or Members under Duress,” Feb., 23, 2011. 128 See Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), for full citations to circuit court cases. 129 See INA § 212(d)(3)(B)(i). 130 An agency’s construction of a statute in which it has special expertise, is entitled to deference unless the interpretation is arbitrary or capricious, or is contrary to the plain meaning of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982, 125 S.Ct. 2688 (2005) (“Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps”). 131 INA § 241(b)(3)(B). 126

12-30

Tab Position 1

Immigrant Legal Resource Center June 2017

be one in which the person’s life or freedom would not be threatened on account of one of the enumerated grounds. 132 The United States has an agreement with Canada providing that a person may apply for asylum in either the U.S. or Canada, but not both. The U.S. entered this agreement with Canada effective Dec. 29, 2004. As written, the agreement applies to withholding and CAT as well, but only the asylum provisions appear in the statute as a bar to applying for relief. 133 The purported goals of the agreement are to limit forum shopping (that is, limiting the applicant’s ability to choose where to apply for asylum based on the applicant’s perception of where he or she has the best chance of winning) and to enhance the efficiency of managing asylum claims. 134

Exception for Unaccompanied Minors: Under the Trafficking Victims Protection and Reauthorization Act (TVPRA), this bar does not apply to unaccompanied minors. Unaccompanied minors are defined in the Homeland Security Act as children who have no lawful immigration status in the United States; who are under eighteen years of age; and who have no parent or legal guardian in the United States who is available to provide care and physical custody. 135 DHS must designate the minor as “unaccompanied” for the TVPRA to apply. This is often done upon the minor’s arrival, which results in an unaccompanied minor designation if the minor is not, at the time of arrival, with a parent or legal guardian. PART TWO: THE LEGAL STANDARD FOR ASYLUM, CORROBORATION, AND CREDIBILITY § 12.8 The Statute: Legal Requirements for Eligibility for Asylum The Refugee Act of 1980, which is incorporated into federal law as § 208 of the Immigration and Nationality Act (INA), provides the eligibility requirements and procedural framework for people who are physically present in the United States to apply for asylum. Persons who are outside the

132

INA § 208(a)(2)(A). INA § 208(a)(2)(A). 134 On November 29, 2004, the DHS and EOIR published the final rules pertaining to the implementation of the U.S.-Canada “Safe Third Country Agreement regarding asylum claims made in transit and at land border ports of entry.” Among other things, these rules highlight the exceptions. An alien who arrives at a U.S. land border POE is exempt from return if he or she: (1) is a citizen of Canada or, not having a country of nationality, is a habitual resident of Canada; (2) has in the U.S. a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who has been granted asylum, refugee, or other lawful status in the U.S., except visitor status; (3) has in the U.S. a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who is at least 18 years of age and has an asylum application pending in the U.S.; (4) is unmarried, under 18 years of age, and does not have a parent or legal guardian in either Canada or the U.S.; (5) is applying for admission at a U.S. land border POE with a validly issued visa or other valid admission document, other than for transit, issued by the U.S., or, being required to hold a visa to enter Canada, was not required to obtain a visa to enter the U.S.; or (6) has been permitted, as an unreviewable exercise of discretion by the DHS, to pursue a protection claim in the U.S. because it was determined to be in the public interest. 81 Interpreter Releases 305, 305–306 (March 8, 2004). 135 6 USC § 279. 133

12-31

Chapter 12

The agreement provides for a pre-screening interview that does not determine the merits of the person’s credible fear, but instead resolves what country should be adjudicating the asylum claim.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

United States must apply for refugee status pursuant to INA § 207 (see note below). Please read INA § 208.

Chapter 12

INA § 101(a)(42) defines “refugee,” which is incorporated by reference into the basic asylum statute at INA § 208(b)(1). The refugee definition is the key to asylum law. A refugee is defined as a person who: “… who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 136 An asylum applicant must meet the definition of a refugee. Thus, she must prove each element contained in the definition: 1. a well-founded fear 137 2. of persecution 138 3. on account of race, religion, nationality, membership in a particular social group, or political opinion. 139 OR, that she experienced such persecution in the past. 140 Federal regulations provide that an applicant may qualify as a refugee “either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.” 141 The word “or” here is important because it tells us that the person can meet the definition in one of two ways: by showing she already has suffered past persecution OR that she has a well-founded fear of persecution in the future, with one of the enumerated grounds being at least one central reason for the persecution. 142 NOTE: Refugee Status. People who are outside the United States and who fear persecution in their home country can apply for refugee status under INA § 207. If the application is approved, the person can enter the U.S. legally as a refugee. The person must meet the same legal test as someone who applies for asylum. A refugee is admitted to the U.S. and can be subject to the grounds of deportation in removal proceedings. A refugee should apply to become a permanent resident after one year in the United States. Adjustment of Status is a possible relief for a refugee facing removal charges. See INA § 209.

136

INA § 101(a)(42)(A). See § 14.4. 138 See § 14.6. 139 See §§ 14.8–14.14. 140 8 CFR § 208.13(b). 141 8 CFR § 208.13(b). 142 See § 14.5. 137

12-32

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 12.9 Well-Founded Fear of Persecution Demonstrating a well-founded fear of persecution involves showing an individual fears a harm that rises to the level of persecution. An applicant can establish a well-founded fear of future persecution either by showing that she has suffered persecution in the past, or by proving there is a “reasonable possibility” that she will suffer such persecution in the future.

Subjective Prong: The first issue is whether the client is actually afraid of return. This is called subjective because it focuses on the feelings and perceptions of the person applying for asylum. The Asylum Officer Basic Training Course materials note that the applicant must demonstrate a “genuine apprehension or awareness of danger.” 146 It is important to keep this in mind when preparing your client’s testimony for court—make sure that you will ask your client questions to illustrate that she feels afraid to return to the country of removal. Objective Prong. Second, the client’s fear must be well-founded or “objectively” reasonable in the real world. In 8 CFR § 208.13, a “well-founded fear” is defined as a “reasonable possibility” of persecution, which has been quantified as a 10% chance of being persecuted. 147 In other words, it is not enough that the person feel afraid; the person must have a reasonable or rational basis for being afraid. Note that this is a more generous standard than that for withholding of removal, which will be discussed later. The objective prong of the well-founded fear analysis can be satisfied in two different ways. The first is to establish that the applicant suffered past persecution, giving rise to the rebuttable presumption of future persecution. Whenever applicable, practitioners should emphasize the existence of past persecution, so as to benefit from the presumption of well-founded fear. The second is to show that the applicant has “good reason” to fear future persecution through “credible, direct, and specific evidence in the record of facts that would support a reasonable fear

143

Id. Cardoza-Fonseca, 480 U.S. 421, at 430-431(1987). 145 Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009); Singh II, 69 F.3d at 378 (citing Shirazi-Parza v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994). 146 AOBTC, Asylum Eligibility Part II: Well-Founded Fear, March 13, 2009, available at www.uscis.gov/USCIS/Humanitarian/Refugees%20&%20Asylum/Asylum/AOBTC%20Lesson%20Plans/ Well-Founded-Fear-31aug10.pdf. 147 INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 448 (1987) (“There is simply no room in the United Nation’s definition for concluding that because an applicant only has a 10 percent chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening.”) 144

12-33

Chapter 12

But what is a “reasonable possibility”? In Cardoza-Fonseca, the Court quantified the standard as a one-in-ten chance that the person will be persecuted. 143 The Supreme Court explained that this standard requires evidence not only of the objective nature of the circumstances that lead to a person’s fear of persecution, but also of the subjective feelings and mental state of the applicant. 144 Thus, an asylum applicant must show that she has a subjectively genuine and objectively reasonable fear of returning to their country of nationality. 145

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

of persecution.” 148 Under that standard, an applicant has established a well-founded fear if she shows that a reasonable person in her circumstances would fear persecution. 149

Chapter 12

§ 12.10 Past Persecution An applicant may meet her burden of proof and qualify for asylum in two ways: either by showing she has suffered past persecution or by showing she has a well-founded fear of future persecution. 150 Past persecution, in some cases, will be sufficient to meet the refugee definition. First, if the applicant can show past persecution on account of a protected ground, it is presumed that the applicant has a fear of persecution in the future. 151 With this presumption, the burden of proof then shifts to the government to show that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or that it would be safe and reasonable for the applicant to relocate within his country. 152 Alternatively, some people who have suffered past persecution may be granted asylum even if they cannot show a well-founded fear of future persecution. 153 This is often referred to as “humanitarian asylum” 154 for which the applicant must either demonstrate (1) compelling reasons for being unwilling or unable to return to the country of persecution arising out of the severity of past persecution, or (2) a reasonable possibility that he or she may suffer other serious harm if removed to that country. 155 Advocates strive to make a showing of past harm rising to the level of persecution, because this is the easiest way for the applicant to meet her burden of showing “well-founded fear.” It is much easier to prove events that have already happened than speculate about what might happen in the future. If the applicant cannot demonstrate past harm, then the burden is on her to demonstrate a well-founded fear of persecution in the future, which will be discussed in the next section.

148

Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000), overruled on other grounds by Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009); Duarte de Guinac, 179 F.3d at 1159. 149 Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987), overruled on other grounds by Pincherskaia v. INS, 118 F.3d 641, 647-48 (9th Cir. 1997); Guevara-Flores v. INS, 786 F.2d 1242, 1249 (5th Cir. 1986); Carcamo-Flores v. INS, 805 F.2d 60, 68 (2nd Cir. 1986); see 8 CFR § 208.13(a). But see Matter of H-L-H& Z-Y-Z, 25 I&N Dec. 209, 209 (BIA 2010) (holding that respondent failed to show, through State Department documents and particularized evidence, that a reasonable person in her circumstance would fear being subjected to forced sterilization or other sanctions, rising to the level of persecution, for having 2 children in US in violation of China’s one child policy). 150 8 CFR § 208.13(b). 151 8 CFR § 208.13(b)(1) (2011). 152 INA § 101(a)(42)(A); 8 USC § 1101(a)(42)(A) (2008) (defining “refugee” as any person who cannot be returned to her country because of “persecution or a well-founded fear of persecution on account of that person’s race, religion, nationality, membership in a particular social group, or political opinion”) (emphasis added). 153 8 CFR § 1208.13(b)(1)(iii); Matter of Chen, 20 I&N Dec.16 (BIA 1989). 154 Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). 155 8 CFR § 208.13(b)(1)(iii)(A)-(B).

12-34

Tab Position 1

Immigrant Legal Resource Center June 2017

A.

Rebuttable Presumption of Well-Founded Fear

For the burden of proof to shift to the government, the persecution the applicant is presumed to fear in the future must be on account of the same ground as the persecution experienced in the past. Where the applicant’s fear of future persecution is unrelated to the past persecution, the applicant continues to bear the burden of establishing that the fear is “well-founded.” 157 In other words, the presumption raised by a finding of past persecution applies only to a fear of persecution based on the original persecution, and not to a fear of persecution from a new source unrelated to the past persecution.” 158 The regulations set out this presumption based on past persecution, and the two ways in which the government can overcome the presumption to show the client no longer has a well-founded fear: a. There has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality or, if stateless, in the applicant’s country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion; or b. The applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality or, if stateless, another part of the applicant’s country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so. 159 Thus, “once the applicant has established that he experienced persecution in the past, the only relevant questions are whether conditions in the country have so changed that the threat no longer exists upon his return,” 160 and whether it would be safe and reasonable for the applicant to relocate to a different area of her country. 156

8 CFR § 208.13(b)(1). This is the same for withholding of removal, “If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim.” 8 CFR § 208.16(b)(1)(i) (2008) (emphasis added). 157 8 CFR § 208.13(b)(1). 158 Id. 159 8 CFR § 208.13(b)(1)(i). 160 Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995) (emphasis in original). Cf. Manzoor v. U.S. Dept. of Justice, 254 F.3d 342, 347-48 (1st Cir. 2001) (“The burden … is on the INS to rebut the presumption by a

12-35

Chapter 12

If the applicant demonstrates past persecution on account of a protected ground, she will be presumed to have a well-founded fear of future persecution on account of that same ground. 156 This is considered a “rebuttable presumption,” because the government can bring evidence to show that the applicant no longer has a well-founded fear, even though the applicant suffered persecution in the past. With a showing of past persecution, because future persecution is presumed, the burden of proof shifts to the government to show, by a preponderance of the evidence, that the applicant’s circumstances have changed to such an extent they no longer have a well-founded fear, or that it would be safe and reasonable for the application to relocate within her country. Unless the government can meet this burden, an applicant showing past persecution qualifies for asylum.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Fundamental change in circumstances

Chapter 12

The regulations allow for denial of asylum even after a showing of past persecution if the government shows a fundamental change in circumstances. 161 This does not specify a showing of “changed country conditions” to overcome the presumption, and thus “other changes in the circumstances surrounding an asylum claim, including a fundamental change in personal circumstances, may be considered, so long as those changes are fundamental in nature and go to the basis of the fear of persecution.” 162 While there is no bright line rule for what constitutes “fundamental change,” the change must be one such that the applicant no longer has a well-founded fear. 163 “Information about general changes in the country is not sufficient.” 164 Rather, the government must “introduce evidence that, on an individualized basis, rebuts a particular applicant’s fear of future persecution.” 165 The “continued safety [of an applicant’s family] does not rebut the [applicant’s] well-founded fear of future persecution when there is no evidence that the family is ‘similarly situated or subject to similar risk, and nothing in the record supports an inference that their safety ensures that [the applicant] will be safe.’” 166 Advocates should argue that despite a change in circumstances or country conditions, a client’s well-founded fear continues, even if it is based on non-physical harms, such as psychological impact. 167

preponderance of the evidence. In our view, this includes the burden on the INS to show that the applicant could reasonably avoid persecution by relocating to another part of the country.”) 161 “There has been a fundamental change in circumstances such that the applicant no longer has a wellfounded fear of persecution in the applicant’s country of nationality or, if stateless, in the applicant’s country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 CFR § 208.13(b)(1)(i)(A). 162 Asylum Procedures, 65 Fed. Reg. 76121-01, 76127 (Dec. 6, 2000). 163 Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir. 2010). 164 Rios v. Ashcroft, 287 F.3d 895, 901 (9th Cir. 2002) (quoting Garrovillas v. INS, 156 F.3d 1010, 1017 (9th Cir. 1998)). 165 Id. (quoting Navas v. INS, 217 F.3d 646, 662 (9th Cir. 2000)); accord Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35 (1st Cir. 2005) (“[T]o be effective, evidence of changed country conditions must negate a petitioner's particular fear”) (emphasis in original); Fergiste v. INS, 138 F.3d 14 (1st Cir. 1998) (“[C]hanges in country conditions must be shown to have negated the particular applicant’s well-founded fear of persecution.”)); Osorio v. INS, 99 F.3d 928, 932-33 (9th Cir. 1996). 166 Rios v. Ashcroft, 287 F.3d 895, 902 (9th Cir. 2002) (quoting Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000)); see Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003) (“evidence of the condition of the applicant’s family is relevant only when the family is similarly situated to the applicant.”) 167 In Mohammed v. Gonzales, 400 F.3d 785, 800 (9th Cir. 2005), the Ninth circuit determined that genital mutilation that had already occurred in the past was a type of persecution that continues into the future: “Our precedent compels the conclusion that genital mutilation, like forced sterilization, is a permanent and continuing act of persecution, which cannot constitute a change in circumstances sufficient to rebut the presumption of a well-founded fear.” Advocates should argue that even in situations where physical harm might not be as prevalent of a concern as it was in the past, psychological harms extend into the future, should the person be forced to return.

12-36

Tab Position 1

Immigrant Legal Resource Center June 2017

2. Applicant could safely and reasonably relocate 168 In determining whether it would be safe for the applicant to relocate, the regulations direct adjudicators to consider whether the applicant “could avoid future persecution by relocating to another part of the applicant’s country.” 169 However, in addition to showing that it would be safe for the applicant to relocate, the government must prove that it would also be reasonable to expect the applicant to relocate, given her specific circumstances.

In determining whether it would be reasonable to expect an applicant to relocate, the regulations direct adjudicators to consider, along with other factors that may be relevant: • • • • •

whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. 171

Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate. 172 PRACTICE TIP: In cases where the applicant’s government was the persecutor, practitioners should submit evidence of the danger and unreasonableness of internal relocation. The applicant’s declaration should include an explanation as to why internal relocation would be unsafe and unreasonable given her particular circumstances. Additionally, the evidence packet should highlight country conditions evidence regarding countrywide risk and factors that would make it unreasonable for the applicant to relocate, i.e., lack of infrastructure, poor treatment of women (or any group the applicant belongs to) in the country, difficulty finding employment, applicant’s education level, mental conditions caused by the past persecution, etc. B.

Humanitarian Asylum

In limited circumstances, a petitioner can establish asylum eligibility on the basis of past persecution without a well-founded fear of future persecution. This type of claim is often referred 168

“The applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality or, if stateless, another part of the applicant’s country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so.” 8 CFR § 208.13(b)(1)(i)(B) (2008). 169 8 CFR § 208.13(b)(1)(B). 170 8 CFR § 208.13(b)(3)(ii) (2008); see Cardenas v. INS, 294 F.3d 1062, 1066 (9th Cir. 2002) (“Where an asylum applicant has shown past persecution, the burden is placed on the INS to show that it would be reasonable for him to relocate within the country.”) 171 8 CFR § 208.13(b)(3) (2008). 172 Id.

12-37

Chapter 12

Internal relocation is presumed to be unsafe in cases in which the government is the persecutor, unless the Service “establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.” 170

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

to as “humanitarian asylum.” The regulations provide for humanitarian asylum upon a showing of severe past persecution or in situations where a client who was persecuted in the past may face other serious harm in the future. 173 Humanitarian asylum is available upon a showing of at least one of two types of circumstances: either that “[t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution[,]” or that the applicant “has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” 174

Chapter 12

1. Severe past persecution Matter of Chen is the seminal case recognizing that past persecution alone can constitute a basis for asylum. 175 Since this case, regulations codified the possibility of granting asylum based on a showing of severe past persecution, 176 Court decisions accordingly exempted applicants who have suffered severe persecution from demonstrating a fear of future persecution: “The experience of persecution may so sear a person with distressing associations with his native country that it would be inhumane to force him to return there, even though he is in no danger of further persecution. Very few of the surviving German Jews returned to Germany after the destruction of the Nazi regime, and it would have been cruel to force them to do so on the ground that bygones are bygones.” 177 In analyzing asylum based on past persecution alone, the federal circuits have focused on the severity of the persecution, and have generally required atrocious forms of persecution. 178 As the Ninth Circuit pointed out in Lal v. INS, however, 173

8 CFR § 208.13(b)(1)(iii). Id. See also Singh v. Holder, 12-2424, 2013 WL 3123950 (7th Cir. June 21, 2013) (“To qualify for humanitarian asylum, [the applicant’s] persecution needed to have been so outrageous (like the Nazi treatment of the Jews) that a compelled return … even with … apologies from one's former persecutors would be a cruelty”) (internal quotations omitted). 175 Matter of Chen, 20 I&N 16 (BIA 1989) (holding that if an applicant establishes past persecution, he is eligible for asylum, and a showing of lack of future persecution may result in denial of asylum as a matter of discretion). Lal v. INS, 255 F.3d 998 (9th Cir. 2001), as amended, 268 F.3d 1148 (9th Cir. 2002) (Citing 63 Fed. Reg. 31945, 31947 (June 11, 1998) (calling Matter of Chen the case “which the existing regulatory provisions were intended to codify”)); Kumar v. INS, 204 F.3d 931, 935 (9th Cir. 2000) (construing the exception by closely examining the facts of Matter of Chen); Vongsakdy v. INS, 171 F.3d 1203, 1207 (9th Cir. 1999) (same). 176 8 CFR § 208.13(b)(1)(iii). 177 Skalak v. INS, 944 F.2d 364, 365 (7th Cir. 1991). 178 See Vongsakdy v. INS, 171 F.3d 1203, 1205 (9th Cir. 1999) (“This avenue for asylum has been reserved for rare situations of ‘atrocious’ persecution, where the alien establishes that, regardless of any threat of future persecution, the circumstances surrounding the past persecution were so unusual and severe that he is unable to return to his country”); Marcu v. INS, 147 F.3d 1078 (9th Cir. 1998) (upholding a BIA denial despite 45 years of torment at the hands of the Romanian government); Lopez-Galarza v. INS, 99 F.3d 954, 961 (9th Cir. 1996) (“[A]bsent a likelihood of future persecution, asylum is warranted for humanitarian reasons only if [the petitioner] demonstrates that in the past, [he] or his family has suffered under atrocious forms of past persecution”) (quoting Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995)); Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993); Ademaj v. Att’y Gen. of U.S., 486 Fed. Appx. 984, 986 (3rd Cir. 2012); Lapuste v. Holder, 450 Fed. Appx. 598, 599 (9th Cir. 2011). 174

12-38

Tab Position 1

Immigrant Legal Resource Center June 2017

“the words ‘atrocity’ and ‘atrocious’ are never actually used in 8 CFR § 208.13(b)(1)(ii) and used only once in the Matter of Chen opinion. Rather, § 208.13 requires the petitioner to demonstrate ‘compelling reasons’ to fear return based on the ‘severity’ of past treatment. Matter of Chen talked about suffering ‘more than the usual amount of illtreatment.’ [citation omitted] Although we and the BIA have sometimes found the Matter of Chen exception to apply because of past atrocities, such precedent does not read that term into the regulation, much less make it the appropriate starting point for deferential review.” 179

2. Other serious harm Alternatively, applicants who have suffered past persecution that was not severe enough for a grant of humanitarian asylum, can win asylum by demonstrating that they would suffer “other serious harm.” 182 In Matter of L-S-, the BIA found that the prospective “other serious harm” need not be based on a protected ground, but must be serious enough to amount to persecution. 183 The Board referred to guidance from the Attorney General in 1998 that “endorsed the approach to humanitarian asylum that is based on the severity of past harm, but it also made the consideration of a reasonable possibility of other serious harm a specific, additional, and separate avenue for relief. 184 The asylum applicant need only establish a reasonable possibility of other serious harm. 185 Economic disadvantage and the inability to practice one’s profession are examples of harms that do not qualify as “other serious harm” in the context of humanitarian asylum. 186 In contrast, in the case of Kholyavskiy v. Mukasey, the Seventh Circuit found debilitation and homelessness could constitute serious harm where the petitioner would be without medications that controlled his mental illness and would thus be incapable of functioning and obtaining housing and medical

179

Lal v. INS, 255 F.3d 998, 1008 n.7. (9th Cir. 2001), as amended, 268 F.3d 1148 (9th Cir. 2002). Kone v. Holder, 596 F.3d 141, 152 (2nd Cir. 2010) (“A grant of asylum under this theory is reserved for ‘atrocious forms of persecution’”); Sheriff v. Att’y Gen., 587 F.3d 584, 594 (3rd Cir. 2009) (noting that persecution entitling an [person] to humanitarian asylum “must have been extreme” and “atrocious forms of persecution”). 181 Kone, 596 F.3d at 152 (citing Jalloh v. Gonzales, 498 F.3d 148, 151 (2nd Cir. 2007)). 182 8 CFR§ 1208.13(b)(1)(iii). 183 Matter of L-S-, 25 I&N 705, 714 (BIA 2012). 184 63 Fed. Reg. 31945-01, (proposed June 11, 1998) (explaining the decision to add second avenue for humanitarian asylum), now codified at 8 CFR § 1208.13(b)(1)(iii)(B) (“There may be cases where it is appropriate to offer protection to applicants who have suffered persecution in the past and who are at risk of future harm that is not related to a protected ground.”) 185 Matter of L-S-, 25 I&N 705, 714 (BIA 2012). See also Pllumi v. Att’y Gen., 642 F.3d 155, 162 (3rd Cir. 2011) (quoting Sherriff v. Attorney General, 587 F.3d at 596). 186 Sherriff v. Attorney General, 587 F.3d 584, 596 (3rd Cir. 2009). 180

12-39

Chapter 12

Nonetheless, in keeping with Matter of Chen, a grant of asylum based on the “severity of past persecution” is reserved for those applicants who have suffered particularly extreme persecution, 180 and can establish both the severe harm and the long-lasting effects of the harm. 181

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

treatment if he were returned to Russia. 187 Similarly, the Third Circuit has articulated that the unavailability of specific medications arguably falls within the ambit of serious harm. 188 PRACTICE TIP: Advocates should argue humanitarian asylum where past persecution is present. In cases where the applicant faced past persecution, but no longer fears persecution for the same reason, advocates should present other harms that would impact such a person on return. For example, cases from Central America with past persecution originating from the civil conflict between the military in and the government in the 1980s and 1990s might not still fear persecution on the same grounds as before. However, many Central Americans may fear the current gang and drug-related violence in their home countries. § 12.11 What Is Persecution? Neither the Immigration and Nationality Act nor the BIA has fully defined the term persecution. Generally, case law has described persecution simply as “a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive.” 189 This general definition encompasses many forms of harm beyond physical harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life. 190 Physical harm is, therefore, not required to prove persecution. 191 Nevertheless, the concept of persecution is an extreme one that does not include every sort of treatment our society regards as offensive, appalling, or reprehensible. 192 Because the INA does not define persecution, the Courts of Appeal “must defer to the Board’s interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’” 193 As a result, there is a lot of variety in the factual situations determined to rise to the level of persecution in the federal appellate courts.

187

Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008). Pllumi, 642 F.3d at 162-163. 189 Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). See also, Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)); see also, Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); see also the UN Handbook paragraphs 45–64. 190 In re T-Z-, 24 I&N Dec. 163,171 (BIA 2007) (quoting H.R. Rep. No. 95-1452, at 5, as reprinted in 1978 USCCAN 4700, 4704, 1978 WL 8575 (“House Report”)). 191 Haider v. Holder, 595 F.3d 276 (6th Cir. 2010). 192 See INS v. Stevic, 104 S.Ct. 2489, 2500, n. 22 (1984) (persecution requires more than “mere harassment or annoyance”); see also Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998); see also Ouda v. INS, 324 F.3d 445, 452 (6th Cir. 2003) (persecution requires “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty”); See also Lukwago v. Ashcroft, 329 F.3d 157, 168 (3rd Cir. 2003) (“Persecution ‘does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional’”) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3rd Cir. 1993)); Bucur v. INS, 109 F.3d 399, 402 (7th Cir. 1997) (“[D]iscrimination is not persecution.”) 193 Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (quoting Romero v. INS, 39 F.3d 977, 980 (9th Cir. 1994) and Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984)). 188

12-40

Tab Position 1

Immigrant Legal Resource Center June 2017

A.

Cumulative Effect

B.

Applicant’s Subjective Opinions and Feelings Must Be Considered

The UN Handbook states that whether certain forms of mistreatment would constitute persecution will depend, in part, on the subjective character of the asylum applicant. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary. 196 It is possible, therefore, that a particular form of mistreatment will constitute persecution when applied to one applicant, but not when applied to another. For example, in Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993), the court found that requiring women to wear the Chador might be so abhorrent to some women that it would be tantamount to persecution. Similarly, the UN Handbook at paragraph 52, states: The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make-up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.

194

See Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (“The key question is whether, looking at the cumulative effect of all the incidents petitioner has suffered, the treatment she received rises to the level of persecution”); Surita v. INS, 95 F.3d 814, 819 (9th Cir. 1996) (“[W]hile a single incident, in some circumstances, may not rise to the level of persecution, the cumulative effect of several incidents may constitute persecution”); Singh v. INS, 94 F.3d 1353, 1358 (9th Cir. 1996); Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 26 (BIA 1998) (“We find that these incidents constitute more than mere discrimination and harassment. In the aggregate, they rise to the level of persecution as contemplated by the Act”). See also Bracic v. Holder, 603 F.3d 1027, 1035-36 (8th Cir. 2010) (finding past persecution where respondent was approached by 5 men dressed in black, asked his name, called a traitor and then beaten to the point of unconsciousness was more than a mere “episode of physical mistreatment” when one of the assailants, dressed in a police uniform waited at his door and there was numerous other claims of police mistreatment, credible threats and beatings from soldiers, police and spy groups that had the authority to execute Muslims.) 195 The OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1992), ¶52, available at www.hrea.org/learn/tutorials/refugees/Handbook/hbtoc.htm (hereinafter UN Handbook). 196 The OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1992), ¶52.

12-41

Chapter 12

In determining whether the actions taken against an individual constitute persecution, the BIA and the courts should evaluate the harmful incidents “cumulatively,” and determine whether the combination of those actions rises to the level of persecution. 194 This approach is reiterated in the UN Handbook, which states: “[A]n applicant may have been subjected to various measures not in themselves amounting to persecution (e.g., discrimination in various forms), in some cases combined with adverse factors (e.g., general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on ‘cumulative grounds.’” 195

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

C.

The Persecutor Need Not Intend to Harm the Applicant

Persecution can occur even where the persecutor is attempting to help the applicant or adhering to tradition. This may be the case for young women forced into marriage by their families; gay and lesbian individuals forced to undergo ‘conversion therapy’; and others. While older BIA cases held that to constitute persecution, “harm or suffering must be inflicted upon a [victim] in order to punish him for possessing a belief or characteristic [the] persecutor seeks to overcome,” 197 current jurisprudence rejects this approach. 198 In Matter of Kasinga, for example, the Board held that female genital mutilation was a form of persecution and expressly held that a “subjective ‘punitive’ or ‘malignant’ intent is not required for harm to constitute persecution.” 199 Similarly, the Ninth Circuit has held that the “definition of persecution is objective, in that it turns not on the subjective intent of the persecutor but rather on what a reasonable person would deem ‘offensive.’ That the persecutor inflicts the suffering or harm in an attempt to elicit information … for his own sadistic pleasure … to ‘cure’ his victim, or to ‘save his soul’ is irrelevant.” 200 § 12.12 Persecutors: Government and Non-Governmental Forces An asylum seeker must demonstrate that she is unable or unwilling to avail herself of the protections of the country of her nationality or habitual residence. 201 Thus, persecution must be inflicted either by the government or by a private person or organization that the government is unable or unwilling to control. 202 A “state” actor is one who is a member of the government, or a part of a government-supported organization. “[T]here is no distinction between the direct actions of the government and the actions of a group that is recognized and sponsored by the government.” 203 “[W]hen the 197

Matter of Acosta, 19 I&N Dec. 211, 223 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); see also Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987). 198 See Pitcherskaia v. INS, 118 F.3d 641, 648 (9th Cir. 1997) (“To the extent that Acosta and Mogharrabi require an alien to prove the persecutor harbored a subjective intent to punish, we reject their holding”). 199 Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996). 200 Pitcherskaia v. INS, 118 F.3d 641, 647 (9th Cir. 1997). 201 INA § 101 (a)(42)(A). 202 Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997); see also Borja v. INS, 175 F.3d 732, 736 n.1 (9th Cir. 1999) (en banc) (“[P]ersecution cognizable under the [Immigration and Naturalization] Act can emanate from sections of the population that do not accept the laws of the country at issue, sections that the government of that country is either unwilling or unable to control”) superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739 (9th Cir.2009); Guillen-Hernandez v. Holder, 592 F.3d 883, 886 (8th Cir. 2010) (“Persecution is a harm that is inflicted either by the government of a country or by a person or an organization that the government is unable or unwilling to control”) (internal quotations omitted). But see Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (Concluding that the harassment the Truongs faced in Italy was neither committed by the government or forces they could not control where the contention that the harassment came at the hands of communist forces was speculative and the Truongs simply did not know who their assailants were and what motivations they had.) 203 Montoya-Ulloa v. INS, 79 F.3d 930, 931 n.1 (9th Cir. 1996) (holding that an applicant who was harassed, threatened, and beaten by the Sandinista Youth, a group that was recognized and sponsored by the Sandinista government, suffered persecution). See also, 8 CFR § 208.13(b)(3)(ii) (“In cases in which the persecutor is a government or is government-sponsored […] it shall be presumed that internal relocation would not be reasonable”).

12-42

Tab Position 1

Immigrant Legal Resource Center June 2017

government is responsible for persecution … no inquiry into whether the persecution was reported to police is necessary,” although practitioners should elicit information from their client regarding any efforts to report the persecution to an official, as it would be helpful in showing the foreign government’s inability or unwillingness to protect the applicant. 204

§ 12.13 Connecting Persecution to the “Enumerated Grounds” A.

Proving Nexus and the Case of Elias-Zacarias

In addition to establishing a well-founded fear of persecution, asylum seekers must show that the persecution is on account of one of the five grounds enumerated in the law: race, religion, nationality, political opinion, or membership in a particular social group. This is called the nexus requirement. The nexus between the persecution and one of the enumerated grounds has become one of the most complex areas of asylum law. In 1992, the Supreme Court squarely addressed the nexus element in INS v. Elias-Zacarias, 502 U.S. 478 (1992), and thus shaped the current legal landscape for the “on 204

Baballah v. Ashcroft, 367 F.3d 1067, 1078 (9th Cir. 2004); Chanchavac v. INS, 207 F.3d 584 (9th Cir. 2000) (holding that attacks by military personnel constituted persecution, without requiring a complaint to civilian authorities). 205 Thomas v. Ashcroft, 359 F.3d 1169, 1179-80 (9th Cir. 2004) vacated on other grounds by Gonzales v. Thomas, 547 U.S. 183 (2006). Guillen-Hernandez v. Holder, 592 F.3d 883, 886-87 (8th Cir. 2010) (holding that petitioners were not persecuted when their father and brother were murdered and the killer was not captured because there was no evidence that the murders were inflicted by the government or that the government was unwilling to control the murder when an extensive police investigation, trial and conviction of the murderer took place); Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010) (“[T]he Truongs’ professed belief that the Italian government was complicit in or unwilling to stop their harassment is undermined by the fact that the Truongs repeatedly sought assistance from the Italian police, who dutifully made reports after each incident and indicated they would investigate. Without more, we are reluctant to infer government complicity or indifference from the mere fact that Italian police were unable to locate the Truongs’ unknown assailants”). 206 Faruk v. Ashcroft, 378 F.3d 940, 943 (9th Cir. 2004). 207 Afriyie v. Holder, 613 F.3d 924, 932 (9th Cir. 2010) (“Where, as here, an asylum applicant testifies to specific incidents in which individuals closely connected to the asylum applicant unsuccessfully sought police protection or investigation for crimes related to the ones against him, such testimony is certainly pertinent and must be considered”). 208 Bringas-Rodriguez v. Sessions, 9th Circuit (en banc), 2017.

12-43

Chapter 12

When a non-state actor is the persecutor, an applicant need not establish that the government “is sponsoring or promoting or condoning the violence”—just that it is unable or unwilling to control it. 205 This can be done by showing either that (1) the government, despite efforts, is unable to protect the applicant, or (2) the government does not take actions to protect the applicant. Additionally, “there is no exception to the asylum statute for violence from family members; if the government is unable or unwilling to control persecution, it matters not who inflicts it.” 206 In making this determination, courts sometimes consider whether the government failed to solve other similar crimes or provide protection when asked. 207 However, some courts have held that reporting a crime or alerting the authorities is not required where it would be futile or dangerous. 208

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

account of” element. In Elias-Zacarias, the Supreme Court held that an asylum applicant must prove the persecutor’s motivation and must thus demonstrate that the persecutor harmed the applicant “on account of” one of the enumerated grounds. The enumerated ground at issue in Elias-Zacarias was political opinion. According to the facts, a guerrilla group who was recruiting men to help them overthrow the Guatemalan government visited eighteen-year old Elias-Zacarias at his home in Guatemala and, armed with machine guns, asked him to join their forces. Elias-Zacarias refused but gave no reasons for this refusal. The guerrillas promised to return. Fearing that the guerrillas would return to kill him, Elias-Zacarias fled Guatemala. Presented with these facts, the Court held that persecution on account of political opinion is not established by the fact that the coercing guerrillas had “political” motives. In order to satisfy § 101(a)(42), the persecution must be on account of the victim’s political opinion, not the persecutor’s. The Court explained that the “generalized” political motive of the guerrillas was not enough to meet the nexus requirement. 209 Although the guerrillas’ recruitment efforts were part of a larger effort to overthrow the Guatemalan government, indisputably a political motive, the Court shifted the focus to Elias-Zacarias’ political opinion: “[t]he ordinary meaning of the phrase ‘persecution on account of … political opinion’ … is persecution on account of the victim’s political opinion, not the persecutor’s.” 210 The Court reasoned that “[e]ven a person who supports a guerrilla movement might resist recruitment for a variety of reasons—fear of combat, a desire to remain with one’s family and friends, a desire to earn a better living in civilian life, to mention only a few.” 211 The Court noted that Elias-Zacarias had not only failed to give the guerrillas any reasons for refusing to join their ranks but had also expressed to the Court a non-political reason for doing so, mainly fear that the Guatemalan government would retaliate against him and his family). Therefore, the Court reasoned, Elias-Zacarias had failed to show that the guerrillas’ persecution of him was on account of his political opinions or on account of his persecutors’ belief, however mistaken, that he held such an opinion. 212 Proving the persecutor’s motive has shown to be a harsh requirement for asylum seekers, who now must provide evidence of why their persecutors persecute them. The sections below will further illustrate this, but it is worth noting that the court in Elias-Zacarias stated that an asylum applicant “must provide some evidence of the [persecutor’s motive], direct or circumstantial.” 213 While it is

209

Elias-Zacarias, 502 U.S. at 482. Elias-Zacarias, 502 U.S. at 482. 211 Elias-Zacarias, 502 U.S. at 482. 212 This describes the theory of imputed political opinion, which will be discussed later in this section. 213 Elias-Zacarias, 502 U.S. at 483. See also, Gafoor v. INS, 231 F.3d 645, 650 (9th Cir. 2000) (“[M]otives can be difficult to pin down.… Persecutors do not always take the time to tell their victims all the reasons they are being beaten or kidnapped or killed. Sometimes, they may not want their motives known for fear of public condemnation; other times, the motives may be so clear to both parties that no explanation is needed.… Because it is so difficult to prove motives with any precision, the Supreme Court does not require an applicant to provide direct evidence that his persecutors were motivated by one of the protected grounds; instead, compelling circumstantial evidence is sufficient”) superseded by statute, REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, as recognized by De Leon v. Holder, 488 Fed.Appx. 239 (9th Cir. 2012). 210

12-44

Tab Position 1

Immigrant Legal Resource Center June 2017

always best to provide direct evidence showing the persecutor’s motive, such as letters written to the victim or statements made, more often circumstantial evidence will be the only evidence available.

B.

“Mixed Motives” and One Central Reason

A persecutor may harm an applicant for a number of different reasons. It is common for more than one statutory ground to be applicable in a particular case. For example, an applicant may have been harmed due to her political opinion and her race. Where more than one statutory ground is implicated, an applicant may want to apply for asylum based on all the grounds that apply to avoid waiving an argument, and because different adjudicators might be more inclined to grant the claim on certain grounds. 214 However, for each ground to count independently as a claim to asylum, there must be a nexus between the persecution and each ground. For example, there must be evidence that the persecution was on account of both religion and political opinion independently. It is conceivable to have all five grounds present in one case, though whenever more than one is present, one will usually predominate and should be emphasized in the application materials. Also be aware that by presenting multiple motives, you might make it more difficult to show that one reason is the central reason for the persecution. While you do not want to waive a claim, it is also important to not dilute the central reason for the harm. It is also possible for acts of persecution to be motivated by a protected ground and a non-protected ground. These are known as “mixed motive” cases because they involve persecution motivated by a protected ground as well as by a reason that falls outside of the statute. This can include a legitimate motive, such as enforcement of a state policy, or personal motives like revenge. For example, an applicant could be persecuted on account of her race and because of a personal land dispute between her family and the persecutor. Particular problems have arisen where military recruitment, economic greed/extortion, and criminal prosecution are involved in addition to one of the five enumerated grounds.

214

Note that, while immigration judges indicate in their decision on what ground they are approving an application; a USCIS asylum officer almost never does.

12-45

Chapter 12

It is important to distinguish a persecutor’s motive from his or her intent. In the case In re S-P-, 21 I&N Dec. 486, 496 (BIA 1996), discussed in more detail below, the Board explained that specific proof of a persecutor’s motive which is linked to a protected ground is required, but proof of a persecutor’s subjective intent is not. Therefore, in order to constitute persecution, the harm suffered need not have been intended to be harmful. A harmful act can constitute persecution even if it was delivered with benign intent on the part of the persecutor. For example, in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), also discussed in more detail below under gender-based particular social groups, the Board found the practice of “female genital mutilation” to meet the standard for persecution, notwithstanding the fact that the person inflicting the harm did not intend to punish or harm the victim. An asylum applicant is thus required to prove that the actions of her persecutor would cause a harm that amounts to persecution, and that those actions would be motivated by the applicant’s political opinion, religion, ethnicity/race, nationality, or membership in a particular social group. However, she does not need to show that in acting thus, the persecutor’s intention was to harm her.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

The REAL ID Act of 2005 specifies that the applicant “must establish” that one of the five enumerated grounds “was or will be at least one central reason for persecuting the applicant,” 215 In the REAL ID Act, Congress specified that for a ground to be a central motive, “it clearly would not be sufficient if the protected characteristic was incidental or tangential to the persecutor’s motivation.” 216 Under the “one central reason” standard, the applicant must demonstrate that even if the persecutors were motivated by a reason not found in the statutory definition of a “refugee,” (e.g., the persecutor’s desire to obtain information or to extort money), their actions were also motivated by a cognizable ground, such as to punish the applicant on account of his political opinion. The applicant must be able to prove that the statutory ground was a central reason motivating the persecutor, not merely tangential, regardless of other motives. § 12.14 The Meaning of the Protected Grounds Federal circuit courts have published numerous cases regarding what constitutes a protected ground, particularly in regards to political opinion and membership in a particular social group. You should be informed on the specific interpretation of the relevant protected grounds in your circuit, as this is an area of law that is constantly in flux and renders itself open to wide-ranging and fact-specific interpretation. Out of the five protected grounds, membership in a particular social group is the subject of the majority of litigation because it is wider in scope than the other grounds. The following section, § 12.15, spotlights particular social group because of the breadth of case law in this area. Each of the other protected grounds are relatively self-explanatory. Following is a brief explanation of each. A.

Race

The UN Handbook states that, “race … has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as ‘races’ in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population.” 217 Example: Sandra is a Black South African living during the apartheid-era. Under the laws of South Africa’s apartheid system, Black South Africans are not allowed to vote in national elections. The government also imposed severe limitations on where they could live, work, and go to school. Frustrated with this repressive system, Sandra came to the U.S.

215

REAL ID Act of 2005 § 101(a)(3)(B)(i), 8 USCA § 1158(b)(1)(B)(i) (West 2008) (emphasis in text added). For the BIA’s interpretation of the “central reason” test, see In re J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007) (concluding that the BIA’s standard in mixed motive cases has “not been radically altered by the amendments.”) 216 See H.R. Conf. Rep. No. 109-72, at 163. See, e.g., Morgan Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) (Petitioner claimed harms he suffered were on account of his Coptic Christian belief, but the court found that the harms he suffered were in response to his interference in a romantic relationship between a Coptic Christian woman and a Muslim man.) 217 UN HANDBOOK, at ¶ 68.

12-46

Tab Position 1

Immigrant Legal Resource Center June 2017

Although race-based persecution is prevalent in countries whose citizens seek asylum, very few reported cases are based on this ground. There are several noteworthy exceptions. In Damaize-Job v. INS, 787 F.2d 1332 (9th Cir. 1986), the Ninth Circuit held that an indigenous Miskito established a clear probability of persecution by the Sandinista government of Nicaragua. It again found that the applicant was persecuted on account of race in Surita v. INS, 95 F.3d 814 (9th Cir. 1996). Ethnic Fijians subjected the applicant, an Indo-Fijian in Fiji, to threats and multiple robberies because she was racially different from them. 218 In some cases involving race-motivated persecution, the government imputes disloyalty and political opposition to these indigenous peoples. In such cases, an applicant should raise a claim based on both race and political opinion.

The paucity of court decisions in this area is attributable to the reality that race is often a secondary basis to any of the other grounds. There is an especially high likelihood of overlap with national origin. However, given the wide latitude that the UN Handbook directs in these cases, and that racial discrimination can amount to persecution where the applicant’s “human dignity is affected to such an extent as to be incompatible with the most elementary and inalienable human rights, or where the disregard of racial barriers is subject to serious consequences,” 220 this basis should be utilized more frequently. Race (and national origin) bases should be closely explored in any cases emanating from subSaharan Africa. Racially-based tribes and family-based clans permeate social, political, and cultural life in most of the region to a degree that is difficult to contemplate in the West. Differences that, at first blush, appear to be politically based, may also be tribally based. If present, these circumstances could lead to significant additional information from the client and consequent strengthening of the asylum claim. B.

Religion

A religion-based claim can be based upon the right to hold a belief or the right to practice one’s belief, or both. The UN Handbook emphasizes the protection of the “right to freedom of thought, conscience and religion, which includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.” 221 Religion-based asylum claims are increasing due to the rise of anti-religious or fundamentalist societies. Frequently, there is nominal or no separation of church and state, and violation of religious 218

Surita, 95 F.3d at 819; see also Gafoor, 231 F.3d 645 (granting of asylum to Indo-Fijian police officer who arrested a high-ranking Fijian army officer for rape and was beaten and told to “go back to India” as a result). 219 See Demirovski v. INS, 39 F.3d 177, 179 (7th Cir. 1994). 220 UN HANDBOOK at ¶ 69. 221 UN HANDBOOK at ¶ 71.

12-47

Chapter 12

In Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir. 1999), the court found that an indigenous Quiche petitioner had suffered racial persecution, rather than mere discrimination as a soldier. The petitioner credibly testified to “repeated beatings and severe verbal harassment by his Hispanic superior” in the military, the fact that only he and five other indigenous soldiers were subjected to such treatment, and his complaint regarding such treatment was written disregarded by a superior officer stating it was not his place to object. A claim based on racial persecution, however, must be specific and experiences of harassment and discrimination, such as difficulties finding work because of race, are generally insufficient. 219

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

laws may be enforced by criminal prosecution. Criminal prosecution in this context should not be viewed as a bar to asylum eligibility but, rather, as an example of actual persecution and verification of the past or threatened persecution. 222 Conversion out of the dominant religion of a country (known as apostasy) can often draw the most severe penalties, legal and religious. To illustrate the significance of this social fact, the Seventh Circuit has found a well-founded fear of persecution for an Iranian convert to Christianity where Islamic law provided the death sentence for apostasy. 223 As with all asylum claims, it is important to show a clear nexus between the persecution and the victim’s religion. In Morgan Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir. 2011), the petitioner failed to establish this nexus because the harms he suffered were due to his interference with a friend’s relationship. He had persuaded his friend, a Coptic Christian woman, to break off her relationship with a Muslim man. Though Morgan may have been motivated to interfere because of his Coptic Christian beliefs, the First Circuit upheld the BIA’s decision and found that he was not targeted on account of his beliefs. The point here is that the petitioner must demonstrate that the religion was beyond just a possible motivation. In Matter of Chen, 20 I&N Dec. 16 (BIA 1989), the BIA held that the applicant had suffered persecution on account of the religious activities of his father during the Cultural Revolution in China. In Cordero-Trejo, 40 F.3d 482 (1st Cir. 1994) First Circuit overturned the denial of asylum to a Guatemalan religious worker, given extensive evidence of the persecution of religious workers. In Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996), the Fifth Circuit held that although the applicant, a Sudanese Coptic Christian, did not demonstrate past persecution, the BIA erred in finding that no well-founded fear of future persecution existed. Furthermore, the BIA erred by not placing the burden on the government to show the applicant would be safe from persecution elsewhere in Sudan. 224 In Matter of R-, 20 I&N Dec. 621, 627 (BIA 1992), the court found that the applicant’s failure to demonstrate that returning to India, rather than Punjab which was where he specifically incurred harm, would lead to persecution was fatal to his claim. In Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995), the court denied asylum because the discrimination against Coptic Christians in Egypt did not constitute persecution. In Shan Zhu Qiu v. Holder, 611 F.3d 403, 409 (7th Cir. 2010), the BIA denied asylum to the petitioner, a Falun Gong practitioner, because he could conceal practice of his religion from the Chinese government. However, the Seventh Circuit overruled the decision because “Putting Qiu to … a choice [of ceasing the practice of Falun Gong or hoping to evade discovery] runs contrary to the language and purpose of our asylum laws.” 225 In Shi v. U.S. Att’y. Gen., 707 F.3d 1231 (11th Cir. 2013), the Eleventh Circuit granted asylum to a Christian Chinese petitioner. During a church gathering at petitioner’s home, four policemen entered, broke up the religious meeting, and arrested nine or ten members of congregation. The police then detained petitioner for seven days, during which time they interrogated him twice, slapped him in the

222

See Chapter 5 for discussion of criminal prosecution as a bar to asylum eligibility. See Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992); see also Najafi v. INS, 104 F.3d 943 (7th Cir. 1997). 224 Abdel-Masiehat 586-87. 225 Shan Zhu Qiu at 409. 223

12-48

Tab Position 1

Immigrant Legal Resource Center June 2017

face, kicked his chair out from underneath him, threatened to beat him with a baton, handcuffed him to an iron bar, and left him there in the rain overnight. 226 1. Resisting military conscription

The Seventh Circuit also denied asylum to a Jehovah’s Witness who refused to fulfill his obligation to serve in the military in Dobrican v. INS, 77 F.3d 164 (7th Cir. 1996). However, unlike Canas, the court stated, “[i]f Dobrican had made any showing before the IJ that today’s Romanian military would fail to accommodate his religiously based pacifism, this might be a different case on the facts, in which we would need to address that issue.” 232 Moreover, a religion-based claim cannot be denied merely because the government furnishes some evidence of changed country conditions. For example, in Mousa v. Mukasey, 530 F.3d 1025 (9th Cir. 2008), the court found that the government’s submission of a single Washington Times article to indicate that Chaldean Christians were safe in Iraq was insufficient to defeat petitioner’s claim. 2. Nationality The term “nationality” is primarily focused on ethnic and linguistic groups. According to the UN Handbook: The term “nationality” … is not to be understood only as “citizenship.” It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term “race.” … [I]n certain circumstances, the fact of belonging to such a [linguistic or ethnic] minority may in itself give rise to well-founded fear of persecution. 233 Example: The situation of Kurds in Iraq illustrates persecution on account of nationality. Kurds are primarily Sunni Muslims and are persecuted because they are a minority ethnic group or nationality within Iraq. 226

Shi at 1232-33. See, e.g., Matter of Vigil, 19 I&N Dec. 572; Khalaf v. INS, 909 F.2d 589 (1st Cir. 1990); KavehHaghigy v. INS, 783 F.2d 1321 (9th Cir. 1986). 228 UN HANDBOOK at ¶ 173. 229 See Matter of Canas-Segovia, 19 I&N Dec. 697 (BIA 1988), aff’d, Canas II, 970 F.2d 599. 230 Movsisian v. Ashcroft, 395 F.3d 1095 (9th Cir. 2005) (summarizing the Ninth Circuit’s position on the subject). 231 See Mezvrishvili v. U.S. Atty. Gen., 467 F.3d 1292, 1296 (11th Cir. 2006). 232 Dobricanat 167. 233 UN HANDBOOK at ¶ 74. 227

12-49

Chapter 12

Asylum claims based on religious persecution often arise in the context of persons who avoid military conscription, generally due to prosecution for conscientious objection. 227 The key is relating the refusal to serve to certain beliefs of the applicant. Although the UN Handbook suggested that refugee status may be granted to those whose refusal to serve in the military is based on “genuine reasons of conscience,” 228 including genuine religious convictions, the BIA and the Ninth Circuit have rejected such religion-based conscientious objector claims. 229 In Canas II, the Ninth Circuit held that “religious conscientious objectors did not establish religious persecution because they did not show that the government intended to persecute them for their beliefs.” 230 The Eleventh Circuit found that a demonstration of the sincerity of one’s conversion does not require detailed knowledge of one’s religious doctrine, though the absence of it may cast suspicion on one’s claim. 231

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Persecution on account of nationality may overlap with any of the other grounds, particularly race. The limited case law in these areas has not established meaningful distinctions. Example: Miguel and Angelina are indigenous Kanjobal from Guatemala. Although they are citizens of Guatemala, they fear persecution on account of their Kanjobal nationality (or ethnic identification). The distinctions between nationality and other bases for asylum may not be very significant as long as the nexus is clearly established. As the UN Handbook states:

Chapter 12

The co-existence within the boundaries of a State of two or more national (ethnic, linguistic) groups may create situations of conflict and also situations of persecution or danger of persecution. It may not always be easy to distinguish between persecution for reasons of nationality and persecution for reasons of political opinion when a conflict between national groups is combined with political movements, particularly where a political movement is identified with a specific “nationality.” 234 Kurds from Iraq, Tamils in Sri Lanka, Sikhs in India, and ethnic Hungarians in Romania are examples of the convergence of the nationality and political opinion grounds of persecution. The Seventh Circuit remanded a case in which an ethnic Hungarian political activist had received threatening mail and phone calls, and the police questioned her weekly about her involvement with a Hungarian ethnic political group. 235 With respect to their nationality, a per se theory of persecution may apply to these groups. 236 In Matter of T-, 20 I&N Dec. 571 (BIA 1992), the BIA denied the asylum claim of a Tamil from Sri Lanka claiming persecution on account of ethnicity. In De Souza v. INS, 999 F.2d 1156 (7th Cir. 1993), the Seventh Circuit dismissed the claim of a woman of Indian descent born in Kenya, stating that her claim bordered on frivolity. The applicant alleged that the Kenyan government refused to grant her citizenship because of her ethnic origins, and that she was subjected to continual racial discrimination and harassment. The BIA also denied an asylum claim based on the nationality of an ethnic Chinese applicant from the Philippines in In re V-T-S-, 21 I&N Dec. 792 (BIA 1997). In Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985), the First Circuit granted asylum in part because the applicant belonged to a particular tribe. 237 Although tribal or ethnic identification fit the criteria for nationality, the court based its favorable decision on the social group theory. 238 Practitioners should cite the favorable Ananeh-Firempong case in factually similar cases when pursuing asylum based on nationality as well as social group. 239 234

UN HANDBOOK at ¶ 75. See Hengan v. INS, 79 F.3d 60 (7th Cir. 1996); see also Prasad v. INS, 47 F.3d 336 (9th Cir. 1995) (where the applicant’s political activities were identified with his Indian ethnic group). 236 A general disagreement between the nation’s government and the applicant’s native land, however, is not sufficient to establish persecution. See, e.g., Matter of Eusaph, 10 I&N Dec. 453 (BIA 1964) (finding that disagreement between Pakistan and India not sufficient to establish persecution). 237 Ananeh-Firempong at 621; see also Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995) (finding the BIA applied an erroneous standard in denying asylum to an Ethiopian national of Oromo descent who, along with her family, was affiliated with the Oromo Liberation Front during the 1980’s and 1990’s). 238 Ananeh-Firempong at 621. 239 See Gebremichael at 28. 235

12-50

Tab Position 1

Immigrant Legal Resource Center June 2017

Few cases have involved the granting asylum specifically on the ground of nationality. One example is In re O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), where the applicant, a Ukrainian Jew whose wife was Russian, was repeatedly beaten and threatened specifically because of his “Jewish nationality.” What distinguishes the successful case is the type of evidence provided. The respondent in In re O-Z& I-Z had medical reports of injury, an anti-Semitic leaflet they received which accompanied the ruination of their house, and credible testimony. This is the type of clear and convincing evidence that should be gathered before mounting a claim in this less developed area of asylum.

Additionally, certain groups of persons are specifically classified by statute as presumptively eligible for admission to the U.S. as refugees. One such statutory provision dealing with religious persecution is a 1989 addition to the INA called the Morrison-Lautenberg Amendment, which creates presumptive refugee eligibility for (a) Jews and Evangelical Christians from the former Soviet Union; (b) active members of the Ukrainian Catholic Church, and (c) certain targeted Indochinese nationals. 241 Practitioners representing asylum applicants who fall into such categories should also argue that the legislation creates a presumption of eligibility for asylum. C.

Political Opinion 1. Overview

Neither the statute nor the regulations define the term “political opinion.” However, the courts have characterized a variety of activities and beliefs as political in nature. An applicant need not have been politically active to hold a political opinion. “[A]n asylum petitioner may hold a political opinion within the meaning of the INA even if the petitioner did not participate in organized political activities.” 242 Political opinion might include support of “fundamental rights” such as freedom of speech, the right to privacy, the right to have a family, the right to bodily integrity, and the right to unfettered reproductive choice, among others. 240

See, e.g., In Re S-A-, 22 I&N Dec. 1328. Pub.L. No. 101–167, Title V, § 599D, 103 Stat. 1261 (1989) (codified at 8 USC § 1157 note (as amended) (Establishing Categories of Aliens for Purposes of Refugee Determinations). 242 Meza-Menay v. INS, 139 F.3d 759, 763 (9th Cir. 1998); see also Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir. 1987) (finding that a belief that the armed forces were responsible for lawlessness, rape, torture and murder constituted a political opinion even where the applicant did not participate in politics), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc). 241

12-51

Chapter 12

Claims based on religion often involve additional statutory bases that the practitioner should emphasize. For instance, genuine conscientious objections to military service may form a claim based on religion as well as political opinion and particular social group. In fundamentalist countries, where religious leaders dominate the government and/or religious tenets are codified into the civil and criminal laws, behavior that contradicts those tenets will almost certainly be viewed as political opposition. Examples are women who refuse to conform to dress and conduct codes 240 and persons who practice a minority religion. This is why a petitioner should make other claims that might be relevant in addition to a religious persecution claim. For example, in Kazemzadeh v. U.S. Atty. Gen., 577 F.3d 1341, 1353 (8th Cir. 2009), the court denied the petitioner’s claim of political persecution but granted his claim based on religious persecution. The two evidentiary components to his claim were to show his conversion was genuine and that the conversion was a grave offense in the country he fled.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

Examples of political opinions include activities or beliefs that threaten or are viewed as threatening by a persecutor (e.g., refusing to be an informer, 243 exposing government corruption, 244 resisting extortion by government agents, 245 and fleeing sexual abuse). 246 Other activities the courts have found to be political in nature include actions against government corruption, 247 membership in community-based religious organizations, 248 and affiliation with former 249 and current 250 political leaders. The key for the practitioner is to focus on the context of the activities, beliefs, and affiliations of the client, rather than to try to show that these are inherently political. Explore with the client the nature of the problems at issue and why she believes what she believes or why she acted as she did. Only then can the attorney help to paint an accurate picture for the judge or asylum officer of the context within which a belief must be understood to be of a political nature. For example, in Elias-Zacarias, the Court rejected the notion that opposition to coercive conscription by a guerrilla group was inherently political. In other words, guerrillas arriving at one’s door demanding military recruitment is not necessarily politically motivated hostility, and refusal to comply with those demands without explaining why is not necessarily an expression of a “political opinion.” 251 However, in Jabr v. Holder, 711 F.3d 835, 838-39 (7th Cir. 2013), the applicant claimed that the violence inflicted upon him by the Palestinian Islamic Jihad when he refused conscription in to their ranks constituted persecution on account of his political opinion. The court agreed, finding Elias-Zacarias distinguishable because in this context, Jabr repeatedly clarified that he refused to join the organization precisely because of his political beliefs. 252 Another example is the case of Osorio v. INS, 18 F.3d 1017 (2nd Cir.1994), which illustrates how economic activities can be interpreted as being of a political nature, and therefore qualify as an expression of “political opinion,” because of the context within which they were undertaken.

243

See Fengchu Chang v. INS, 119 F.3d 1055, 1062 (3rd Cir. 1997), superseded by statute on other grounds, REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, as recognized in Parussimova, 533 F.3d 1128 (9th Cir. 2008). 244 See Borca, 77 F.3d 210. 245 See Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988). 246 See Lazo-Majano, 813 F.2d 1432. 247 See, e.g., Grava v. INS, 205 F.3d 1177 (9th Cir. 2000) (granting asylum to a “whistleblower”); Borca v. INS, 77 F.3d 210 (7th Cir. 1996); see also Gafoor, 231 F.3d 645 (finding past persecution in the case of an Indo-Fijian police officer beaten after arresting a high-ranking army official for rape); Castro v. Holder, 597 F.3d 93 (9th Cir.2010); Baghdasaryan vs. Holder, 592 F.3d 1018 (9th Cir. 2010). 248 Cordero-Trejo v. INS, 40 F.3d 482, 487 n.5 (1st Cir. 1994). 249 Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996) (finding eligibility based on applicant’s family connections to ousted Somoza government in Nicaragua). 250 Espinoza-Cortez v. Att’y Gen., 607 F.3d 101, 110 (3rd Cir. 2010) (distinguishing the case from EliasZacarias because the applicant had close ties with the Colombian government and finding that the FARC persecuted the petitioner due to imputed political opinion because of those ties). 251 Elias-Zacarias, 502 U.S. at 478; see also Rivas-Martinez v. INS, 997 F.2d 1143, 1147 (5th Cir. 1993) (where the Fifth Circuit criticized the BIA for imposing an unrealistic requirement on asylum applicants. According to the court, the BIA required the applicant to “court death by informing armed guerrillas to their faces that she detests them or their actions or their ideologies—or all of the above”). 252 Therefore, this case also illustrates the importance of demonstrating that a political opinion was expressed. See next subsection.

12-52

Tab Position 1

Immigrant Legal Resource Center June 2017

Osorio had been a union activist in Guatemala and suffered persecution as a result. 253 The BIA, relying on Elias-Zacarias, had held that because “the fundamental nature of the dispute was economic, concerning wages and the reinstatement of workers,” the existence of a “generalized ‘political’ motive underlying the government’s action is inadequate.”254 The Second Circuit rejected this approach, holding it was improper to ignore the “political context” of the dispute:

It went on to say: In a country where the standard of living is low, and where the government suppresses civil liberties and commits widespread human rights violations, unions (and student organizations) are often the only vehicles for political expression. 256 2. Expression of political opinion A political opinion can be expressed non-verbally, or it can be stated only in private. 257 Overt expression of political opinion is one way in which an applicant can show he or she possesses such an opinion. 258 However, political opinion can also be expressed through actions, including elective membership in particular groups such as political, student, peasant, union, and professional organizations, 259 and participation in activities such as demonstrations, propaganda distribution, and slogan painting. 260 Participation in activities of an organization can constitute political activity even where the person was not a member. For example, many students participate in student strikes and demonstrations even though they are not members of student organizations. Also, members of certain organizations are often persecuted without regard to their level of commitment or involvement in the group’s activities. There is no requirement that applicants have acted on their beliefs. Belief, by itself, is sufficient. The key is for the applicant to show that his political opinion had been expressed in such a way that the persecutor knew or could have known of the belief, and persecuted the applicant on account of that 253

Osorio, 18 F.3d at 1017. Osorio, 18 F.3d at 1028. 255 Osorio, 18 F.3d at 1029. 256 Osorio, 18 F.3d.at 1029-30; see also Vera-Valera v. INS, 147 F.3d 1036 (9th Cir. 1998) (holding that accusations that the head of a street vendors’ cooperative was a spy for the government constituted targeting due to imputed political opinion). 257 Rivas-Martinez v. INS, 997 F.2d at 1147. 258 See Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997). 259 Osorio, 18 F.3d at 1030 (finding that union activities expressed a political opinion); Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2nd Cir. 1993) (proceeding on the assumption that “persecution for union activities entitles an alien to asylum”). 260 Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985); see also Canjura-Flores v. INS, 784 F.2d 885, 889 (9th Cir. 1985) (reversing BIA denial withholding, based on applicant’s testimony that he was involved in certain political activities). 254

12-53

Chapter 12

Any attempt to unravel economic from political motives is untenable.… [S]ubstantial evidence … compels the view that Guatemalan authorities persecuted Osorio because he and his union posed a political threat to their authority via their organized opposition activities. 255

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

belief. 261 Otherwise, nexus cannot be shown. Therefore, in all cases, the asylum adjudicator will examine the nature and expression of the applicant’s beliefs and activities to determine if the persecutor knew or could learn of them.

Chapter 12

PRACTICE TIP: Expert witnesses or affidavits regarding the country and its political climate can help establish that the persecutor perceived the applicant’s actions or beliefs as political. Such testimony can show the “nexus” between the past or feared harm and the applicant’s political opinion. This is very useful where your client is not as eloquent at verbally expressing the connection. 3. Neutrality A person who refuses to take sides in a country’s internal conflict often offends one or both sides with his visible nonparticipation. Neutrality can also be a political opinion, but it is often difficult to prove persecution on the basis of neutrality, given the necessity to prove persecutor motives and connection of the persecution to an enumerated ground. 262 The BIA has long rejected the notion that neutrality constitutes political opinion. In Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) for example, the BIA found that a member of a taxi co-op who was threatened by guerillas for failure to participate in work stoppage had a neutral position, but not a political opinion. The Supreme Court in Elias-Zacarias, when confronted with this issue, distinguished between political opinion and “such quite different concepts as indifference, indecisiveness, and risk averseness.” 263 The Court stated in dicta, “Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so.” 264 The Court, however, did not foreclose the possibility that a neutral opinion could be a political opinion forming the basis of an asylum claim. The Ninth Circuit is the only circuit to have affirmatively recognized neutrality as a political opinion. The Ninth Circuit follows the doctrine of “hazardous neutrality,” in which a lack of political opinion may constitute a political opinion for purposes of the INA. 265 In Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997), the Ninth Circuit explained that the expression of neutrality under this doctrine must occur in an environment in which political neutrality is fraught with hazard, from governmental or uncontrolled anti-governmental forces; that it must be a conscious and deliberate 261

See, e.g., Avciouglu v. Mukasey, 300 Fed. Appx. 474, 476 (9th Cir. 2008) (denying asylum because of a lack of evidence that the Turkish government was aware of any beliefs of conscientious objection); GarciaRamos v. INS, 775 F.2d 1370 (9th Cir. 1985); (finding that participation in demonstrations, propaganda distribution and slogan painting were sufficient to establish a well-founded fear of persecution because even though the government did not yet know about these activities, it might become aware of them); Matter of Acosta, 19 I&N Dec. 211, 235 (BIA 1985)(denying asylum to a Salvadoran man who had refused to take part in strikes supported by the guerrillas. “In respondent’s case there are no facts showing that the guerrillas were aware of or sought to punish the respondent for his political opinion; nor was there any showing that the respondent’s refusal to participate in the work-stoppages was motivated by his political vision”). 262 See, e.g., Rodrigo v. Gonzales, 151 Fed.Appx. 573 (9th Cir. 2005)(the persecutor must know of the applicant’s neutrality); Alonzo v. INS, 915 F.2d 546 (9th Cir. 1990) (finding that a Guatemalan man had never revealed his neutrality to the government nor provided any evidence that they would ever discover it, so he did not have a well-founded fear of persecution. 263 Elias-Zacarias, 502 U.S. at 483. 264 Elias-Zacarias, 502 U.S. at 483. 265 See Rivera-Moreno v. INS, 213 F.3d 481, 483 (9th Cir. 2000).

12-54

Tab Position 1

Immigrant Legal Resource Center June 2017

choice, which may be established by the applicant’s pronouncements or by his or her actions; and that it must be sufficiently articulated for it to be the basis of the applicant’s past or anticipated persecution. 266

Similarly, the First Circuit has concluded that political neutrality alone will not support an asylum claim unless there is a reasonable basis for believing that such neutrality would subject a person to persecution. 273 The Eleventh Circuit has come out strongly against recognizing neutrality as a political opinion. 274 Other circuits, including the Fourth, have not ruled on the subject. 275 Given the widespread rejection of neutrality as political opinion, practitioners should instead pursue an actual or imputed political opinion theory; neutrality is relevant only in a few jurisdictions, and where a person’s affirmative neutral stance has offended a persecutor. Fortunately, most applicants 266

Sangha, 103 F.3d at 1488 (the court in this case commented that refusal to join guerrilla forces or illegal government forces can be an expression of neutrality, but held that the asylum seeker had not shown the required nexus between his neutral opinion and the persecutor’s motives); see also Ramos-Vasquez v. INS, 57 F.3d 857, 863 (9th Cir. 1995); Canas II, 970 F.2d 599 (rejected the applicants’ claim that they were persecuted by the government for religious reasons when they refused mandatory military service, but held they were persecuted for their imputed political opinion of neutrality); Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984)(political neutrality was the basis of a persecution claim where the applicant was threatened for his refusal to collaborate with the Salvadoran guerrillas). 267 See Bolanos-Hernandez, 767 F.2d at 1281. 268 See Del Valle v. INS, 776 F.2d 1407 (9th Cir. 1985). 269 See, e.g., Bolanos-Hernandez, 767 F.2d 1277; Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (denying asylum because the applicant did not make an explicit or implicit declaration of neutrality). 270 Ramos-Vasquez, 57 F.3d at 863 (applicant showed neutrality by deserting rather than illegally shooting deserters). 271 Matter of Vigil, 19 I&N Dec. 572, 576 (BIA 1988). 272 Matter of Vigil, 19 I&N Dec. 572 (Vigil argued that because he had a “neutral stance” between the guerrillas and the Government in El Salvador, he was eligible for asylum under Bolanos, 767 F.2d 1277). 273 See Novoa-Umania v. INS, 896 F.2d 1, 3 (1st Cir. 1990) (holding that neutrality can only constitute a political opinion if a reasonable person would fear “1) that a group with the power to persecute him intends to do so specifically because the group dislikes neutrals, or 2) that such a group intends to persecute him because he will not accept its political point of view, or 3) that one or more such groups intend to persecute him because each (incorrectly) thinks he holds the political views of the other side”); Alvarez-Flores v. INS, 909 F.2d 1, 6 (1st Cir. 1990). 274 See Perlera-Escobar v. INS, 894 F.2d 1292, 1297-98 (11th Cir. 1990) (adopting the position that neutrality is a political opinion “would create a sinkhole that would swallow the rule”). 275 See Cruz-Lopez v. INS, 802 F.2d 1518, 1520 n.3 (4th Cir. 1986) (expressing no opinion as to whether neutrality constitutes a “political opinion” within the meaning of the Act); M.A. v. INS, 899 F.2d 304, 315 (4th Cir. 1990) (stating that the issue of neutrality is “unclear”), superseded by statute on other grounds as recognized in Peter v. Gonzalez, 210 Fed. Appx. 303, 307 (4th Cir. 2006).

12-55

Chapter 12

Moreover, neutrality does not require a verbal statement of refusal. For example, flight can be sufficient; 267 and refusal to join a “death squad” has also constituted an expression of political neutrality. 268 In other words, an applicant can establish his political neutrality either by pronouncement 269 or by his actions. 270 In Matter of Vigil, 271 the BIA stated that the applicant did not express his desire to remain neutral while in El Salvador, nor did he receive threats from the guerrillas or the Government because of his opinion of neutrality. 272

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

with a claim based on neutrality can also base it on the doctrine of imputed political opinion. Persons who refuse to take sides in a conflict are often perceived as opponents or branded as “collaborators” by at least one of the groups. For example, in Martinez-Buendia v. Holder, 616 F.3d 711 (7th Cir. 2010), the Seventh Circuit found that Martinez-Buendia was persecuted by Fuerzas Armadas Revolucionarias de Colombia (FARC), the same group that sought to recruit Elias-Zacarias, based on an imputed political opinion because of her refusal to align her humanitarian works with them.

Chapter 12

D.

Imputed Protected Grounds

An imputed protected ground exists when the persecutor has imputed—either mistakenly or deliberately—a political opinion, membership in a particular social group, religion, nationality, or race on the victim. In other words, the persecutor attributes to the applicant one of the five protected grounds. Thus, imputed protected ground is a doctrine that renders persecution for a perceived rather than an actual political opinion, membership in particular social group, religion, national, or race a basis for asylum. The imputed protected ground doctrine arose in the 1980s and became established in the 1990s. The first case considering the possibility that an imputed protected ground could make an individual eligible for asylum was an imputed political opinion case. 276 The Ninth Circuit explained, “In most societies, a failure to take sides or to articulate a political opinion does not ordinarily trigger retribution. However, when through legally cognizable inferences or otherwise, an alien establishes a prima facie case that he is likely to be persecuted because of the government’s belief about his views or loyalties; his actual political conduct, be it silence or affirmative advocacy and his actual political views, be they neutrality or partisanship, are irrelevant; whatever the circumstances, the persecution is properly categorized as being “on account of … political opinion.” 277 One of the early cases in the history of this doctrine was Matter of S-P-, 21 I&N Dec. 486 (BIA 1996), involving an asylum applicant that had been detained and abused by the Sri Lankan government, who believed him to be a member of the guerrilla group Liberation Tigers of Tamil Eelam (“LTTE” or “Tigers”). In reality, the Tigers had forcefully taken the applicant from the refugee camp where he had been living and forced him to work for them as a welder in one of their base camps. Nevertheless, the Sri Lankan army captured the applicant in order to obtain information about the identity of guerrilla members and the location of their camps. Recognizing that the Sri Lankan government had made assumptions about the applicant’s association with the Tigers guerrilla group, the BIA granted him asylum based on imputed political opinion: “Taking into account the context of the Sri Lankan conflict, the information in the State Department Country Reports, and the circumstances, duration and extent of the abuse inflicted, we find that the applicant has produced evidence from which it is reasonable to

276

See Hernandez-Ortiz v. INS, 777 F.3d 509, 517 (9th Cir. 1985), superseded by statute on other grounds as recognized in Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2008). 277 Hernandez-Ortiz, 777 F.3d at 517 (emphasis added).

12-56

Tab Position 1

Immigrant Legal Resource Center June 2017

believe that those who harmed him were in part motivated by an assumption that his political views were antithetical to those of the Government.” 278 While imputed political opinion has long been recognized as a possible ground for asylum, the doctrine of imputed protected ground is also pertinent to the other enumerated grounds. 279 The BIA has since referred to “imputed protected ground” as an alternative to showing that the harm was motivated by an actual protected ground. 280

§ 12.15 Spotlight on Membership in a Particular Social Group There are five enumerated grounds that form the bases of an asylum claim. Membership in a particular social group (PSG) is one basis for asylum enumerated in the refugee definition. This particular ground receives much attention because it is so hard to decipher what is meant by the term “particular social group.” This ground for asylum is constantly evolving and subject to much litigation. Although we cannot cover in detail all the caselaw related to showing nexus to each ground for asylum, we will use social group as an example of the many ways one proves nexus. To win an asylum case based on social group, the applicant must show: (1) that the she is a member of a particular social group; and (2) that he or she faces persecution because of that membership (nexus).

278

In re S-P-, 21 I&N at 495. See, e.g., Amanfi v. Ashcroft, 328 F.3d 719 (3rd. Cir. 2003)(involving imputed identity as a gay man); Hovhannisyan v. Mukasey, 303 Fed.Appx. 500 (9th Cir. 2008)(the BIA erred in failing to consider petitioners’ imputed nationality claim, where petitioners suffered persecution in Armenia for being perceived as foreigners, although they were citizens of Armenia). But see, In Akmal v. Ashcroft, 117 Fed.Appx. 226, 228 (3rd Cir. 2004) (denying asylum based on persecution on account of the applicant’s HIV status and his imputed membership in the particular social group of homosexual or adulterer men); Yongzheng Chen v. U.S. Atty. Gen., 246 Fed.Appx. 656, 658 (11th Cir. 2007) (court rejected applicant’s imputed religion claim despite evidence that the police had arrested him for “illegally transporting religious literature for underground churches”); in Toufighi v. Mukasey, 538 F.3d 988 (9th Cir. 2007)(rejecting the applicant’s claim of persecution based on imputed apostasy by Iranian officials onto the applicant). 280 In re R-A-, 22 I&N Dec. 906, 937-38 (BIA 2001). 281 See Ruqiang Yu v. Holder, 693 F.3d 294 (2nd Cir. 2012). 282 See Kebede v. Ashcroft, 366 F.3d 808 (9th Cir. 2004); Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002). 283 See Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2001). 284 See Ratnam v. INS, 154 F.3d 990 (9th Cir. 1998). 279

12-57

Chapter 12

Furthermore, it is important to note that the intention for the imputation is irrelevant to the legal outcome. In the case of political opinion, for example, there can be various reasons why a persecutor imputes a particular political opinion on the applicant: as personal punishment for counteracting government corruption, 281 retaliation for the opinion of a family member, 282 involvement in community empowerment, 283 mistake, or some other intention. However, so long as the imputed political opinion is the reason for the persecution, the nexus requirement has been met. Finally, remember that mixed motives do not preclude a finding of persecution based on an imputed ground. 284 What matters is that the evidence demonstrates the imputed protected ground was at least one central reason for the persecution.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A.

What Is a “Particular Social Group”?

Chapter 12

The first thing to bear in mind about this category is that it does not require formal membership in an official or identifiable group or organization, such as a political party, labor union, church, or the like. An easier way to conceptualize it would be to analyze whether the applicant would be viewed by others as part of a grouping of persons who were or would be targeted because they are seen as different than, or threatening to, the persecutors. There is no definition of “particular social group” in the INA, but the UN Handbook defines it as a group of “persons of similar background, habits or social status.” 285 In other words, a social group is a group of people who share or are defined by certain characteristics. Characteristics could be a combination of age, geographic location, class, ethnicity, family ties, and gender. 1. Matter of Acosta and the “immutable characteristic” standard In 1985, the BIA put forth a test for determining whether or not a person was a “member of a particular social group” in Matter of Acosta, 286 requiring that members of a particular social group share a “common, immutable characteristic.” In Matter of Acosta, the BIA defined “immutable characteristic” as “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” 287 In that case, the BIA evaluated whether or not a group comprised of “COTAXI drivers and persons engaged in the transportation industry in El Salvador” constituted a particular social group. Acosta claimed that he was persecuted as such because the COTAXI drivers were targeted by the guerrillas when they refused to participate in work stoppages. However, the BIA rejected this construction of a social group, finding that neither “being a taxi driver in San Salvador” nor “refusing to participate in guerrilla-sponsored work stoppage” is an immutable characteristic. The persecution could be stopped by changing jobs or cooperating with the work stoppages. The court went on to explain that the shared characteristic amongst members of a particular social group might be “an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience,” but the court was careful not to provide too specific a definition of who is a member of a qualifying group by stating that “the particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis.”288 Matter of Acosta, therefore, did not provide clear guidance on how a particular social group was to be defined. However, over the next two decades, the “immutable characteristic” test was eventually adopted by the First Circuit, 289 the Third Circuit, 290 the Sixth Circuit 291 and the Seventh Circuit; 292 285

HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1992 UNHR) (hereinafter UN HANDBOOK) at ¶ 78, p.13. 286 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). 287 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). 288 Id. at 227. 289 Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985) (Family relations can be a social group). 290 Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993) (Iranian women who refuse to conform to the government’s gender-specific laws and social norms constitute a particular social group). 291 Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003) (Tattooed youth in El Salvador are not a particular social group). 292 Lwin v. INS, 144 F.3d 505 (7th Cir. 1998) (Parents of Burmese student dissidents are a particular social group).

12-58

Tab Position 1

Immigrant Legal Resource Center June 2017

and it led to a significant and positive expansion of asylum protection for groups previously not recognized. For example, in Matter of Kasinga, the BIA recognized the particular social group of “[y]oung women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice.” 293 This case became the seminal case in what has become a long history of case law analyzing protection against gender-based persecution. Similarly, the case of Matter of TobosoAlfonso recognized gay men in Cuba as a particular social group. 294

Sanchez-Trujillo also articulated a four-element test for a social group claim that remains valid: (1) definition of the parameters of the social group, (2) evidence that the applicant is a member of the social group, (3) evidence that the social group is being persecuted, and (4) the presence of special circumstances that permit a per se finding and which do not require findings of individual persecution of members of the group. 296 The Ninth Circuit reconciled the contradicting standards set by these two tests for particular social group in the case of Hernandez-Montiel. 297 In that case, the Ninth Circuit recognized the particular social group of “gay men with female sexual identities in Mexico” and held that a particular social group is one united by a “voluntary association” or by an “innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” 298 The Second Circuit adopted the “voluntary associational relationship” standard and added that the particular social group had to be “recognizable and discrete.” 299 The UNHCR guidelines clarify that a particular social group is “a group of persons who share a common characteristic other than their

293

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990). The actual group discussed in the case refers to “homosexuals” but this case has paved the way for protection for individuals fleeing from sexual orientation—and gender identity-based persecution. 295 Sanchez-Trujillo, 801 F.2d 1571, 1576 (9th Cir. 1986) (emphasis added) (affirming the BIA’s determination that young, urban, working-class males who had never demonstrated loyalty to the government did not constitute a particular social group). 296 Sanchez-Trujillo, 801 F.2d at 1574. Other Ninth Circuit cases denying social group claims include: De Valle, 901 F.2d 787 (family members of military deserters); Arriaga-Barrientos v. United States, 925 F.2d 1177 (9th Cir. 1991), opinion amended and superseded, 937 F.2d 411 (persons who are or have been in the Guatemalan military). But see Cruz-Navarro, 232 F.3d 1024 (holding “persons who are persecuted because of their status as a former police or military officer … may constitute a cognizable social group under the INA”). 297 Hernandez-Montiel, 225 F.3d 1084, 1093 (9th Cir. 2000). 298 Hernandez-Montiel, 225 F.3d 1084, overruled on other grounds by Thomas, 409 F.3d 1177, vacated by 547 U.S. 183 (2006). 299 See Gomez v. INS, 947 F. 2d 660 (2nd Cir. 1991). 294

12-59

Chapter 12

The Ninth Circuit, however, appeared to create a different standard in the case of Sanchez-Trujillo v. INS, requiring a “voluntary associational relationship” among the members of the group. 295 This requirement has no basis in the statute or in the UN Handbook and is actually fundamentally inconsistent with many sociological indices of social groups, which are involuntary and which were recognized by the BIA and other circuits (e.g., age, sex, social class, etc.)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

risk of being persecuted, or who are perceived as a group by society.” 300 The guidelines go on to give priority to the immutable characteristic analysis by stating that the question of social perception is only “an alternative to be considered if and only if a determination is made that the group characteristic is neither immutable nor fundamental.” 301 2. “Social distinction”

Chapter 12

In 2014, the BIA decided two significant cases clarifying the meaning of “particular social group” after a series of decisions had created a circuit split about how particular a social group must be defined and whether a social group must be recognized as such in a given country The BIA first added the element of “social visibility to the analysis of a purported social group in 2006, calling it “an important consideration in identifying the existence of a ‘particular social group.’” 302 Applying this standard again in Matter of A-M-E- & J-G-U, the BIA rejected the social group of “affluent Guatemalans” noting that it not only lacked sufficient “social visibility” but that it also lacked adequate “particularity” to constitute a particular social group. 303 In order to have social visibility, applicants must demonstrate that the “shared characteristic of the group be recognizable by others in the community.”304 The BIA reaffirmed its reading of these two new elements into the particular social group ground for protection in 2008 in the case of Matter of S-E-G. 305 Subsequently, in the case Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014), the BIA tried to bring clarity to these new elements. In that case, the particular social group in question was “Honduran youth who have been actively recruited by gangs but who have refused to join because they oppose the gangs.” 306 The respondent had been beaten and kidnapped by members of the Mara Salvatrucha gang, who also threatened to kill him if he did not join their gang. The gang assaulted him and his family as they were traveling in Guatemala; and they would shoot and throw rocks and spears at him several times per week. In Matter of M-E-V-G, the BIA clarified that “social visibility” does not mean literal or “ocular” visibility. The BIA gave this requirement the new name of “social distinction.” Additionally, the court clarified that this element is “determined by the perception of the society in question, rather than by the perception of the persecutor.” [W]hether those with a common immutable characteristic are set apart, or distinct, from other persons within society in some significant way…. A viable particular social group should be perceived within the given society as a sufficiently distinct group. The

300

Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Refugee Agency, U.N. Doc. HCR/GIP/02/02 (2002). 301 Id. 302 Matter of C-A-, 23 I&N Dec. 951 (BIA 2006). 303 Matter of A-M-E- & J-G-U, 24 I&N Dec. 69 (BIA 2007). 304 In re A-M-E & J-G-U, 24 I&N Dec. 69, 74 (BIA 2007) (citing Matter of C-A-, 23 I&N Dec. at 957) (holding that noncriminal informants working against a Colombian drug cartel were not part of a particular social group). 305 24 I&N Dec. 579 (BIA 2008). 306 Matter of M-E-V-G-, 26 I&N at 228.

12-60

Tab Position 1

Immigrant Legal Resource Center June 2017

members of a particular social group will generally understand their own affiliation with the grouping, as will other people in the particular society. 307

PRACTICE TIP: The BIA’s social distinction test requires evidence to show society’s perception of the particular social group in the applicant’s country of origin. The client’s affidavit is an important source for explaining how the members of the group are viewed by society and treated differently. News articles, reports, or other sources of country conditions information that discuss the group as such (i.e., domestic violence victims, former gang members, street children) are helpful in showing that the group is recognized in that society. Efforts by the foreign government to protect the group, such as through legislation or enforcement, can also help prove social distinction, provided there is also evidence of the ineffectiveness of the government’s efforts. Since the BIA’s decision in Matter of M-E-V-G, the Ninth Circuit has accepted that it is not the persecutor’s perception but rather the perception of society at large that matters in the social distinction determination. 311 The Tenth Circuit similarly altered the definition of social visibility; 312 and both the Second and the Fifth Circuits seem to have also rejected an “on-sight” visibility definition of “social visibility.” 313 This is one of the more controversial and rapidlychanging areas of asylum law and practitioners are advised to keep a close eye on the development of case law on this topic. 3. Particularity In Matter of W-G-R, the Board stated that particularity means that the group is not overbroad or diffuse but rather identifies “a discrete class of persons.” However, there is a wide-range of disagreement as to what constitutes “particularity.”

307

Matter of M-E-V-G, 26 I&N at 238. (The Board did not make a specific determination in this case. Instead, the case was remanded back to the immigration judge for a decision.) 308 Matter of W-G-R-, 26 I&N at 209. 309 Matter of W-G-R-, 26 I&N at 221. 310 Matter of W-G-R-, 26 I&N at 221. 311 See, e.g., Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014). 312 Rivera-Barrientos v. Holder, 666 F.3d 641 (10th Cir. 2012). 313 See Orellana-Monson, 685 F.3d at 522 (5th Cir. 2012); Koudriachova v. Gonzales, 490 F.3d 255, 261 (2nd Cir. 2007).

12-61

Chapter 12

In Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), the respondent was a citizen of El Salvador and a former member of the Mara 18 gang. He testified that after leaving the gang, members confronted him and attacked him twice, shooting him in the leg during one of those attacks. The particular social group that formed the basis of his claim was “former members of the Mara 18 gang in El Salvador who have renounced their gang membership.” 308 The court held that the alleged group lacked particularity because it was “too diffuse, as well as being too broad and subjective … as described, the group could include persons of any age, sex, or background … it is not limited to those who have had a meaningful involvement with the gang.” 309 Moreover, the group lacked social distinction because it was unclear that former Mara 18 gang members are “perceived, considered, or recognized in Salvadoran society as a distinct group.” 310

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

For example, regarding the requirement of particularity, in Perdomo v. Holder, the Ninth Circuit reversed a ruling by the BIA that said that “all women in Guatemala” could not be a cognizable social group because it was overbroad. 314 The court stated that, “size and breadth of a group alone does not preclude it from qualifying as a social group.” Similarly, the Eighth Circuit has found that “Somali females” constitute a particular social group. 315 On the other hand, the same court has found that “the mentally ill [in Jamaica] are too large and diverse a group to qualify” as a particular social group because it was not “a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.” 316 When presenting a social group claim, practitioners should proactively emphasize that the group consists of a discrete class of persons who identify being part of the group. The group must be discreet enough that they identify themselves as part of that group, regardless of the size of the group. PRACTICE TIP: Avoid Circular Reasoning. Avoid articulating a social group based on the persecution itself. When practitioners define the social group by the harm that their clients suffered or feared, they risk a denial of asylum because they fail to show the central reason for the persecution in the first place. For example, to define a particular social group as “torture survivors from Yemen” does not explain why the members of that group were subjected to torture to begin with. If it was due to ethnicity, religion or political opinion, then that would be an immutable characteristic of the group. Defining a social group circularly presents a problem in establishing a nexus between the persecution and the social group. B.

Family Ties

Family relationships may be the basis of a particular social group. However, it is not sufficient for someone merely to have a family relationship to a specific person (presumably the main target of the persecution). An asylum applicant has to then prove that this relationship is the basis for the persecution feared. Otherwise, “it will not matter whether the family is a ‘social group’ or not because refugee status will be denied on the ‘on account of’ prong in any event.” 317 Attenuated family links, such as those of distant relatives, will not on their own be sufficient evidence that one is a member of a “particular social group.” Rather, the familial relationship must be a “strong and discernible bond” such that it becomes a “foreseeable basis for personal persecution.” 318 In Tchoukhrova v. Gonzalez, the Ninth Circuit held that disabled Russian children AND their parents constitute a particular social group. 319 The court stated that in Russia, disabled children constitute a distinct and identifiable group, and they share not only a common characteristic, but also a common experience. Moreover, Russian parents who provide care for their disabled children act in a manner that is so fundamental to their identities that they should not be required to change. However, the court did not decide whether such persons constitute a social group in 314

Perdomo v. Holder, 611 F.3d 662 (9th Cir.2010). Hassan v. Gonzales, 484 F.3d 513, 518 (8th Cir.2007). 316 Raffington v. INS, 340 F.3d 720 (8th Cir. 2003). 317 Lin v. Ashcroft, 356 F.3d 1027, 1040 (9th Cir. 2004). 318 Lin, 356 F.3d at 1040. 319 Tchoukhrova v. Gonzalez, 404 F. 3d 1181 (9th Cir. 2005). 315

12-62

Tab Position 1

Immigrant Legal Resource Center June 2017

every country. Other circuits have also recognized family relationships as the basis to find “membership in a particular social group.” 320 Additionally, the Ninth Circuit Court of Appeals in Aguirre-Cervantes v. INS, where the petitioner was abused by her father, found that the abuse constituted persecution on account of her membership in a particular social group consisting of her immediate family, whose members were also abused by her father. 321

Some courts have rejected “membership in a particular social group” based on family relationships because of the social visibility and particularity requirements. For example, in the case of BonillaMorales v. Holder, the Sixth Circuit rejected the social group of “family members of youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected such membership” because it lacked particularity and social visibility. 324 On the other hand, in the Fourth Circuit, “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses” satisfied the requirements of a particular social group, because the added element of prosecutorial witnesses fulfilled the particularity and visibility requirements. 325 PRACTICE TIP: Many children and families fleeing gang violence in Central America have been successful in asylum claims based on family as a particular social group. For example, if the father was killed by a gang member due to his failure to pay “rent,” and then the children were targeted and told that if they did not join the gang the same thing would happen to them, the mother and children may be able to seek asylum based on their relationship to the father. It is important to distinguish the motive of extortion with respect to the father, from the motive of family relationship with respect to the mother and children. The underlying motive with respect to the father need not necessarily be a particular social group to qualify the mother or children for

320

See Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) (granting asylum because of persecution the applicant suffered based on his relationship with his brother); Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004) (holding that “family” constitutes a particular social group); Iliev v. INS, 127 F.3d 638, 642 (7th Cir. 1997) (recognizing that family could constitute a particular social group). 321 Aguirre-Cervantes v. INS, 242 F.3d 1169 (9th Cir. 2001). 322 Demiraj v. Holder, 631 F.3d 194 (5th Cir. 2011). 323 Demiraj, 631 F.3d at 199. 324 Bonilla-Morales v. Holder, 607 F.3d 1132, 1137 (6th Cir. 2010); see Matter of S-E-G-, 24 I&N Dec. 579, 583 (BIA 2008). 325 Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011).

12-63

Chapter 12

Cases such as Demiraj v. Holder in the Fifth Circuit have emphasized the need to establish a nexus between the family relationship and the persecution, in addition to simply demonstrating a family relationship to a target of persecution. 322 In Demiraj, the court found that although being a member of the Demiraj family (the wife and son of a prosecution witness) constituted a particular social group, the petitioners failed to adequately show that their fear of persecution was on account of being a member of their family. The court explained that because the applicants’ persecutors did not seek to overcome the characteristics of wife and son of Mr. Demiraj, but rather sought to hurt the petitioners because they were important to Mr. Demiraj, the persecution was on account of a “personal motivation” rather than the family ties and therefore there was no nexus. 323

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

asylum. The applicant only needs to show that the persecution against her was motivated on account of her familial association with her father.

Chapter 12

C.

Clan Membership

The BIA held in Matter of H- that membership in the Marehan clan of Somalia is classified as a social group, given the shared ties of kinship and identifiable linguistic commonalities. 326 Quoting the State Department’s Country Reports, the BIA noted that, “victims were singled out for no other reason than their clan affiliation.” 327 Furthermore, the General Counsel’s office issued a memo in December 1993 finding that clan membership in Somalia can meet the definition of membership in a particular social group. The opinion notes that clan membership is a highly recognizable, immutable characteristic that is acquired at birth and is inextricably linked to family ties. It is the type of affiliation that, in the words of Acosta, is “beyond the power of an individual to change or that is so fundamental that it ought not to be required to be changed.” 328 PRACTICE TIP: Don’t hesitate to advance theories of persecution based on more than one ground. Your clients may fit into several of the enumerated grounds at the same time, and in fact it is advisable to advance alternate theories. However, you must make sure to demonstrate nexus between the persecution and each of the grounds claimed. D.

Gender and Domestic Violence as a Particular Social Group 329

The issue of “gender asylum” continues to be a leading issue in refugee law and policy. Gender meets the BIA’s “immutable characteristics” test for a social group. The Board in Matter of Acosta articulated the standard for particular social group and listed “sex” as an example of a characteristic defining a social group. 330 Therefore, it is established law that gender can be among the defining characteristics of a social group, 331 in combination with other relevant immutable/fundamental characteristics, such as nationality, 332 bodily integrity, 333 and refusal to conform or submit. 334 As mentioned previously, it is important to consider all grounds that might apply in a given case. For instance, gender claims often involve a social group and political opinion. Imputed political opinion can be used as the basis in gender-related asylum claims, where the victim has opposed laws that discriminate on the basis of gender, or where she fears persecution on the basis of feminist beliefs. 326

In re H-, 21 I&N Dec. 337. Id. (quoting the Committees on Foreign Relations and Foreign Affairs, Country Reports on Human Rights Practices for 1992, 103d Cong., 1st Sess. 235 (Joint Comm. Print 1993)). 328 Id. (citing Matter of Acosta, 19 I&N Dec. at 234). 329 For specific technical assistance on the complex issues involved in gender-based asylum, see Center for Gender & Refugee Studies or the Tahirih Justice Center. 330 Matter of Acosta, 19 I&N Dec. at 232 (“[T]he shared characteristic might be an innate one such as sex.…”) 331 See Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993); Fisher v. INS, 79 F.3d 955 (9th Cir. 1996); Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). 332 Matter of Kasinga, 21 I&N Dec. 357; Hernandez-Montiel, 225 F.3d 1084. 333 Matter of Kasinga, 21 I&N Dec. 357. 334 Fatin, 12 F.3d at 1240; Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994), superseded by statute on other grounds, Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3006-546. 327

12-64

Tab Position 1

Immigrant Legal Resource Center June 2017

Actual political opinion of the applicant can also be the basis for asylum in a gender-related case. The actions of women, whether organizationally or individually, who resist or defy laws and practices in their countries, whether they are religious (e.g., those common in fundamentalist countries), legal (e.g., discrimination regarding employment, education, etc.), or cultural (e.g., female genital mutilation, ‘bride burning’ and state and domestic violence against women) should be seen as expressing political opinions.

The Seventh Circuit applied similar reasoning in Sharif v. INS, when it denied asylum to the respondent who failed to establish past or future persecution based on her status as a “westernized woman.” 337 A similar reluctance to recognize gender-based persecution when the particular social group is too broad could be seen in Safaie v. INS, where the Eighth Circuit found that gender is overbroad and that “no factfinder could reasonably conclude that all Iranian women had a wellfounded fear of persecution based solely on their gender.” 338 The enforcement of the strict dress code and rules of the Iranian government did not rise to persecution, even though they may be extreme by Western standards. In Kante v. Holder, one of the reasons the applicant was denied asylum was because her social group was defined as “women subjected to rape as a form of government control” when there was no other similar characteristic that the individuals in this group shared. 339 On the other hand, in Gomez-Zuluaga v. U.S. Att’y Gen, the Third Circuit recognized that “women who have escaped involuntary servitude after being abducted and confined by the FARC,” was a social group that was sufficiently immutable, narrow, and distinctive to support a claim for well-founded fear of future persecution. 340 But the circular reasoning in the first case made the very persecution a characteristic of the social group; whereas in the second case, the nexus was not problematic

335

Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993). Fatin, 12 F.3d at 1241, 1242 (emphasis in original). 337 Sharif v. INS, 87 F.3d 932 (7th Cir. 1996). 338 Safaie, 25 F.3d at 640. 339 Kante, 634 F.3d 321, 345-46 (6th Cir. 2011). 340 Gomez-Zuluaga v. U.S. Att’y Gen, 527 F.3d 330 (3rd Cir. 2008). It is worth noting that this group would likely not be useful for a claim based on past persecution. The characteristics which define the group must exist at the time of persecution. Lukwago v. Ashcroft, 329 F.3d 157, 172 (3rd Cir. 2003). But see Sarkisian v. Att’y Gen., 322 Fed. Appx. 136 (3rd Cir. 2009) (denying asylum on the basis that there was no wellfounded fear of future persecution on account of the applicant’s status as a victim of past persecution.) 336

12-65

Chapter 12

One of the first cases in the areas of opposition to gender-discriminatory laws was Fatin v. INS, which examined Iranian laws that prescribe strict dress and conduct laws for women and which involved membership in a particular social group in addition to political opinion. 335 The Third Circuit upheld the BIA in denying asylum, because the court found that the record contained insufficient evidence that the sanctions imposed for violation of the laws amounted to persecution. However, the decision is significant because it established that support for the equality of women and for women’s rights is a cognizable political opinion. However, the court suggested that Fatin’s social group claim would have had merit if she had presented compelling evidence of her membership in a more circumscribed group of Iranian women who either “refuse[d] to conform” to such gender-specific laws or for whom such compliance would be “profoundly abhorrent.” 336

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

because it was persecution that happened in the past, that would likely cause her persecutors to persecute her again in the future. Understanding the ways in which different forms of gender-based violence rise to the level of persecution and the often-complex cultural context in which they do so, will not only be important to help you articulate a successful social group that is separate from the persecution itself, it will also be important to help educate the adjudicator.

Chapter 12

1. Female genital mutilation The landmark case Matter of Kasinga granted asylum to the applicant, who had a legitimate fear of female genital mutilation (FGM). 341 The BIA held that a well-founded fear of FGM could be the basis for a viable claim to asylum based on membership in a particular social group. 342 The Board ruled that the applicant belonged to the social group of “[y]oung women of the Tchamba-Kunsuntu Tribe, who have not had FGM, as practiced by the tribe, and who oppose the practice,” 343 demonstrating how other protected grounds, such as nationality, may intersect with membership in a particular social group. Additionally, the BIA rejected the punitive or malignant intent argument asserted by the INS for persecution. 344 The decision marks an increased level of sensitivity for gender-based asylum claims. Although parents cannot derive asylum status from their children, when it comes to fearing FGM for your daughter, the Sixth Circuit has recognized that the mental anguish that parents can suffer constitutes direct persecution on the parents. 345 Unfortunately, most circuits see this claim for asylum as derivative instead of direct. 346 Although the Second Circuit has not addressed this specific issue, it has suggested exploring humanitarian asylum as another possible avenue for immigration relief: “Should [the parent] press the argument, the Board may consider on remand whether the mental anguish of a mother who was herself a victim of genital mutilation who faces the choice of seeing her daughter suffer the same fate, or avoiding that outcome by separation from her child, may qualify as such ‘other serious harm.’” 347 Similarly, spouses of women who may undergo FGM typically cannot prove per se persecution based on those facts alone. However, these fears can be used to bolster an independent claim of asylum. In Gatimi v. Holder, 578 F.3d 611 (7th Cir.2009), the Mungiki sought to perform FGM on the applicant’s wife because he had defected from the group. Because the applicant refused to

341

Matter of Kasinga, 21 I&N Dec. 357. Matter of Kasinga, 21 I&N Dec. at 358. Similarly, in Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005), the court held that women opposed to FGM who belong to an ethnic group practicing FGM is a proper formulation of a social group. Note, however, that this court did not find actual opposition to FGM to be material in the formulation of the group. 343 Matter of Kasinga, 21 I&N Dec. at 357. 344 Matter of Kasinga, 21 I&N Dec. at 365. 345 Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004). 346 See Gumaneh v. Mukasey, 535 F.3d 785, 790 (8th Cir. 2008), Niang v. Gonzales, 492 F.3d 505, 510-14 (4th Cir. 2007), Olowo v. Ashcroft, 368 F.3d 692, 700-04 (7th Cir. 2004). 347 Kone v. Holder, 596 F.3d 141, 153 (2nd Cir. 2010). 342

12-66

Tab Position 1

Immigrant Legal Resource Center June 2017

produce his wife, he was threatened, kidnapped, and tortured. The Seventh Circuit found that in this case, genital mutilation of the applicant’s wife did constitute persecution of the applicant. 348 2. Claims based on domestic violence

Matter of A-R-C-G is also significant for cases involving young girls who are in an abusive relationship or being exploited and abused, and who are unable to leave. Such situations may include forced marriages, sexual slavery, girls viewed as property by gang members, girls viewed as property in their relationships, and any combination of these perpetrated by gangs, family members or others. Country conditions experts can be particularly helpful in establishing evidence where written documentation is lacking or tends to undercut the claim. Experts can also help establish the contextspecific aspects of the elements, such as social distinction, why a particular opinion is political, etc. In 2002, the UNHCR issued helpful guidelines on social group and gender issues, and advocates should consult and consider using them in arguments. 349 Of course, gender cases are not solely about the social group and political opinion grounds. If possible, cases should also be argued on the basis of religion, 350 race, or nationality. 3. Forced marriage The Department of State recognizes that forced marriages constitute a human rights violation under international law. 351 In the case of Tang v. Gonzales, 200 Fed. Appx. 68, 70 (2nd Cir. 348

Gatimi, 578 F.3d at 617 (“If your house is burned down, or your child killed, in order to harm you, the fact that you are not touched does not mean that those acts cannot constitute persecution of you”). 349 See UNHCR, Guidelines on International Protection: Membership in a Particular Social Group (HCR/GIP/02/01), 7 May 2002), available at www.unhcr.org/publ/PUBL/3d58dea.pdf; Guidelines on International Protection: Gender-Related Persecution (HCR/GIP/02/01, 7 May 2002), available at www.unhcr.org/publ/PUBL/3d58ddef4.pdf. 350 Matter of S-A-, 22 I&N Dec. 1328. 351 U.S. Dep’t of State, Foreign Affairs Manual, Consular Affairs, Force and Arranged Marriage of Adults, 7 FAM § 1459(b)(c).

12-67

Chapter 12

After years without clear precedent, the BIA finally recognized domestic violence as a basis for asylum. In the landmark case of Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014), the BIA finally found that “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group that forms the basis of a claim for asylum. Although asylum seekers with domestic violence based claims had been successful in winning asylum protection in the past, this case officially recognized survivors of domestic violence as a particular social group. The lead respondent in Matter of A-R-C-G-. had suffered severe physical and sexual violence at the hands of her husband in Guatemala; and although she had contacted the police asking for help, she was told the police would not interfere in a marital relationship. In recognizing the particular social group stated above, the BIA reaffirmed that gender is an immutable characteristic, and it stated that marital status can also be an immutable characteristic where the individual is unable to leave the relationship. In addition, the BIA found that, in light of the country conditions evidence presented, the group had particularity and was socially distinct. The BIA remanded the case to the immigration judge to consider whether the government of Guatemala was unwilling or unable to control the abuser.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

2006), the Second Circuit found that “women who [have] been sold into marriage and who live [] in a region … where forced marriages are considered valid and enforceable” constitute a particular social group. 352 Other circuits and the BIA have yet to rule on the issue, 353 but it is likely just a matter of time before the BIA publishes a decision on the issue. In Bi Xia Qu v. Holder, 618 F.3d 602 (6th Cir. 2010), the Sixth Circuit remanded the case back to the BIA to determine whether the petitioner was targeted “because she was a woman [who could be forced] into marriage in a place where forced marriages are accepted.” 354 In cases involving forced marriages, it will be important to explain what is meant by a “forced marriage” (for example, distinguishing it from an “arranged marriage”); and to avoid circularity (defining the social group by the persecution that members fear). For guidance on complex issues involved in gender-based asylum, practitioners may reach out to the Center for Gender & Refugee Studies (CGRS) or the Tahirih Justice Center for technical assistance. E.

Sexual Orientation: LGBT Claims as a Particular Social Group 355

In Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990), the BIA recognized sexual orientation to constitute a particular social group by virtue of meeting the Acosta test of being an immutable characteristic that one cannot or should not be required to change. In that case, a Cuban man who had been systematically harassed, frequently jailed, sent to a forced labor camp, and threatened with long imprisonment because of his sexual orientation was granted withholding of removal. Because the particular social group involved in sexual orientation cases has directly been identified in precedential case law, the element of “immutability” remains the main requirement in such a case. Furthermore, at least the Third Circuit has recognized that sexual orientation can be imputed, and that an applicant’s actual sexual orientation is not relevant if homosexuality is imputed to him or her. 356 LGBT based claims can involve challenges. In the case of In re Soto Vega, No. A95-880-786 (BIA 2004), the BIA affirmed a denial of asylum by an immigration judge because, Soto Vega, a Mexican national who had been the victim of harassment and violence for being gay, did not “look gay.” Although Soto Vega was eventually granted Asylum after the Ninth Circuit remanded the case on appeal, 357 it is an example of the challenges faced by applicants filing claims based on sexual orientation and gender identity. Similarly, in Todorovic v. U.S. Att’y Gen., 621 F.3d 1318 (11th Cir. 2010), the petitioner did not appear “overtly gay” to the immigration judge, who denied the application on adverse credibility grounds. Because the BIA’s decision was possibly tainted by the stereotyping of the immigration judge, the Eleventh Circuit reviewed the credibility 352

See also Himanje v. Gonzales, 184 Fed. Appx. 105, 107 (2nd Cir. 2006) (citing Gao v. Gonzales, 440 F.3d 62, 70 (2nd Cir. 2006), vacated on procedural grounds by Keisler v. Gao, 552 U.S. 801 (2007)). 353 The BIA has ruled that an arranged marriage between adults is not considered per se persecution. Matter of A-T-, 24 I&N Dec. 296, 302 (BIA 2007), vacated on other grounds by 24 I&N Dec. 617 (A.G. 2008). 354 Bi Xia Qu, 618 F.3d at 608. 355 For more information on this area of asylum, please visit ILRC’s LGBT Immigrant Rights webpage at www.ilrc.org. Other helpful resources may also be found at the websites of organizations such as Immigration Equality, The National Center for Lesbian Rights, and the Transgender Law Center. 356 Amanfi v. Ashcroft, 328 F.3d 719 (3rd Cir. 2003). 357 Vega v. Gonzalez, 183 Fed. Appx. 627 (9th Cir. 2006).

12-68

Tab Position 1

Immigrant Legal Resource Center June 2017

finding, and vacated and remanded the decision to the BIA to make new factual findings in order to determine the nexus between the particular social group of homosexual men and the persecution that the applicant suffered. 358

Tab Position 1

In Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the Ninth Circuit reversed a BIA decision that denied asylum to a Mexican national who identified as a “gay man with a female sexual identity.” The Board found that the applicant had failed to establish “the abuse he suffered was because of his membership in a particular social group,” which the Board defined as “homosexual males who dress as females.” 359 The Board also stated the man had failed to show his decision to dress as a female was an “immutable characteristic.” In its reversal, the court held that “sexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.” The court went on to recognize that “the appropriate ‘particular social group’ is that group in Mexico made up of gay men with female sexual identities” and that Hernandez-Montiel had been persecuted on account of membership in that group.

Chapter 12

Removal Defense: Defending Immigrants in Immigration Court June 2017

Asylum claims based on sexual orientation or gender identity face many particular issues that practitioners should be aware of. These issues include: applicants that had been “in the closet” in their home country without any overt problems and who fear returning to their home country after “coming out”; applicants with either a past or current heterosexual marriage; applicants who identify as bisexual, an identity is often misunderstood by immigration officials as being a choice rather than an immutable characteristic. Exhaustive documentation of country conditions, expert witness testimony, and evidence of the fate of “similarly situated” persons will all be crucial to prevailing in this type of claim. F.

Gang-Based Claims 360

The elements of “social visibility” and “particularity” were previously the primary reasons most gang-based asylum cases based on membership in a particular social group were denied. 361 Matter of M-E-V-G and Matter of W-G-R- make clear that not all gang-based asylum claims are automatically foreclosed, and each case will have to be evaluated based on its particular facts. The courts have also been reluctant to grant asylum in gang-related cases based on one of the other protected grounds, such as political opinion or religious beliefs, though there have also been some successful claims. 1. Former gang members In the 2014 case of Matter of W-G-R-, the BIA found that a particular social group composed of former gang members failed to be sufficiently particular because “the group could include 358

See also Ali v. Mukasey, 529 F.3d 478, 492 (2nd Cir 2008) (remanding on the basis that the IJ impermissibly relied on “preconceived notions of homosexuality”). 359 Hernandez-Montiel v. INS, 225 F.3d at 1089. 360 For more information, practitioners are advised to visit the websites of organizations such as The Center for Gender and Refugee Studies, The Immigrant Law Center of Minnesota, The Capitol Area Immigrants’ Rights Coalition; and the National Center for Refugee and Immigrant Children. 361 See Ramos-Lopez v. Holder, 563 F.3d 855 (9th Cir. 2009) (finding there was “no evidence that those recruited by gangs were socially visible”); Santos-Lemus v. Mukasey, 542 F.3d 738 (9th Cir. 2008) (“young men in El Salvador resisting gang membership” failed as a particular social group because the group lacked social distinction and lacked particularity); Lizama v. Holder, 629 F.3d 440, 444 (4th Cir. 2011).

12-69

Chapter 12

persons of any age, sex, or background.” 362 According to the BIA, additional specificity would be required such as defining the group by “the duration or strength of the members’ active participation in the activity and the recency of their active participation.” 363 The BIA also found that the evidence provided failed to establish the social distinction of the group in society. This case has been highly criticized by practitioners, who have asserted that the BIA conflated the element of particularity with well-founded fear and nexus; and it illustrates the convoluted and confusing case law emerging from the BIA on this issue. The circuit courts are divided on the issue. In Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), the Seventh Circuit explicitly held that former membership in a street gang could serve as the basis for a particular social group. Relying heavily on the concept of immutability, the court stressed that former membership in a group “is a characteristic impossible to change.” 364 This concept of an immutable “former membership status” is firmly established in the Seventh Circuit. 365 Similar views have also been espoused by the Third and Sixth Circuits. 366 However, these cases were issued before Matter of M-E-V-G and Matter of W-G-R-; and practitioners should consider but not be dissuaded by this prior caselaw. 2. People refusing recruitment by gangs There is an extensive history of federal courts refusing to recognize particular social groups predicated on resistance to recruitment from a gang. 367 This is despite the concession that a past experience in refusing to join is an irreversible and immutable characteristic. 368 Regardless of the potential flaws of the logic articulated in S-E-G-, it has been almost universally accepted as a signal that groups relying on resistance to recruitment will not survive scrutiny. The overall trend is to cite S-E-G- as a blanket ban on such groups without much analysis of the underlying facts specific to each case. 369 For example, even when the Tenth Circuit found that the group “El Salvadoran women between ages of 12 and 25 who resisted gang recruitment” actually met the

362

Matter of W-G-R-, 26 I&N at 222. Matter of W-G-R-, 26 I&N at 222. 364 Benitez Ramos v. Holder, 589 F.3d 426, 429 (7th Cir. 2009). 365 Gatimi, 578 F.3d 611. See also, Sepulveda v. Gonzalez, 464 F.3d 770 (4th Cir. 2006). 366 See Lukwago v. Ashcroft, 329 F.3d 157, 178–79 (3rd Cir. 2003) (holding that former members of a guerrilla group constituted a particular social group); Urbina-Mejia v. Holder, 597 F.3d 360, 366 (6th Cir. 2010) (finding that applicant’s former membership in a gang formed the basis for a PSG). 367 See, e.g., Matter of S-E-G-, 24 I&N Dec. 579; Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012); RamosLopez v. Holder, 563 F.3d 885 (9th Cir. 2009); Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir. 2010). 368 Matter of S-E-G-, 24 I&N Dec. 579 (“[Y]outh who have been targeted for recruitment by, and resisted, criminal gangs may have a shared past experience, which, by definition, cannot be changed”); UN High Commissioner for Refugees, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, ¶ 36, (March 2010). 369 See Lisa Frydman & Neha Desai, Beacon of Hope or Failure of Protection? U.S. Treatment of Asylum Claims Based on Persecution by Organized Gangs, 12-10 Immigr. Briefings 1 (Oct. 2012); see, e.g., OrtizPuentes v. Holder, 662 F.3d 481, 483 (8th Cir. 2011) (quoting Constanza v. Holder, 647 F.3d 749, 754 (8th Cir. 2011)); Larios v. Holder, 608 F.3d 105, 109 (1st Cir. 2010). 363

12-70

Tab Position 1

Immigrant Legal Resource Center June 2017

particularity requirement, it ruled that the group failed to meet the social visibility requirement because the persecutors “do not perceive this section of the population as set apart.” 370

Attempts to incorporate other characteristics into the group’s definition (in addition to youth) have also failed to garner designation as a PSG. Specifically, the First Circuit rejected a proposed group of “young Salvadoran men who have already resisted gang recruitment and whose parents are unavailable to protect them,” 373 although some groups defined on the basis of an immutable family tie which relates to gang activity, have fared better. 374 Practitioners with asylum claims involving gang-related persecution or social groups should research the case law in their jurisdiction, as this is a developing area of law where advocates are fiercely challenging the many obstacles currently facing these claims. Furthermore, there are other issues that could become an obstacle in these cases, such as if the applicant is found to have committed violent acts as a former member of a gang. Advocates should think critically about cases that may appear to be gang-based and see what other elements are present in the client’s case that could serve as a stronger claim. The gangbased aspect may not need to be the crux of the claim. For example, advocates have had some success in cases where religion has played a role in gang’s persecution of the individual, e.g., an individual is targeted by the gang for his religion or family ties. Constructing gang-based claims 370

Rivera Barrientos v. Holder, 658 F.3d 1222, 1231-32 (10th Cir. 2011) as corrected on denial of reh’g en banc sub nom. 666 F.3d 641 (2012). At the administrative level, a group of “Salvadoran women who are viewed as property by virtue of the fact that they were successfully victimized by gang members once before,” was considered a cognizable PSG. In the Matter of Anon, Baltimore 2011. 371 Olivia-Flores v. Holder, 477 Fed. Appx. 774, 776 (2nd Cir. 2012); Santos-Lemus v. Mukasey, 542 F.3d 738, 738 (9th Cir. 2008). 372 See Cisneros-Diaz v. Holder, 415 Fed. Appx. 940 (10th Cir. 2010); see also Washington Office on Latin America (WOLA), Central American Gang-Related Asylum: A Resource Guide, May 2008. 373 Mayorga-Vidal v. Holder, 675 F.3d 9 (1st Cir. 2012). 374 Crespin-Valladares v. Holder, 632 F.3d 117, 126 (4th Cir. 2011) (reversing a finding that family members of prosecution witnesses against a gang lacked the social visibility necessary for a PSG); There has been some success at the administrative level with family-related elements. A 2010 EOIR decision from Arlington acknowledged a group of “male siblings of those murdered by gangs who resist active recruitment efforts by the same gang. In Matter of Anon, Arlington 2010. The IJ explicitly distinguished this case from S-E-G- by citing the expert testimony which stated that young, male, family members of gang targets are specifically attacked in order to reduce the chance of vengeance killings. When coupled with the small size of the applicant’s town (implying that community members know other members family structure), this testimony was held to satisfy the social visibility requirement which was failed in S-E-G-.

12-71

Chapter 12

In practice, these claims typically arise from the northern triangle in Central America and may also have insufficient evidence of nexus. Courts may perceive the persecution as reflecting “a state of general lawlessness” as opposed to targeting on account of membership in a PSG. 371 For example, in Santos-Lemus v. Mukasey, 542 F.3d 738, 738 (9th Cir. 2008), the Ninth Circuit found that a group of young Salvadorian men who resist gang recruitment were not socially visible because the “harassment” to which they were subjected was seemingly just a “part of general criminality and civil unrest.” Moreover, policies like mano dura (the anti-gang policies in the Northern Triangle) often work against applicants if courts consider the presence of these laws to be evidence that the local government is at least willing to offer protection. 372

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

as family group claims, when the gang has targeted the entire family for retribution has yielded some successes. Immigration judges have found evidence of police connection to gangs persuasive as well, for example, when a victim files a complaint with the police and that information is then given to the gang.

Chapter 12

§ 12.16 The REAL ID Act and Corroboration The REAL ID Act, which became law on May 11, 2005, contains a clause indicating that the burden of proof is on the applicant to demonstrate that she is a “refugee” as defined in 8 USC 1101(a)(42), and that one of the enumerated grounds was or will be at least “one central reason” for the applicant’s persecution. Although according to the regulations, an asylum applicant’s credible testimony alone may be enough to satisfy the burden of proof, 375 additional corroborative evidence may be needed to establish the facts of the asylum application. The REAL ID Act created new standards governing when the trier of fact may require an applicant to submit corroborating evidence: “… [w]here the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony,” such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence. 376 Thus, even if the judge finds an applicant’s testimony credible, the judge may still require the applicant to produce corroborative evidence. Example: Jean from Cameroon claims in his asylum application that he was apprehended and beaten seriously at a meeting of a political opposition group. At the first immigration court hearing on the asylum application, the immigration judge required him to provide external documentation at the next hearing. Jean requested the hospital records from his family in Cameroon, which would disclose his injuries. However, Jean’s family tells him that is too dangerous to obtain the records as they might too be targeted. Jean’s practitioner helps him draft a declaration stating that he does not have the evidence and cannot “reasonably” obtain it as his family might be persecuted in Cameroon. In this case the judge might decide that corroboration is not required as Jean’s testimony is credible, and he cannot reasonably obtain the evidence despite his efforts. Adjudicators are allowed to base an adverse credibility determination on factors such as the demeanor, candor, or responsiveness of an applicant or witness, the inherent plausibility of his or her account, and any inconsistencies or falsehoods within an applicant’s or witnesses’ current or prior statements or between those statements and other evidence in the record, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 377 NOTE: This list of factors is not exhaustive. The language of INA § 208(b)(1)(B)(iii) requires the IJ to consider the “totality of the circumstances and all relevant factors” in basing a credibility determination on any of the enumerated list of factors.

375

See 8 CFR 208.12(a). INA § 208 (b)(B)(ii). 377 INA § 208 (b)(B)(iii). 376

12-72

Tab Position 1

Immigrant Legal Resource Center June 2017

Practitioners should review all the facts in their client’s cases and list all types of corroborating evidence an adjudicator might reasonably expect. Each item should be obtained, or, if not available, build a record as to why it cannot be obtained. An attempt should be made to secure such evidence and where it is not be available, the applicant should explain in the declaration or in testimony why further evidence is not available, or why it is not reasonable for the applicant to obtain it. Documenting the unavailability of corroborating evidence is critical to overcoming the strict standards of the REAL ID Act.

Preliminary Checklist for Asylum Evidence Packet:  Proof of Applicant’s identity, such as birth certificate, passport, ID issued by a foreign government. If possible, applicants should submit multiple proofs of identification.  Declaration by the applicant that proves each requirement for asylum. The declaration will be used to check the client’s credibility through factors such as internal consistency, consistency with the applicant’s testimony, and believability. Therefore, the level of detail and accuracy of the chronology or time line of events should reflect the client’s ability to testify consistently. At a minimum, the declaration should reflect a subjective fear of persecution. Ideally, the declaration should address every element of the asylum claim, but should be written “in the client’s words.” As the applicant’s advocate, it is your job to elicit relevant facts from the client and submit a declaration that will boost the client’s credibility, and help him prove one or more elements of her asylum claim.  Country conditions evidence that has particular relevance to the applicant’s theory of the case. Practitioners should avoid submitting generalized country conditions, and instead, focus on proving that the client’s account of past persecution is credible, that her fear of return is objectively reasonable, the persecution is on account of a protected ground, and that she cannot safely and reasonably relocate within her country.  Declarations from witnesses in the United States or abroad, who can corroborate the client’s claim. Witness statements should be submitted cautiously after checking for consistency and accuracy, and practitioners should ask themselves whether the witness statement would boost the client’s claim. Statements that are suspiciously similar to each other or are conspicuously undetailed can be more hurtful to the case than helpful. Witness statements that are carelessly submitted are often the cause of denial for otherwise well-prepared asylum claims. Sometimes it is better not to submit a witness statement than to submit one that would raise doubts about the applicant’s credibility.  Direct or circumstantial evidence that would prove any part of the applicant’s claim. Practitioners should be vigilant in collecting such evidence, since the applicant is required to submit reasonably obtainable evidence. Examples of evidence are: photos, letters or e-mail exchanges, Facebook postings, telephone logs, airline, or other travel tickets. The list is endless and very case-specific.

12-73

Chapter 12

Following is a preliminary checklist of what an asylum evidence packet should contain, at a minimum.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

 Proof of efforts to obtain evidence that the applicant was unable to obtain. This will help show that the evidence in question was not reasonably obtainable. Such details can be included in the client’s declaration and/or be corroborated by documentation. Remember that asylum is extremely case-specific and each applicant’s case is unique. While some general documents may be appropriate in certain types of cases, such boilerplate documents should be supplemented by evidence that boosts the particular client’s case.

Chapter 12

§ 12.17 Credibility and Frivolous Applications A.

Credibility

An asylum applicant must be believed in order to be granted relief based on their account of feared persecution. The “credibility” determination is key to whether an applicant will be granted relief. While the adjudicator does not need to believe everything the applicant says, the courts are in agreement that the material aspects of an applicant’s claim must be credible. Case law on credibility and what conclusions the adjudicator may draw from an applicant’s demeanor and account of their claim is varied and vast. Should credibility become an issue, it is advisable to conduct specific research to bolster your arguments. Finding cases presenting similar situations can be very helpful, and the case law varies greatly circuit to circuit. 1. General principles The REAL ID Act of 2005 codified the standards for credibility determinations, and applies to applications filed after May 11, 2005. 378 Deference is given to the immigration judge’s credibility determination, because the IJ is in the best position to assess the trustworthiness of the applicant’s testimony. The BIA can only overturn an IJ’s findings regarding credibility if it finds that the IJ committed “clear error.” 379 In federal circuit courts, credibility findings will be upheld unless evidence compels a contrary result. Thus, if the IJ makes a well-founded and specific finding that an applicant is lacking in credibility, the higher courts, which cannot observe the applicant while she testifies, are unlikely to overrule the immigration judge. Nonetheless, the higher courts “do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather [they] examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.” 380 Generally, an adjudicator must offer specific reasons for finding an applicant incredible. 381 Any issue of credibility or a discrepancy should go to the heart of the asylum claim presented, and minor inconsistencies should not defeat an applicant’s claim of well-founded fear. 382 Speculation

378

REAL ID Act of 2005, Pub. L. No. 109-12, 119 Stat. 231 (2005). Cf. Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (“The primary change was that the REAL ID Act abrogated this circuit’s rule that inconsistencies that do not go to the heart of an applicant’s claim may not support an adverse credibility determination.”) 379 8 CFR § 1003.1(d)(3). 380 Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). 381 Id. 382 Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). But see Ren v. Holder, 648 F.3d at 1084 (“Under the REAL ID Act, the IJ may base an adverse credibility determination on any relevant

12-74

Tab Position 1

Immigrant Legal Resource Center June 2017

and conjecture on the part of the judge cannot form the basis of finding an applicant not credible. 383 However, even non-material discrepancies can support an adverse credibility finding. Under the REAL ID Act, the adjudicator must consider “the totality of circumstances, and all relevant factors,” and may base a decision on:

This standard is very stringent and requires that the applicant be well-prepared for intrusive questions about their claim for asylum. Each piece of evidence must be carefully scrutinized for inconsistencies. B.

Frivolousness Findings

Need intro here to frivolous application—something like: The statute provides: “If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A) [of INA § 208(d)], the alien shall be permanently ineligible for any benefits under [the INA].” 385 The permanent and absolute bar to legal immigration benefits that a frivolousness finding has on an alien makes it a point of particular importance. A frivolous application finding is much more serious than a negative credibility finding in that it bars an applicant from almost all immigration relief. Because serious consequences attach, the courts have imposed a strict definition. The Board has determined that a more appropriate term might be a finding of a “fraudulent” application, rather than the term “frivolous.” 386 As such, an adjudicator may find that an applicant is not credible without reaching the conclusion that the application is “frivolous.” An individual who knowingly makes a “frivolous” asylum application will be permanently ineligible for any immigration benefits under the INA. 387 A frivolousness

factor that, considered in light of the totality of the circumstances, can reasonably be said to have a bearing on a petitioner’s veracity.”) 383 Shah v. INS, 220 f.3d 1062, 1068 (9th Cir. 2000). 384 8 USC § 1158(b)(1)(iii). 385 INA § 208(d)(6). See also 8 CFR § 1208.20; Kalilu v. Mukasey, 548 F.3d 1215, 1217 (9th Cir. 2008) (per curiam) (“A determination that an applicant filed a frivolous asylum application renders the applicant permanently ineligible for immigration relief”). 386 Matter of Y-L-, 24 I&N Dec. 151, 155 n.1 (BIA 2007). 387 INA § 208(d)(6).

12-75

Chapter 12

The demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. 384

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

finding does not, however, preclude an applicant from being granted withholding of removal or protection under the Convention Against Torture, which are mandatory forms of relief. 388 Many courts have noted that because of the serious consequences of a frivolousness determination, a frivolousness finding does not automatically result from an adverse credibility determination. 389 Although the two require separate determinations, an immigration judge may incorporate by reference any factual findings made in support of an adverse credibility determination when making a frivolousness determination, and need not separate and repeat the factual findings that overlap between the two determinations. 390 Because of the severe consequences of a frivolousness finding, courts have specified particular criteria that must be met in order for a judge to be able to make a frivolousness finding. 1. Frivolousness defined The regulations define a frivolous asylum application as one where “any of [the application’s] material elements is deliberately fabricated.” 391 Citing to Black’s Law Dictionary, the BIA has stated that an element is “fabricated” when it misrepresents the truth, and that a “deliberate” fabrication involves a knowing and intentional misrepresentation of the truth. 392 Thus an applicant has knowingly filed a frivolous application when she knowingly and intentionally misrepresented the truth regarding a material element of her asylum application. The BIA has noted that the use of the term “frivolous” is something of a misnomer, as the definition of “frivolous” under 8 CFR § 1208.20 does not match the general definition of “frivolousness,” where the term means “insignificant” or “trivial.” 393 The BIA has said that the term “fraudulent” might be a more appropriate term than “frivolous.” 394 The obvious legal insufficiency of a claim does not support a frivolousness finding for asylum purposes. 395 2. Distinguishing adverse credibility and frivolousness Finding that an application was frivolous is a separate and more serious determination than finding that an asylum applicant lacked credibility and therefore could not qualify for asylum. There are several substantive differences between an adverse credibility determination and a frivolousness determination. First, a frivolousness determination requires a higher degree of knowledge of the misrepresentation. An application can be deemed frivolous only if it contains deliberate

388

8 CFR § 1208.20. Note that protection under the Convention Against Torture is not a “benefit” under the Immigration and Nationality Act, but a mandatory protection. 389 See, e.g., Yan Liu v. Holder, 640 F.3d 918, 925 (9th Cir. 2011) (“The heightened substantive and procedural requirements for a frivolousness finding make [a frivolousness] inquiry distinct”). 390 Matter of B-Y-, 25 I&N Dec. 236, 239-40 (BIA 2010). 391 8 CFR § 1208.20. 392 Matter of Y-L-, 24 I&N Dec. at 155. 393 Id. at 155 n.1 (citing Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1339 n. 11 (11th Cir. 2001). 394 Id. 395 Matter of Y-L-, 24 I&N Dec. at 155 n.1 (citing Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1318 (11th Cir. 2006)).

12-76

Tab Position 1

Immigrant Legal Resource Center June 2017

fabrication, meaning that the applicant perpetrated a fraud on the court. 396 In contrast, an “omission, inconsistency, or discrepancy” may support an adverse credibility determination. 397 Second, a frivolousness finding requires that a “material element” of the claim was fabricated. An adverse credibility determination, on the other hand, can be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim. 398 For example, in Yan Liu v. Holder, the Ninth Circuit ruled that a date discrepancy relating to the applicant’s uncle’s arrest was not itself a material element of the asylum claim, and thus could not support a frivolousness finding, even though it could be used to support an adverse credibility finding. 399

Third, the government has the burden to prove that an applicant has filed a frivolous asylum application. 403 In removal proceedings generally, the applicant for relief from removal has the burden of proving that she meets all of the requirements for eligibility for the relief. 404 This means that the asylum applicant has the burden to prove that she is credible and that she merits asylum. Nevertheless, the government bears the initial burden in proving that the applicant has filed a frivolous application. Finally, a frivolousness finding requires a higher evidentiary showing than an adverse credibility finding. Because of the severe consequences of a frivolousness finding (permanent ineligibility for future relief under the Immigration and Nationality Act), frivolousness must be proved by a preponderance of the evidence, while adverse credibility only needs to be supported by substantial evidence. 405 396

Yan Liu v. Holder, 640 F.3d at 927 (9th Cir. 2011) (citing Matter of Y-L-, 24 I&N Dec. at 155 n.1 [explaining that the term “fraudulent” may be more appropriate than the term “frivolous”]). 397 Yan Liu, 640 F.3d at 927 (citing Khadka, 618 F.3d at 1002). 398 Id. at 927. 399 Id. at 930. 400 Khadka v. Holder, 618 F.3d 996, 1004 (9th Cir. 2010) (comparing Black’s Law Dictionary’s definitions of material evidence [evidence “having some logical connection with the facts of consequences or the issues”] and element [a “constituent part of a claim that must be proved for the claim to succeed”]). 401 Khadka, 618 F.3d at 1004. 402 Id. at 1001, 1004. 403 Yan Liu, 640 F.3d at 927. 404 8 CFR § 1240.8(d). 405 Yan Liu, 640 F.3d at 927.

12-77

Chapter 12

Fabrication of material evidence does not necessarily constitute fabrication of a material element of an asylum claim, which is required by the regulations in order for an application to be frivolous. 400 For example, in Khadka v. Holder, the Ninth Circuit indicated that the submission of one fictitious newspaper article among many other pieces of evidence that supported the immigrant’s asylum claim was likely insufficient to support a frivolousness finding. 401 Although the newspaper article was material evidence, in the face of the other substantial evidence submitted to support the same aspect of the asylum claim, submission of the newspaper article alone did mean that the applicant had fabricated a material element of his asylum claim. Even though the submission of the fictitious newspaper article warranted denial of the asylum application on adverse credibility grounds, it was not necessarily sufficient to uphold a frivolousness finding. 402

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

3. Procedural requirements for frivolousness findings The Board of Immigration Appeals has set forth four procedural requirements 406 that must be met before a judge can make a frivolousness finding:

Chapter 12

1. Notice. At the time of filing, the immigrant must have received notice of the consequences of knowingly filing a frivolous asylum application. 407 The asylum application, Form I-589, contains warnings that knowingly making a frivolous asylum application will permanently bar the applicant from relief under the Immigration and Nationality Act. 408 In the Ninth and Tenth Circuit, the written notice on the asylum form is sufficient to satisfy this requirement as a matter of law. 409 Although the BIA has stated that it is a “good practice” for the immigration judge to inform the asylum applicant during the course of proceedings that he is considering making a frivolousness finding, such additional warnings are not required. According to the BIA, the warning of the consequences of filing a frivolous application provided by the immigration judge either at the time the asylum application is filed or before the merits hearing begins is sufficient notice. 410 Although this warning is required before a frivolousness determination can be made, the existence of this requirement does not mean that an immigrant can avoid a frivolousness finding by withdrawing her application after receiving the warning. The BIA has held that an immigration judge can still find that an immigrant knowingly filed a frivolous asylum application even if the immigrant withdrew the application after filing and the judge never reached a final decision on the merits of the asylum application. 411 This ruling was based on the text of the regulations, which specifies that an immigrant is barred from relief under the INA if she simply files a frivolous application. 412 2. Specific Finding. The immigration judge or the BIA must make a specific finding in a final order that the immigrant knowingly filed a frivolous asylum application. 413 It is not enough for the court to simply make an adverse credibility finding. This requirement is satisfied if an immigration judge makes a specific finding that an asylum applicant 406

See Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007); Matter of B-Y-, 25 I&N Dec. 236, 238 (BIA 2010). INA §§ 208(d)(6), 208(d)(4). 408 Form I-589 includes a warning that states, “Applicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act. You may not avoid a frivolous finding simply because someone advised you to provide false information in your application.” 409 Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012); Ribas v. Mukasey, 545 F.3d 922, 930 (10th Cir. 2008). 410 Matter of B-Y-, 25 I&N Dec. 236, 242 (BIA 2010). 411 Matter of X-M-C-, 25 I&N Dec. 322, 327 (BIA 2010). See also Lazar v. Gonzales, 500 F.3d 469, 476 (6th Cir. 2007) (if an alien could moot a frivolousness finding by withdrawing his asylum application, “every petitioner seeking relief under the INA would have an incentive to lie in their submissions because there would be no penalties for doing so”); Chen v. Mukasey, 527 F.3d 935, 943 (9th Cir. 2008); BarretoClaro v. U.S. Att’y Gen., 275 F.3d 1334 (11th Cir. 2001); Pavlov v. Holder, 697 F.3d 616, 618 (7th Cir. 2012). 412 8 CFR § 1208.20. 413 Id. 407

12-78

Tab Position 1

Immigrant Legal Resource Center June 2017

“deliberately fabricated a material element of his asylum claim.” 414 An immigration judge should separately analyze an asylum applicant’s explanations for inconsistencies or discrepancies in the context of how they relate to the materiality and deliberateness requirements unique to the frivolous determination. 415 This means that although a judge can incorporate by reference factual findings made in support of an adverse credibility when making a frivolousness finding, the bases for a frivolousness determination “should preferably be addressed under a section of the decision separate and apart from the credibility determination.” 416

4. Opportunity to Explain Discrepancies. A frivolousness finding can only be made if the applicant has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim. 418 This requires that an immigrant be given “ample opportunity during his hearing to address and account for any deliberate, material fabrications upon which the IJ may base a finding of frivolousness.” 419 The BIA has stated that it is a “good practice” for an immigration judge to bring to the attention of the immigrant that he is considering making a frivolousness finding to allow the immigrant a further opportunity to address and account for those discrepancies, but an immigration judge is not required to do so. This requirement that an applicant have an opportunity to explain requires that an immigration judge not rely on inconsistencies that take an applicant by surprise. 420 However, “[w]hen the required frivolousness warnings have been given to the respondent prior to the start of a merits hearing, the immigration judge is not required to afford additional warnings to seek further explanation in regard to inconsistencies that have become obvious to the respondent during the course of the hearing.” 421 When determining whether this requirement is met, a totality of the circumstances will be considered. FOR MORE INFORMATION ON THIS SUBJECT, see: Essentials of Asylum Law, an ILRC publication (www.ilrc.org/publications)

414

Matter of Y-L-, 24 I&N Dec. at 156. Matter of B-Y-, 25 I&N Dec. at 240. 416 Id. at 241. 417 Matter of Y-L-, 24 I&N Dec. at 158. 418 8 CFR § 1208.20. 419 Matter of Y-L-, 24 I&N Dec. at 159 (quoting Mingkid v. U.S. Att’y Gen., 468 F.3d 763, 769 (11th Cir. 2006)). 420 Matter of B-Y-, 25 I&N Dec. at 242 (finding that the requirement that an IJ not rely on inconsistencies that take a respondent by surprise applies to both adverse credibility and frivolousness determinations). 421 Matter of B-Y-, 25 I&N Dec. at 242. 415

12-79

Chapter 12

3. Sufficient Evidence. There must be sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated. Because of the severe consequences that result from a frivolousness finding, the immigration judge “must provide cogent and convincing reasons for finding by a preponderance of the evidence that an asylum applicant knowingly and deliberately fabricated material elements of the claim.” 417

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Chapter 12

Tab Position 1

=

CHAPTER 13 MOTIONS TO REOPEN

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

This chapter includes: § 13.1 § 13.2 § 13.3 § 13.4 § 13.5 § 13.6 § 13.7 § 13.8 § 13.9 § 13.10 § 13.11

§ 13.1 Introduction to Motions to Reopen A motion to reopen is a request to the Executive Office for Immigration Review (“EOIR,” which consists of the immigration courts and the Board of Immigration Appeals) or the Administrative Appeals Office (“AAO”) to rethink a decision because of new information that wasn’t available before. Where a noncitizen is challenging a decision by United States Citizenship and Immigration Services (USCIS), an appeal to the AAO may be available. 8 CFR § 103.5. This chapter does not cover the procedures involved in filing a motion to reopen with the AAU. Instead, we will focus on motions to reopen cases before the immigration judge. In immigration practice, a motion to reopen is frequently used to apply for relief that one did not earlier qualify for or for raising new “equities,” such as marriage to a U.S. citizen or a child born in the U.S. Additionally, in cases where someone was ordered removed in absentia, a motion to reopen is a way to get the case back in front of the judge for a hearing. A motion to reopen can also be used to reopen a case where a prior attorney did not present all the facts or made a mistake. Restrictive rules regarding motions to reopen and reconsider have been in place in the regulations and the Immigration and Nationality Act since 1996. See INA § 240(c)(5) and (c)(6). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, § 304 (Sept. 30, 1996), made motions to reopen statutory, rather than purely regulatory. The rules for MTRs vary depending on whether the respondent was in removal

13-1

Chapter 13

§ 13.12 § 13.13 § 13.14

Introduction to Motions to Reopen .................................................................. 13-1 Comparing Motions to Reopen, Remand, and Reconsider .............................. 13-2 General Requirements for Reopening Removal Proceedings .......................... 13-2 Exceptions to Time and Numerical Limitations ............................................... 13-3 Where to File the Motion ................................................................................. 13-5 Effect of Departure from the United States ...................................................... 13-5 Proving That the New Evidence Is Material and Was Previously Unavailable..................................................................................... 13-6 Exceptions Where Changed Circumstances Give Rise to Eligibility for Asylum ............................................................................................................. 13-7 Motions to Reopen Involving Prior Ineffective Assistance of Counsel ........... 13-8 Overview of MTRs Challenging In Absentia Removal Orders ...................... 13-18 Reopening In Absentia Removal Orders Based on Exceptional Circumstances ............................................................................ 13-19 Reopening In Absentia Removal Orders Based on Lack of Notice ............... 13-21 Joint and Sua Sponte Motions to Reopen ....................................................... 13-26 Discretionary Factors Relevant to Motions to Reopen................................... 13-30

proceedings commenced on or after April 1, 1997, or deportation/exclusion proceedings, commenced pre-IIRAIRA. Additionally, it is important to check the law in the circuit where the motion will be filed—there might be rules decided by case law that impact your motion. For individuals in removal proceedings, motions to reopen are governed by INA § 240(c)(7) and (6) (formerly codified at INA § 240(c)(6) and (5)). For deportation cases pending before the April 1, 1997, the effective date of IIRIRA, motions to reopen are governed by 8 CFR §§ 1003.2(c) and 1003.23(b) (formerly codified at 8 CFR §§ 3.2 and 3.23). An MTR is based on factual grounds, and seeks a fresh determination based on newly discovered facts or a change in the applicant’s circumstances since the time of his last hearing in immigration court. INA § 240(c)(7)(B); 8 CFR § 1003.2(c). Whether to grant an MTR is ultimately discretionary (potentially with the exception of MTRs of in absentia orders that are based on lack of notice or the respondent being in federal or state custody). § 13.2 Comparing Motions to Reopen, Remand, and Reconsider

Chapter 13

An MTR is appropriate where material and previously unavailable evidence arises after the final order of removal entered by the IJ or BIA. 1 If granted, an MTR reopens the respondent’s proceedings for all purposes, unless explicitly limited in its scope. Therefore, a respondent whose proceedings have been reopened is not limited to presenting the claim on which the MTR was based. This leaves open the respondent’s ability to contest removability or apply for additional forms of relief, once proceedings are reopened. If removal proceedings are still pending, an MTR is not appropriate. A motion for remand is a motion made to the BIA before it has issued its decision. For example, if your client becomes eligible for adjustment of status while her BIA appeal is pending, and you want the case sent back to the immigration court for an adjustment hearing, you file a motion for remand. This is similar to a motion to reopen, except that since there is no final BIA decision in the case, you don’t need to reopen it; instead you ask to send it back (remand it) to the IJ to consider new evidence. There is no fee for filing a motion for remand and it is not subject to the time and numerical bars applicable to motions to reopen, as discussed below. If proceedings are still pending before an IJ when the new facts arise, practitioners should make every effort to introduce the new evidence while proceedings are pending before the IJ. This eliminates the need for a motion to reopen or remand. By contrast, motions to reconsider are based on mistakes of law or fact committed by the IJ or BIA. They argue that based on the existing factual record, the adjudicator made a mistake in the decision. A motion to reconsider is not a way to submit new evidence. § 13.3 General Requirements for Reopening Removal Proceedings The rules for motions to reopen in removal proceedings generally limit a person to one motion to reopen per case, which must be filed within 90 days of a final administrative decision. INA 1

If no appeal is filed with the Board, the IJ decision is the final administrative decision. In cases where an appeal is filed, the Board’s decision is the final agency decision.

13-2

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 240(c)(6); 8 CFR § 1003.2(c)(2). There are some exceptions to the rule that one can only file one motion to reopen in removal proceedings. With specific exceptions discussed below, a motion to reopen must meet the following requirements.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Filed within 90 days of the date of entry of a final administrative order of removal; 2. Be the first motion to reopen filed by the respondent; and 3. State material and previously unavailable facts, supported by affidavits and other evidentiary material, including new applications for relief, if applicable. INA § 240(c)(7)(B); 8 CFR § 1003.2(c). Even when these requirements are met, the decision whether to grant an MTR is discretionary. 2 § 13.4 Exceptions to Time and Numerical Limitations By statute, respondents can file only one motion to reopen, which must be filed within 90 days of the final administrative order of removal. The statute and regulations specify the following exceptions. Each exception is discussed below in detail in the subsequent sections. MTR filed based on eligibility for asylum or withholding of removal based on changed country conditions, where evidence (1) is material; and (2) was not available and could not have been discovered or presented at proceedings before IJ. Such a motion can be filed at any time and the numerical limit does not apply. 3 For a more detailed discussion of motions to reopen based on changed country conditions, see § 13.8, below.

•

MTR of in absentia removal or deportation order may be filed at any time if based on lack of notice or alien being in federal or state custody and failing to appear through no fault of his own. 4 The numerical bar does not apply to deportation cases, but does apply to removal cases. 5 For a more detailed discussion regarding motions to reopen in absentia removal and deportation orders, see § 13.10, below.

•

MTR of in absentia removal or deportation order must be filed within 180 days of the order if the respondent’s failure to appear was due to “exceptional circumstances.” 6 This

2

Matter of S-Y-G-, 24 I&N Dec. 247, 252 (BIA 2007). INA § 240(c)(7)(C)(ii); 8 CFR § 1003.2(c)(3)(ii), § 1003.23(b)(4)(i). 4 INA§ 240(b)(5)(C); 8 CFR § 1003.2(c)(3), § 1003.23(b)(4)(ii), (iii)(A). 5 §§ 1003.23(b)(4)(ii), (iii). In spite of the regulation’s language that the numerical limit applies to motions to reopen in absentia removal orders, practitioners should examine in cases where prior MTRs have been filed by the respondent, whether those first MTRs were not subject to the numerical bar (for example based on asylum or VAWA eligibility, or equitable tolling). Joshi v. Ashcroft, 389 F.3d 732, 734–35 (7th Cir. 2004). Additionally, where the numerical bar does apply to an MTR of an in absentia removal order, practitioners should determine whether there are other bases for reopening that would not be subject to the numerical bar. The Board has held that an in absentia removal order need not be rescinded before the proceedings can be reopened on other grounds, such as prima facie eligibility for asylum. Matter of J-G-, 26 I&N Dec. 161 (BIA 2013). 6 The term “exceptional circumstances” refers to “battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of 3

13-3

Chapter 13

•

Chapter 13

type of motion must be filed within 180 days of the order. 7 The numerical bar does not apply. 8 For a more detailed discussion regarding motions to reopen in absentia removal and deportation orders, see § 13.10, below. •

MTR for battered spouses, children, and parents seeking relief as a self-petitioner or through VAWA cancellation of removal must be filed within one year of the final order of removal, as long as the applicant is physically present in the U.S. 9 The one-year time limit may be waived in cases of extraordinary circumstances or extreme hardship to the non-citizen’s child. The numerical bar does not apply. 10

•

Jointly filed MTR by the respondent and DHS. There are no time or number limits. 11

•

Sua sponte MTR, meaning the IJ or BIA may reopen on their own motion. There are no time or numerical limits. 12

•

MTR of in absentia exclusion order based on a showing of “reasonable cause” for failure to appear. There are no time or number limits. 13

Where a motion to reopen is filed outside of the 90-day deadline, you must identify one or more of the above exceptions that apply to your MTR. Practitioners can also argue under the doctrine of equitable tolling that an MTR is timely, despite being filed beyond the 90-day timeframe. This is often the argument made in cases where you are arguing that the prior attorney’s error resulted in the delay. See § 13.9, below. Exception in Cases of Asylum Fraud. Note that DHS may file an MTR in removal proceedings at any time, without a numerical limitation, where it is seeking to reopen deportation or exclusion proceedings in cases of asylum fraud. 14 However, it must still prove that the evidence of fraud is material and was previously unavailable. PRACTICE TIP: The various grounds for reopening can be combined to argue multiple or alternate theories for reopening. Practitioners should argue as many grounds for reopening as possible. For example, a client who has an old in absentia order of removal because she did not receive her NTA, but is now eligible for asylum due to changed circumstances, should clearly articulate at least three arguments for reopening: (1) that failure to receive the NTA resulted in the in absentia order; (2) material and previously unavailable changed circumstances have arisen, the alien, but not including less compelling circumstances [] beyond the control of the alien.” INA § 240(e)(1). 7 INA§ 240(b)(5)(C); 8 CFR § 1003.2(c)(3), § 1003.23(b)(4)(ii) (removal), (iii)(A) (deportation). 8 8 CFR § 1003.2(c)(3)(i); § 1003.23(b)(4)(iii)(A), (D). Additionally, if an in absentia deportation order was entered before June 13, 1992, the time and numerical limitations do not apply. Matter of Cruz-Garcia, 22 I&N Dec. 1155 (BIA 1999). 9 INA § 240(c)(7)(C)(iv). 10 INA § 240(c)(7)(A). 11 CFR § 1003.2(c)(3)(iii); § 1003.23(b)(4)(iv). 12 8 CFR § 1003.23(b)(1); § 1003.2(a). 13 8 CFR § 1003.23(b)(4)(iii)(B). 14 8 CFR 1003.2(c)(3).

13-4

Tab Position 1

Immigrant Legal Resource Center June 2017

making the client eligible for asylum and withholding of removal; and (3) the client is deserving of the IJ’s exercise of his sua sponte authority to reopen proceedings.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 13.5 Where to File the Motion A.

File MTR with Court That Last Entered Removal Order

An MTR must be filed with the immigration court or BIA, depending on which one last issued the order of removal. 15 So if a client failed to appeal an IJ’s removal order to the BIA, the MTR should be filed with the IJ. If the client or DHS appealed the IJ’s decision and the BIA entered an order of removal, the MTR should be filed with the BIA. 16 B.

Challenges to In Absentia Orders Always Filed with IJ

Under the statute, an in absentia removal order can only be rescinded by an IJ, not the BIA. INA § 240(b)(5)(C). The BIA does not have authority to rescind an in absentia removal order, but does consider an appeal of the IJ’s decision on the MTR. Therefore, an MTR seeking to reopen proceedings where an in absentia order is in place, must be filed with the immigration court that entered the order. 17 § 13.6 Effect of Departure from the United States

A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion. 8 CFR § 1003.2(d). See also 8 CFR § 1003.23(b)(1). The BIA has long held that the departure bar is a limitation on its jurisdiction. 18 In 2009, however, the BIA held that that immigration judges have jurisdiction to review motions filed by individuals outside the United States where the MTR is based on an in absentia order that resulted from lack of notice. 19 Specifically, it held that the departure bar does not preclude an

15

8 CFR §§ 1003.2, 1003.23. If an MTR is filed with the BIA while an appeal is still pending, the BIA will construe the MTR as a motion to remand. While a motion to remand is not subject to the time and numerical limitations applicable to MTRs, it must meet the evidentiary requirements of proving that the evidence is material and was previously unavailable. Matter of L-A-C-, 26 I&N Dec. 516 (BIA 2015); Matter of Coelho, 20 I&N Dec. 464 (BIA 1992). 17 Matter of Guzman, 22 I&N Dec. 722 (BIA 1999). 18 See Matter of G-B-, 6 I&N Dec. 159 (BIA 1954); Matter of Armendarez, 24 I&N Dec. 646 (BIA 2008). 19 Matter of Bulnes, 25 I&N Dec. 57, 58-60 (BIA 2009). 16

13-5

Chapter 13

The regulations bar individuals who have departed the United States from filing or pursing an MTR. Specifically, the regulations provide:

immigration judge from adjudicating a motion to reopen an in absentia order based on lack of notice. Ten out of eleven circuit courts have found that the departure bar is unlawful, where it is applied to a statutory motion to reopen under INA §§ 240(c)(6) or (7) (not sua sponte motions). 20 The Eighth Circuit has not yet considered the issue as of this writing, although it has noted that the BIA did not invoke the departure bar in a case involving an MTR filed by an individual who had been deported. 21 Although some practitioners have succeeded in reopening their clients’ proceedings after departure, the practical process of getting their clients back into the United States has been difficult. This is largely due to the lack of DHS policies or procedures for respondents’ return, either after succeeding in their motions to reopen or petitions for review. Currently, practitioners need to be persistent with ICE and closely involved in their clients’ return to the United States, as DHS policies and procedures are still not clear or uniformly applied. 22 § 13.7 Proving That the New Evidence Is Material and Was Previously Unavailable

Chapter 13

A.

BIA Applies “Heavy Burden”

The BIA has held that a party seeking reopening of proceedings bears a “heavy burden” of demonstrating that if his motion to reopen were granted, the new evidence would change the outcome of the case. 23

20

While there is no published decision regarding the legal validity of filing a sua sponte MTR after removal has occurred, the plain language of the regulations strongly support that argument. The regulations bars a motion to reopen “made by or on behalf of a person who is the subject of exclusion, deportation or removal proceedings subsequent to his or her departure from the United States.” 8 CFR § 1003.23(b). However, this limitation does not apply, based upon the regulation’s plain language, to an immigration judge’s or BIA’s independent sua sponte authority to reopen/reconsider cases. Arguably, an immigration judge or the BIA acts “on his or her own motion” and not “on behalf” of a noncitizen. Matter of L-V-K-, 22 I&N Dec. 976 (BIA 1999) (discussing sua sponte authority to reopen on BIA’s own motion as distinct from adjudication of a noncitizen’s motion). 21 Gomez-Gutierrez v. Lynch, 811 F.3d 1053 (8th Cir. 2016); see also Ortega-Marroquin v. Holder, 640 F.3d 814 (8th Cir. 2011) (remanding for the BIA to consider the validity of the departure bar). 22 Although DHS has claimed to have a policy on returns, no such policy has historically existed. In 2012, ICE introduced the ICE Public Advocate, who was to serve as the contact for coordinating returns. However, the following year, Congress defunded the position and ICE announced that ICE’s Enforcement and Removal Operations would coordinate returns of deportees. Without a specific procedure, the process remains unclear and cumbersome. For more background information on ICE’s return policies and advice on current successful practices, see the practice advisory at: www.nationalimmigrationproject.org/PDFs/practit ioners/practice_advisories/fed/2015_27Apr_return-advisory.pdf (“Return to the United States After Prevailing on a Petition for Review or Motion to Reopen or Reconsider,” Nat’l Immig. Project of Nat’l Lawyers Guild, Immigration Rights Clinic at NYU, and American Immigration Council (Apr. 27, 2015)). 23 Matter of Coelho, 20 I&N Dec. 464, 472-73 (BIA 1992).

13-6

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Reasonable Likelihood Standard for Asylum-Based MTRs

In the context of MTRs based on eligibility for asylum, the BIA has stated that it will reopen proceedings if the non-citizen demonstrates materially changed circumstances in his or her homeland or place of last habitual residence, such that the record demonstrates a reasonable likelihood of success on the merits of the application. 24 Practitioners should exercise a commonsense approach and be prepared to specifically prove that the new evidence presented with the MTR is material and was previously unavailable.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

§ 13.8 Exceptions Where Changed Circumstances Give Rise to Eligibility for Asylum When a motion to reopen is based on a request for asylum or withholding of removal (under the INA or CAT), and it is premised on new circumstances, the motion must contain: A complete description of the new facts that comprise those circumstances;

•

A description of how those circumstances affect the party’s eligibility for relief;

•

Evidence that country conditions have materially worsened such that the respondent is newly eligible for asylum and withholding of removal. That is, he was not eligible at the time of his removal proceedings. Evidence of changed country conditions includes background country conditions evidence demonstrating the worsening of conditions and expert or personal affidavits detailing the changed circumstances; and

•

Compelling evidence that the respondent is deserving of a positive exercise of discretion.

See 8 CFR §§ 1003.23(b)(3), (b)(4)(i); Immigration Court Practice Manual, Chapter 5.7 (e)(i) (April 13, 2017). It is important to remember that changed personal circumstances do not qualify for the purposes of a late-filed motion to reopen, but they may be considered in conjunction with changed country conditions. 25 The Board has stated that where an MTR is based on changed country conditions, it would “compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.” 26 Therefore, practitioners should focus on presenting

24

Matter of A-N- & R-M-N-, 22 I&N Dec. 953, 955-56 (BIA 1999). See Matter of C-C-, 23 I&N Dec. 899 (BIA 2006) (MTR denied where it was based on birth of second child, which caused fear of forced sterilization, because no change in country conditions showed an increased risk to the respondent due to birth of the second child). However, in Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014), the court held that the “BIA committed legal error insofar as it determined that [petitioner]’s post-removal conversion to Christianity rendered him ineligible to file an untimely motion under the changed conditions exception.” The court explained that the regulations do not prohibit “a motion to reopen based on evidence of changed country conditions that are relevant in light of the petitioner’s changed circumstances.” Id. at 1037. 26 Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007). 25

13-7

Chapter 13

•

arguments and evidence demonstrating a significant change in country conditions, which demonstrates a reasonable likelihood of success on the merits of the application. 27

Chapter 13

Example: Sara is a 35-year old woman from Guatemala, who fled to the United States in 2013 after suffering domestic violence at the hands of her husband. Sara was placed in removal proceedings for being present in the U.S. without inspection. She applied for asylum as relief from removal and in 2015, the immigration judge denied Sara’s asylum application on grounds that her fear of her husband was speculative since he was unlikely to locate her in Guatemala. Sara timely filed an appeal to the BIA, which dismissed her appeal in January 2017. Sara comes to your office in June 2017, expressing increased fear of her husband, who has just been appointed the mayor of their town in Guatemala. She knows that as the mayor, he will wield his power to not only locate her, but also to persecute her. Also, Sara now has children with another man she currently lives with and knows that her husband will pursue her more vehemently because he believes that as his property, she does not have the right to be with another man. You determine that Sara is prima facie eligible for asylum based on the information she has provided you. She could present a strong claim for reopening her removal proceedings and reconsideration of her asylum application, based on her husband’s appointment as mayor. She could argue that it constitutes a “changed circumstance” in the country she fears persecution. Country conditions evidence that highlights a worsening of conditions for people like Sara, since her 2015 hearing before the IJ, would also strongly support her MTR. § 13.9 Motions to Reopen Involving Prior Ineffective Assistance of Counsel A.

Matter of Lozada Requirements

In 1988, the BIA published its decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), in which it established a procedural and substantive framework for MTRs based on ineffective assistance of counsel (IAC). It recognized that IAC that occurs during deportation proceedings may violate a respondent’s due process right to a fundamentally fair hearing, thus giving rise to a basis for reopening the proceedings. Matter of Lozada standards remain in effect and are binding on immigration courts and the BIA when adjudicating motions to reopen or remand based on ineffective assistance of counsel. 28 27

Matter of A-N- & R-M-N-, 22 I&N Dec. 953, 955-56 (BIA 1999). For a brief period of time, in 2009, the validity of Lozada was uncertain after the Attorney General overruled it in Matter of Compean, 24 I&N Dec. 710 (A.G. 2009) (“Matter of Compean I”). Within six months, however, the Attorney General vacated Matter of Compean I and restored the Lozada standards. Matter of Compean, 25 I&N Dec. 1 (A.G. 2009) (“Matter of Compean II”). Additionally, in Matter of Compean II, the Attorney General directed EOIR to initiate a rulemaking process to evaluate Lozada and amend the framework if necessary. Id. at 2. On July 28, 2016, the Department of Justice published proposed amendments to EOIR regulations, codifying Matter of Lozada requirements in part, and also adding that exemptions can be made on a discretionary basis by EOIR, and that equitable tolling may be allowed in certain circumstances. 81 Fed. Reg. 145 (Jul. 28, 2016). The public comment period ended September 26, 2016 and publication of a final rule remains pending as of June 2017. 28

13-8

Tab Position 1

Immigrant Legal Resource Center June 2017

1. Procedural requirements under Matter of Lozada The procedural requirements for motions to reopen that are based on ineffective assistance of counsel are in addition to the general requirements provided for by statute and regulations, as outlined above. See § 13.3, above. The procedural requirements under Matter of Lozada are:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. An affidavit by the respondent attesting to the relevant facts, including a statement of the agreement between the respondent and the attorney regarding the respondent’s representation. 2. Proof that the respondent informed counsel of the allegations and gave counsel an opportunity to respond. Any response from counsel should be included with the motion or if received after the motion is filed, should be filed as a supplement to the motion if it remains pending. 3. The motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not. The Board has stated that these procedures are “necessary to provide a basis for evaluating the many claims presented, to deter baseless allegations, and to notify attorneys of the standards for representing aliens in immigration proceedings. Matter of Assaad, 23 I&N Dec. 553, 556 (BIA 2003).

2. Substantive requirements under Matter of Lozada A motion to reopen based on ineffective assistance of counsel must generally establish: 1. Counsel’s performance was ineffective such that respondent was prevented from reasonably presenting his case. 2. Counsel’s performance caused prejudice to the respondent. Matter of Lozada, 19 I&N Dec. at 638. a. Ineffectiveness Ineffective or deficient performance by counsel is established by showing that “competent counsel would have acted otherwise.” 29 However, “subsequent dissatisfaction with a strategic decision of counsel is not grounds to reopen.” Matter of B-B-, 22 I&N Dec. 309, 310 (BIA 1998). Some examples of ineffective assistance of counsel are:

29

Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004); see also Fadiga v. Att’y Gen., 488 F.3d 142, 157 (3rd Cir. 2007); Rabiu v. INS, 41 F.3d 879, 882 (2nd Cir. 1994); Paul v. INS, 521 F.2d 194, 199 (5th Cir. 1975).

13-9

Chapter 13

The procedural requirements as established by Matter of Lozada are rarely exempted and are generally stringently applied. Therefore, practitioners should strictly comply with the requirements to the maximum extent it is possible.

• • • • • • •

Failure to properly advise a client regarding a hearing date or advising a client not to attend a scheduled hearing in immigration court. 30 Failure to submit relevant or sufficient evidence. 31 Failure to pursue a form of relief that a client is prima facie eligible for. 32 Admissions on behalf of a client or waiving the right to appeal, without any apparent tactical advantage. 33 Failure to file a timely Notice of Appeal or appeal brief. 34 Pressuring a client to accept voluntary departure under threat of counsel’s withdrawal. 35 Failure to take action to ensure client remained eligible for relief. 36

Chapter 13

It is important to keep in mind that these are merely examples of ineffective assistance of counsel and do not constitute a comprehensive list of what can constitute ineffective assistance. Practitioners should be aware that the inquiry is extremely fact-specific and the scope of what constitutes ineffective assistance can vary depending on which circuit the proceedings are/were pending. Ineffective assistance of counsel claims can arise from counsel’s performance occurring during removal proceedings and even after entry of a final order of removal, particularly counsel’s failure to preserve a client’s ability to appeal. However, ineffective assistance claims arising from counsel’s conduct that occurred before commencement of proceedings, may not be a legitimate basis of a motion to reopen, unless there is some connection between the ineffective assistance and the fairness of the removal proceedings. 37 A number of courts will not recognize that ineffective assistance of counsel is a due process violation where a prior representative’s deficient performance only impacted a noncitizen’s

30

Aris v. Musakey, 517 F.3d 595, 599-601 (2nd Cir. 2008); Galvez-Vergara v. Gonzales, 484 F.3d 798, 801-03 (5th Cir. 2007); Fong Yang Lo v. Ashcroft, 341 F.3d 934 (9th Cir. 2003); Matter of Grijalva, 21 I&N Dec. 472, 473-74 (BIA 1996). 31 Habib v. Lynch, 787 F.3d 826, 832 (7th Cir. 2015); Morales Apolinar v. Mukasey, 514 F.3d 893, 898 (9th Cir. 2008); N’Diom v. Gonzales, 442 F.3d 494, 496, 499 (6th Cir. 2006); Kay v. Ashcroft, 387 F.3d 664, 676 (7th Cir. 2004). 32 Correa-Rivera v. Holder, 706 F.3d 1128, 1133 (9th Cir. 2013); Sanchez v. Keisler, 505 F.3d 641, 648 (7th Cir. 2007); Figeroa v. INS, 886 F.2d 76, 77, 79 (4th Cir. 1989); Rabiu v. INS, 41 F.3d 879, 883 (2nd Cir. 1994). 33 Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920-21 (9th Cir. 2015); Mai v. Gonzales, 473 F.3d 162, 16667 (5th Cir. 2006). 34 Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); Esposito v. INS, 987 F.2d 108, 111 (2nd Cir. 1993). 35 Nehad v. Mukasey, 535 F.3d 962, 967-72 (9th Cir. 2008). 36 Singh v. Holder, 658 F.3d 879, 885-86 (9th Cir. 2011). 37 See Contreras v. Att’y Gen., 665 F.3d 578, 585-86 (3rd Cir. 2012); Balum-Chuc v. Mukasey, 547 F.3d 1044, 1050-51 (9th Cir. 2008). Subsequent to Balum-Chuc, the Ninth Circuit amended its prior decision in Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004), on which Balum-Chuc had relied. In the amended decision, the court noted that ineffective assistance of counsel that occurred prior to the initiation of removal proceedings could be relevant where it had an impact on the fairness of the proceedings. LaraTorres v. Gonzales, 404 F.3d 1105, 1105 (9th Cir. 2005).

13-10

Tab Position 1

Immigrant Legal Resource Center June 2017

efforts to obtain a discretionary form of relief. 38 Yet even within these jurisdictions, individuals may still be able to pursue these claims before the immigration courts or the BIA, as the BIA has not taken a position on the issue in a published decision.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Note on Ineffective Assistance by Non-Counsel. There are primarily three scenarios in which an individual may file a motion to reopen based on the ineffective assistance of a non-attorney: •

Ineffective assistance by a BIA-accredited representative. 39

•

A non-attorney working as an agent or employee of an attorney, who in turn provided deficient representation. In these situations, the ineffective assistance claim should be filed against the supervising attorney(s) of such agent or employee. 40

•

A non-attorney who purposefully or negligently held himself or herself out to be an attorney, and the client relied on that misrepresentation. 41

b. Prejudice In addition to showing that counsel’s performance was deficient or ineffective, a respondent must further show that she was prejudiced by counsel’s performance. The primary exception to the requirement of showing prejudice is where counsel’s performance resulted in the entry of an in absentia removal order. In such cases, prejudice is presumed. Matter of Grijalva, 21 I&N Dec. 472, 474 n.2 (BIA 1996). The prejudice standards differ somewhat between circuits, but generally involve consideration of whether there is a “reasonable likelihood” or “reasonable probability” that the result of proceedings would have been different but for counsel’s performance. 42 38

See, e.g., Guerra-Soto v. Ashcroft, 397 F.3d 637, 640-41 (8th Cir. 2005); Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001); Assaad v. Ashcroft, 378 F.3d 471, 475-76 (5th Cir. 2004); Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1146–48 (11th Cir. 1999); but see, Hernandez-Mendoza v. Gonzales, 537 F.3d 976, 978 (9th Cir. 2007); Hernandez v. Reno, 238 F.3d 50, 55-56 (1st Cir. 2001); Rabiu v. INS, 41 F.3d 879, 882-83 (2nd Cir. 1994). 39 Matter of Zmijewska, 24 I&N Dec. 87, 94-95 (BIA 2007). 40 Aris v. Mukasey, 517 F.3d 595, 601 (2nd Cir. 2008); Monjaraz-Munoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003). 41 Avagyan v. Holder, 646 F.3d 672, 681 (9th Cir. 2011). 42 See Contreras v. Att’y Gen., 665 F.3d 578, 584 (3rd Cir. 2012); Dakane v. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2004); Morales Apolinar, 514 F.3d at 898 (holding that prejudice requires showing that deficient performance “may have affected the outcome of the proceedings,” and noncitizen “need only show plausible grounds for relief”) (quotations omitted); Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir.

13-11

Chapter 13

In the Ninth Circuit, ineffective assistance claims against non-attorneys are generally limited to the above-mentioned scenarios, as the court has stated that non-attorneys “lack the expertise and legal professional duties to their clients that are the necessary preconditions” for such claims. Hernandez v. Mukasey, 524 F.3d 1014, 1019-20 (9th Cir. 2008). In such scenarios, typically involving a notario, whom the client knew was a non-attorney, the client may still be able to get his or her removal proceedings reopened on other grounds, such as based on new and material evidence, regardless of whether those new facts amount to ineffective assistance of counsel.

Chapter 13

In general, given that many motions to reopen based on ineffective assistance fail because the individual cannot establish prejudice, practitioners should specify the ways in which their client was prejudiced by former counsel’s performance. Example: Sasha is from Russia and hired an attorney to file an asylum application during her removal proceedings in immigration court. Her attorney presented her claim for asylum based on persecution Sasha experienced due to her practice of Evangelical Christianity. The IJ denied Sasha’s application, finding that there was insufficient evidence that the mistreatment she experienced was related to her religious faith. The BIA affirmed the IJ’s decision. About one month later, Sasha comes to your office to see if anything can be done to prevent her removal. You question Sasha in detail regarding her history and discover that Sasha was beaten by the Politsiya, the Russian national police, when she was a university student 25 years ago, due to her political support of then-Presidential candidate, Mikhail Gorbachev. You file an MTR on behalf of Sasha based the ineffective assistance of her former counsel, who failed to submit this key information of past persecution to the immigration judge. While you can easily show that Sasha’s former attorney acted ineffectively in failing to elicit facts regarding her past political persecution, proving prejudice would be much more challenging given the significant political change in Russia in the last 25 years. You will likely have difficulty showing that there was a “reasonable likelihood” that IJ would have found a wellfounded fear of future persecution based on Sasha’s political persecution, although you may have a claim, depending on the severity of the harm Sasha experienced, that she was a victim of severe past persecution that entitled her to asylum. c. Diligence requirement in some circuits At least two circuits have affirmed the BIA’s application of a diligence requirement to motions to reopen based on ineffective assistance of counsel. See Massis v. Mukasey, 549 F.3d 631, 636, 637 (4th Cir. 2008); Maatougui v. Holder, 738 F.3d 1230, 1243-46 (10th Cir. 2013). In these cases, the courts affirmed the BIA’s denial of motions to reopen because the respondents filed their ineffective assistance claims after the BIA’s final order of removal, even though the ineffective assistance occurred only during the proceedings before the immigration judge. Most circuits, however, have not validated this additional requirement. 43 Nevertheless, regardless of the circuit you are in, it is a good idea to demonstrate diligence through every step of the process, since the lack of diligence could certainly form a basis for denying the motion on discretionary grounds. See § 13.9.C, below.

1994) (“[P]roving prejudice requires the Petitioner to make a prima facie showing that had the application been filed, he would have been entitled to relief from deportation …”); but see Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (“[A noncitizen] must establish that, but for the ineffective assistance of counsel, he would have been entitled to continue residing in the United States”). 43 It is easy to get confused between the diligence requirement imposed by the two circuit courts in the ineffective assistance context, and the due diligence requirement applicable to cases invoking equitable tolling for the motion to reopen deadline. The two requirements are separate, with the latter applicable in all circuits that have recognized equitable tolling for MTRs.

13-12

Tab Position 1

Immigrant Legal Resource Center June 2017

B.

Equitable Tolling

As we discussed in § 13.3 above, individuals may generally file only one motion to reopen and must file it within 90 days of their final order of removal. Where the motion to reopen is based on exceptional circumstances in the form of ineffective assistance of counsel, which resulted in an in absentia removal order, the motion may be filed within 180 days of the order and is not subject to the one-motion numerical bar. The BIA has stated that there are no exceptions to the time and numerical limitations, other than that explicitly provided by statute or regulation. 44

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

However, under the doctrine of equitable tolling, a non-jurisdictional deadline, such as the motion to reopen deadline, may be extended where the claimant has exercised diligence in exercising his rights, but extraordinary circumstances were responsible for his failure to make a timely filing. 45 While the Board has not published a decision regarding the validity of equitable tolling as applied to motions to reopen, all circuits, with the exception of the First Circuit, have recognized the application of equitable tolling for reopening based on ineffective assistance of counsel. 46 Some circuits have also explicitly recognized that equitable tolling can be applied to the one-motion rule as well. 47 To equitably toll the motion to reopen deadline, the moving party must prove that: • •

Noncitizens in the First Circuit—the only court of appeals that has not recognized the availability of equitable tolling—will face additional challenges seeking to reopen removal orders based upon ineffective assistance outside of the 90- or 180-day deadlines. The First Circuit has “not yet decided whether equitable tolling applies to the statute’s ninety-day deadline, despite multiple opportunities to do so,” Bolieiro v. Holder, 731 F.3d 32, 39 (1st Cir. 2013), but has directed the BIA to determine in the first instance whether tolling applies in particular cases. See, e.g., Romer v. Holder, 663 F.3d 40, 43 (1st Cir. 2011). Practitioners should emphasize that the First Circuit has found it “notabl[e]” that “every circuit that has addressed the issue thus far has held that equitable tolling applies to either or both the time and numerical limits to filing motions to reopen.” Bolieiro, 731 F.3d at 39 n.7.

44

Matter of A-A-, 22 I&N Dec. 140, 143-44 (BIA 1998). Holland v. Florida, 560 U.S. 631, 649 (2010). 46 Iavorski v. INS, 232 F.3d 124, 129-33 (2nd Cir. 2000); Borges v. Gonzales, 402 F.3d 398, 404-06 (3rd Cir. 2005); Kuusk v. Holder, 732 F.3d 302, 305 (4th Cir. 2013); Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016); Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010); Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005); Ortega-Marroquin, 640 F.3d 814, 819-20 (8th Cir. 2011); Socop-Gonzalez v. INS, 272 F.3d 1176, 1187-93 (9th Cir. 2001) (en banc); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002); Avila-Santoyo v. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc). 47 Jin Bo Zhao v. INS, 452 F.3d 154, 159-60 (2nd Cir. 2006); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir. 2002). 45

13-13

Chapter 13

he or she exercised diligence in pursuing reopening; and the delay was due to extraordinary circumstances, most commonly ineffective assistance of prior counsel.

Reminder: Regardless of whether they are in a jurisdiction that has acknowledged the availability of equitable tolling, noncitizens seeking reopening after the motion to reopen deadline has passed also may request sua sponte reopening. See 8 CFR §§ 1003.2(a); 1003.23(b)(1). 1. Diligence

Chapter 13

Equitable tolling is only permitted until the extraordinary circumstances that prevented a timely filing of the motion to reopen “is, or should have been, discovered by a reasonable person in the situation.” 48 Practitioners should emphasize when presenting a claim for equitable tolling, that the client must only show “reasonable diligence,” not “maximum feasible diligence.” 49 Proving that an individual exercised due diligence is extremely “fact-intensive and case-specific,” thus requiring the presentation of facts, including a declaration from the respondent and corroborating witnesses, regarding the precise timeline of when and how the respondent discovered the ineffective assistance, and when and how he or she went about filing the motion to reopen after discovering the ineffective assistance. 50 PRACTICE TIP: The BIA frequently denies equitable tolling claims based on lack of diligence on the part of the respondent. You should ensure that your account for all the time that has passed since the client’s final removal order. Whenever possible, the client should be very specific in his declaration regarding how he discovered the ineffective assistance of his former counsel and when he acted to fix it. Any delay should be reasonably explained, such as misinformation the client may have received from subsequent attorneys, the client’s efforts to save up money to consult with a new attorney, and any psychological or physical disabilities that contributed to the delay. 2. Extraordinary circumstances The question of whether extraordinary circumstances prevented the timely filing to of a motion to reopen is factually intertwined with the issue underlying the merits of the motion to reopen— whether the respondent was prejudiced by ineffective assistance of counsel. Therefore, the

48

Iavorksi, 232 F.3d at 134. Holland, 560 U.S. at 653 (internal quotations omitted). 50 Avagyan v. Holder, 646 F.3d 672, 679, 682 n.9 (9th Cir. 2011) (requiring “assess[ment of] the reasonableness of petitioner’s actions in the context of his or her particular circumstances,” rather than some “magic period of time”); see also Gordillo v. Holder, 640 F.3d 700, 705 (6th Cir. 2011) (noting that “the mere passage of time—even a lot of time—before [a noncitizen] files a motion to reopen does not necessarily mean she was not diligent” because “the analysis ultimately depends on all of the facts of the case, not just the chronological ones”). As one court held, “the test for equitable tolling … is not the length of the delay in filing the complaint or other pleading; it is whether the claimant could reasonably have been expected to have filed earlier.” Pervaiz, 405 F.3d at 490. As a result, the periods of time over which courts find noncitizens diligent vary widely. Compare Borges, 402 F.3d at 407 (finding due diligence where motion was filed four years after deadline); Gaberov v. Mukasey, 516 F.3d 590, 596-97 (7th Cir. 2008) (same); Yuan Gao v. Mukasey, 519 F.3d 376, 379 (7th Cir. 2008) (finding no due diligence where motion was filed 16 days after deadline). 49

13-14

Tab Position 1

Immigrant Legal Resource Center June 2017

individual must comply with the procedural and substantive requirements under Lozada, in order for equitable tolling to apply. 3. Effect of equitable tolling: Clock stopped approach vs. reasonable time approach

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Circuits are split with respect to the effect of equitable tolling. A 2014 Supreme Court decision noted that a litigant “pauses the running of, or ‘tolls,’” the relevant statute of limitations by diligently pursuing his rights in an appropriate circumstance, Lozano, 134 S. Ct. at 1231-32. In line with this decision, some courts of appeals recognize that equitable tolling essentially “stops the clock” on the filing deadline. 51 Several other courts expressly reject that proposition and provide noncitizens with only “some additional time” following the discovery of ineffective assistance or another extraordinary circumstance. 52 As a result, even where equitable tolling may be available, motions to reopen should be filed as promptly as possible. In at least some jurisdictions, time spent complying with the Lozada procedural requirements will not be tolled. 53

About one year later, Rafael attempted to enroll in university courses and learned from the International Students Office that he did not actually have “immigration status” in the United States. That was the first time Rafael realized that withholding of removal did not confer him with permanent immigration status. After meeting with a counselor at the university, Rafael makes an appointment with you for the following week, which is approximately one year and four months after the IJ’s decision. You inform Rafael that the reason for the denial of his asylum application was his prior attorney’s failure to comply with the one-year deadline. You further inform him that he could have appealed the IJ’s denial of asylum, a right that his former attorney had waived. 51

Socop-Gonzalez, 272 F.3d at 1194-96; see also Mezo, 615 F.3d at 622 (noting that “[t]he clock would start again when [the noncitizen] discovered [the former attorney’s] fraudulence”). 52 Rashid, 533 F.3d at 131; see also Yuan Gao, 519 F.3d at 378-79. 53 See, e.g., Galvez Pineda v. Gonzales, 427 F.3d 833, 839 (10th Cir. 2005) (noting that, “had the [noncitizens] been unable to fulfill all the Lozada requirements within 90 days, they could still have filed the motion and explained any unavoidable delay”); but see Avagyan, 646 F.3d at 679 n.6 (describing as “an open question whether the tolling period extends until the [noncitizen] complies with the requirements of Lozada”).

13-15

Chapter 13

Example: Rafael, a national of Venezuela, hired an attorney in January 2016, within two months of entering the United States, to help him affirmatively file an asylum application. Unbeknownst to Rafael, the attorney waited over 11 months to file the application, therefore missing the one-year filing deadline applicable to asylum applications. When the Asylum Office referred Rafael’s case to the immigration court due to his failure to prove an exception to the one-year deadline, the same attorney represented him in immigration court. As an excuse for the late filing, the attorney argued that Rafael’s delay in filing his asylum application was because Rafael did not know of this requirement. The IJ pretermitted Rafael’s asylum application due to Rafael’s failure to comply with the one-year deadline, but granted him withholding of removal. The attorney told Rafael that he had “gotten a good deal” and that he should not appeal the IJ’s decision. Trusting his attorney, and happy that he would not be deported, Rafael did not appeal the IJ’s denial of asylum.

You realize that Rafael was unfairly deprived of his right to present an asylum claim because of former counsel’s ineffective assistance. You file a motion to reopen, arguing that due to ineffective assistance of counsel, the 90-day motion to reopen deadline should be tolled. Depending on the circuit you are in, the 90-day deadline will be tolled until Rafael met you and definitively learned of his former attorney’s error, or tolled for a reasonable amount of time depending on the circumstances. Regardless of the circuit, you must show that Rafael exercised diligence throughout the process and that he acted reasonably in trusting his former attorney and relying on it for one year, before he attempted to enroll in college. C.

Arguing Exceptions to Lozada Requirements

For an individual seeking a remedy for IAC, complete and timely compliance with the Lozada procedural requirements is the best practice. See Subsection A, supra. However, if a client has already filed a non-compliant MTR that has been denied, it may be necessary to argue that the agency may exempt some of the procedural requirements under Lozada.

Chapter 13

1. Bar complaints Despite some suggestions to the contrary, on its face, Lozada does not require filing a bar complaint in all circumstances. Filing is required only “if it is asserted that prior counsel’s handling of the case involved a violation of ethical or legal responsibilities,” and the motion “should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.” 54 Lozada expressly allows a non-citizen to explain why a bar complaint has not been filed. 55 Practitioners have reported, for instance, that the BIA has exempted the bar complaint requirement where former counsel admitted his negligence or mistake and “self-reported” to the state bar where he is licensed. However, seeking reopening without a bar complaint against previous counsel increases the risk of denial on procedural grounds. Circuit courts, the BIA, and IJs generally reject motions where an individual does not provide an adequate explanation for his failure to file a bar complaint. 56

54

Lozada, 19 I&N Dec. at 639 (emphasis added). See, e.g., Morales Apolinar v. Mukasey, 514 F.3d 893, 896–97 (9th Cir. 2008) (finding bar complaint would have been futile where former attorney was suspended by state bar after failing to respond to previous ineffective assistance charges); Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3rd Cir. 2007) (excusing failure to file complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”); Esposito v. INS, 987 F.2d 108, 111 (2nd Cir. 1993) (finding noncitizen’s belief that former counsel had been suspended from practice of law sufficient); Matter of Zmijewska, 24 I&N Dec. 87, 94-5 (BIA 2007) (finding noncitizen who was represented by an accredited representative “satisf[ied] the concerns underlying the Lozada requirements” without filing bar complaint); cf. CorreaRivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed). 56 See, e.g., Pepaj v. Mukasey, 509 F.3d 725, 727 (6th Cir. 2007) (holding that a noncitizen who failed to file a bar complaint or provide an explanation would “forfeit[] her ineffective-assistance-of-counsel claim”); Xu Yong Lu v. Ashcroft, 259 F.3d 127, 134-35 (3rd Cir. 2001) (finding noncitizen’s desire not to file complaint against counsel who represented him pro bono insufficient); Lara v. Trominski, 216 F.3d 55

13-16

Tab Position 1

Immigrant Legal Resource Center June 2017

2. “Substantial compliance” More broadly, in some jurisdictions, noncitizens need only demonstrate “substantial compliance” with, rather than “slavish adherence to,” the Lozada requirements in order to merit review of the underlying motion. 57

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Under a substantial compliance test, some courts have excused, for example, failure to provide a detailed enough affidavit, failure to personally notify counsel of the complaint, and failure to file a formal bar complaint. 58 Such exceptions should be argued only when absolutely necessary because courts do not typically apply them and the Fifth and Seventh Circuits have suggested that noncitizens must show strict compliance with the procedural requirements. 59 Even where courts have recognized flexibility in the application of the requirements, the immigration courts and the BIA regularly reject claims of substantial compliance with Lozada. 60 The BIA has not issued a precedent decision on whether to apply a substantial compliance standard; rather, it applies the law regarding whether to “mandat[e] strict adherence to all of the Lozada steps in every case … as is appropriate in each circuit.” 61 It has suggested that it is unwilling to apply a substantial compliance standard unless “the record reflects a ‘clear and obvious case of ineffective assistance of counsel.’” Practitioners should fully comply with all of the Lozada procedural requirements for MTRs based on IAC whenever possible.

13-17

Chapter 13

487, 497-499 (5th Cir. 2000) (finding noncitizen’s explanation that former counsel’s error was not a violation of legal or ethical responsibilities under relevant state law insufficient); Matter of Rivera-Claros, 21 I&N Dec. 599, 606 (BIA 1996) (finding noncitizen’s statement that former counsel’s error was inadvertent insufficient). 57 Yi Long Yang v. Gonzales, 478 F.3d 133, 142-43 (2nd Cir. 2007); Fadiga v. Att. Gen., 488 F.3d 142, 156 (3rd Cir. 2007); Barry v. Gonzales, 445 F.3d 741, 746 (4th Cir. 2006); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002). 58 Piranej v. Mukasey, 516 F.3d 137, 142-44 (2nd Cir. 2008) (remanding for further fact finding where “the exact parameters of [the] attorney-client relationship [were] unclear”); Ontiveros-Lopez v. INS, 213 F.3d 1121, 1125 (9th Cir. 2000) (excusing failure to provide notice where noncitizen did not receive information relevant to his claim until shortly before filing deadline); Ray v. Gonzales, 439 F.3d 582, 589 (9th Cir. 2006) (finding that noncitizen provided sufficient notice to prior attorneys by filing bar complaints against them); Rranic v. Att’y Gen., 540 F.3d 165, 173-75 (3rd Cir. 2008) (finding Lozada compliance, despite insufficient explanation for lack of bar complaint, where noncitizen satisfied policy concerns motivating complaint requirement). 59 See Hernandez-Ortez v. Holder, 741 F.3d 644, 647-48 (5th Cir. 2014); Lin Xing Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011). 60 Matter of D-R-, 25 I&N Dec. at 457 (quoting Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000)). 61 Matter of Assad, 23 I&N Dec. 553, 559 n.6 (BIA 2003); cf. Matter of D-R-, 25 I&N Dec. 445, 457 n.8 (BIA 2011) (“We do not intend to suggest that [the Ninth Circuit’s] exception to the Lozada requirements should be applied outside of [the Ninth Circuit”); Matter of Zmijewska, 24 I&N Dec. 87, 94 (BIA 2007) (“[W]e have not yet decided the question whether the Lozada requirements should be strictly applied to an accredited representative …”).

D.

Preparing an MTR Packet Based on Ineffective Assistance of Counsel

Chapter 13

Along with the motion, an MTR based on ineffective assistance of counsel should include the following evidence: •

An affidavit from the respondent regarding his agreement with former counsel and although not required, a detailed account of his history with counsel, including facts demonstrating the client’s diligence in discovering the IAC and acting on it.

•

If there was a written contract with former counsel, that should be included, along with proof of payment(s) to counsel.

•

Proof of former counsel’s State Bar membership and proof that a complaint was filed with the appropriate disciplinary authority and that former counsel has been notified of the complaint filed against him. Such proof can be in the form of current counsel’s affidavit detailing the relevant filing and notice procedures followed, and/or can be in the form of direct evidence of such actions (a copy of the Bar Complaint and a letter to former counsel). If the State Bar separately informed former counsel of the complaint, proof of that should be included as well.

•

If former counsel responded to the complaint, include a copy of the response. If no response has been received by former counsel by the time the MTR is filed, indicate that you will update the court if any response is received by former counsel while the MTR is pending.

PRACTICE TIP: Facts presented in affidavits supporting a motion to reopen must be accepted as true unless “inherently unbelievable.” 62 Practitioners should make this argument in the MTR and cite the relevant cases, even if you are not in a circuit that has recognized this rule. The MTR should include, at least briefly, an argument that your client’s claims are not “inherently unbelievable” and must be accepted as true for purposes of adjudicating the motion. § 13.10 Overview of MTRs Challenging In Absentia Removal Orders The INA and the regulations provide special rules for MTRs seeking to rescind in absentia orders. A request to rescind an in absentia removal order: (1) must be filed “within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances,” or (2) can be filed at any time “if the alien demonstrates that the alien did not receive notice” of the proceedings through a charging document, or in some circumstances, did not receive notice of the specific hearing for which he failed to appear. 63

62

INS v. Abudu, 485 U.S. 94, 101, 108 S. Ct. 904, 910, 99 L. Ed. 2d 90 (1988) “[F]or purposes of the limited screening function of motions to reopen, the BIA must draw all reasonable inferences in favor of the alien unless the evidence presented is ‘inherently unbelievable.’” (quoting Hernandez-Ortiz v. INS, 777 F.2d 509,]514 CA9 1985]. 63 INA § 240(b)(5)(C); 8 CFR § 1003.23(b)(4).

13-18

Tab Position 1

Immigrant Legal Resource Center June 2017

§ 13.11 Reopening In Absentia Removal Orders Based on Exceptional Circumstances The IJ may rescind an in absentia removal or deportation order if the respondent received notice of the hearing, but failed to appear due to “exceptional circumstances.” 64 In exclusion and deportation cases prior to June 13, 1992, a less stringent standard, “reasonable cause,” applies. 65

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Where to File the Motion to Reopen. The motion should be filed with the immigration court having administrative control over the record of proceedings. 66 Typically, this will be the court where the in absentia order of removal or deportation was entered. Time for Filing the Motion to Reopen. A motion to reopen in removal proceedings or deportation proceedings initiated on or after June 13, 1992 must be filed within 180 days of the entry of the in absentia order. 67 A motion to reopen in exclusion proceedings or deportation proceedings before June 13, 1992 may be filed at any time. 68 Filing Fees. The filing fee for a motion to reopen is $110. 69 Respondents who cannot afford the fee may request a fee waiver. 70 Automatic Stay of Removal/Deportation. An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. 71 In deportation cases only, the stay remains in effect during the appeal to the BIA. 72

A.

Meaning of “Exceptional Circumstances”

The statute provides: The term “exceptional circumstances” refers to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien. 73

64

INA § 240(b)(5)(C)(i); INA § 242B(c)(3)(A) (pre-IIRAIRA). See, e.g., Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988). 66 8 CFR § 1003.23(b)(1)(ii). 67 INA § 240(b)(5)(C)(i); INA § 242B(c)(3)(A) (pre-IIRAIRA); 8 CFR §§ 1003.23 (b)(4)(ii), (iii)(A)(1). 68 See 8 CFR § 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I&N Dec. 590, 593 (BIA 1999); Matter of CruzGarcia, 22 I&N Dec. 1155, 1159 (BIA 1999). 69 8 CFR § 1103.7(b)(2). 70 8 CFR § 1003.24. 71 INA § 240(b)(5)(C); see also INA § 242B(c)(3) (pre-IIRAIRA). 72 Matter of Rivera, 21 I&N Dec. 232, 234 (BIA 1996). For removal cases, the automatic stay does not remain in effect during the appeal process. See BIA Practice Manual, Chapter 6.2, available at www.justice.gov/sites/default/files/pages/attachments/2017/02/03/biapracticemanualfy2017.pdf#page=99. 73 INA § 240(e)(1); see also INA § 242B(f)(2) (pre-IIRAIRA). 65

13-19

Chapter 13

To alert the court and ICE to the applicability of the automatic stay provision, it is good practice to indicate on the cover page and the first page of the motion that an automatic stay applies.

The immigration courts employ a “totality of the circumstances” test to determine whether the respondent’s reason for not attending the hearing is an exceptional circumstance. 74 The inquiry is, therefore, highly fact-specific. Examples:

Chapter 13

B.

•

Serious illness of the respondent or a close family member is considered an exceptional circumstance, provided there is sufficient credible documentation. 75

•

Failure to appear due to ineffective assistance of counsel has also been held to be an exceptional circumstance, provided it complies with the procedural and substantive requirements for an IAC claim. See § 13.9.

•

Incorrect reliance on a pending motion for change of venue or motion for a continuance generally is not considered an exceptional circumstance. 76

•

Traffic and car trouble are generally not considered exceptional circumstances. 77

Challenging In Absentia Orders Where Respondent Arrived Late

A respondent who has been ordered removed in absentia before his late arrival to a hearing would probably find it difficult to prove exceptional circumstances. However, he may be able to argue that he need not show exceptional circumstances, because in certain situations, a late arrival does not constitute failure to appear. For example, if the IJ is still on the bench hearing other cases, or only adjourned a few minutes before the respondent’s arrival, the respondent may have grounds for reopening on grounds that he did not fail to appear for his hearing. 78 74

Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996); Matter of Grijalva, 21 I&N Dec. 472, 474 (BIA 1996). 75 See Matter of J-P-, 22 I&N Dec. 33, 34 (BIA 1998); Matter of Singh, 21 I&N Dec. 998, 1000 (BIA 1997); Matter of N-B-, 22 I&N Dec. 590, 593 (BIA 1999); Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (upholding the IJ’s determination that a nurse’s affidavit stating that petitioner had been treated for malaria the day before the hearing was not credible in the absence of further documentation and because he had failed to contact the immigration court on the day of the hearing); Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002) (finding inadequate, a hospital form that failed to indicate that petitioner’s asthma attack was a “serious health condition”). 76 See Jian Jun Tang v. Ashcroft, 354 F.3d 1192, 1195 (10th Cir. 2003); Matter of W-F-, 21 I&N Dec. 503, 509 (BIA 1996); Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th Cir. 1994); Patel v. INS, 803 F.2d 804, 806 (5th Cir. 1986); Maldonado-Perez v. INS, 865 F.2d 328, 335 (DC Cir. 1989). 77 See Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996); De Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1995); Matter of S-A-, 21 I&N Dec. 1050, 1051 (BIA 1997). However, the Board has indicated that a detailed and well documented explanation of why there was an extraordinary amount of traffic can establish an exceptional circumstance. Matter of S-A-, 21 I&N Dec. at 1051. Moreover, traffic, when combined with other factors, may result in exceptional circumstances. Herbert v. Ashcroft, 325 F.3d 68, 72 (1st Cir. 2003); De Jimenez v. Ashcroft, 370 F.3d 783, 789-90 (8th Cir. 2004). 78 See Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008); Abu Hasirah v. Dep’t of Homeland Sec., 478 F.3d 474 (2nd Cir. 2007); Cabrera-Perez v. Gonzales, 456 F.3d 109 (3rd Cir. 2006); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir. 2005); Jerezano v. INS, 169 F.3d 613, 615 (9th Cir. 1999); Nazarova v. INS, 171 F.3d 478, 480 (7th Cir. 1998); but see Thomas v. INS, 976 F.2d.

13-20

Tab Position 1

Immigrant Legal Resource Center June 2017

Evidence: Whenever possible, the respondent should include the following with an MTR based on failure to appear due to exceptional circumstances: • • • •

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A detailed and plausible explanation for why she failed to appear. Direct evidence in support of the motion. If documentation is not available, the respondent should submit signed affidavits. 79 A statement that the respondent attempted to contact the immigration court on the date of the hearing or an explanation for why she did not do so. 80 Proof of prima facie eligibility for relief or other defenses to removal, if applicable, as they tend to show incentive to appear. 81

§ 13.12 Reopening In Absentia Removal Orders Based on Lack of Notice An in absentia deportation, exclusion, or removal order may be rescinded by the immigration judge upon the filing of a motion to reopen if the respondent did not receive proper notice of the hearing. 82

786, 790 (1st Cir. 1992) (not reasonable cause where respondent and counsel arrived ten minutes after IJ entered order of deportation). 79 See Matter of J-P-, 22 I&N Dec. 33, 34-35 (BIA 1998). 80 See Matter of J-P-, 22 I&N Dec. at 35; Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002); Morales v. INS, 116 F.3d 145, 149 (5th Cir. 1995). 81 See, e.g., Herbert v. Ashcroft, 325 F.3d 68, 72 & n.1 (1st Cir. 2003) (noting that there was no meaningful delay by respondent); Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002) (remanding the case for review on the merits where the petitioner “had no possible reason to try to delay the hearing,” had a basis for relief, had previously attended all hearings, and where the deportation would break up a family or force U.S. citizen children overseas). 82 INA § 240(b)(5)(C)(ii); INA § 242B(c)(3)(B) (pre-IIRAIRA); 8 CFR § 1003.23(b)(4)(ii), (iii)(A)(2); see Matter of Haim, 19 I&N Dec. 641, 642 (BIA 1988).

13-21

Chapter 13

PRACTICE TIP: Frequently, clients state that they missed a hearing in immigration court because they did not know that a hearing was scheduled. Such claims should be very carefully scrutinized, including whether the client was present at prior hearings and received the hearing notice by personal service or that his attorney was mailed a hearing notice. Practitioners should be extremely proactive in presenting evidence that the client’s misinformation regarding his hearing date was not due to any unreasonable act (or negligence) on his part. For example, the client may have had inadequate interpretation (or no interpreter) at his prior hearing and therefore did not understand the requirement to appear on a certain date. Or his former attorney may admit that he failed to notify the client of the hearing date. Showing that the client had no incentive to purposefully miss his hearing will also have significant impact, particularly where the client is prima facie eligible for some relief from removal (or has a valid basis to challenge the charge of removal).

Where to File the Motion to Reopen. The motion should be filed with the immigration court having administrative control over the record of proceedings. 83 Typically, this will be the court where the in absentia order of removal or deportation was entered. Time for Filing the Motion to Reopen. A motion to reopen based on lack of proper notice can be filed at any time. 84 Numerical Limit Does Apply in Removal Context. Regulations state that the numerical limit does not apply to MTRs of in absentia deportation orders, but do not make the same exception for removal orders. 85 Filing Fees. There is no fee for a motion to reopen if the basis for the motion is lack of notice in removal or deportation proceedings. 8 CFR § 1003.24(b)(2)(v). Automatic Stay of Removal/Deportation. An automatic stay goes into effect when the motion is filed and remains in effect pending disposition of the motion by the immigration judge. 86 In deportation cases only, the stay remains in effect during the appeal to the BIA. 87 To alert the court and ICE to the applicability of the automatic stay provision, it is good practice to indicate on the cover page and the first page of the motion that an automatic stay applies.

Chapter 13

A.

Meaning of Proper Notice

Proper notice means that ICE must properly serve the respondent with a charging document at the outset of proceedings. The charging document is an Order to Show Cause (OSC) in deportation and exclusion proceedings and a Notice to Appear (NTA) in removal proceedings. Also, the court must properly serve the respondent with written notice of all hearings. The charging document must include: • • • •

the nature of the proceedings; the legal authority for the proceedings; the acts/conduct alleged to be in violation of the law; the charges against the respondent;

83

8 CFR § 1003.23(b)(1)(ii). INA § 240(b)(5)(C)(ii); INA § 242B(c)(3)(B) (pre-IIRAIRA). 85 8 CFR §§ 1003.23(b)(4)(ii), (iii). In spite of the regulation’s language that the numerical limit applies to motions to reopen in absentia removal orders, practitioners should examine in cases where prior MTRs have been filed by the respondent, whether there is an argument that those first MTRs were not subject to the numerical bar (for example based on asylum or VAWA eligibility, or equitable tolling). Joshi v. Ashcroft, 389 F.3d 732, 734–35 (7th Cir. 2004). Additionally, where the numerical bar does apply to an MTR of an in absentia removal order, practitioners should determine whether there are other bases for reopening that would not be subject to the numerical bar. The Board has held that an in absentia removal order need not be rescinded before the proceedings can be reopened on other grounds, such as prima facie eligibility for asylum. Matter of J-G-, 26 I&N Dec. 161 (BIA 2013). 86 INA § 240(b)(5)(C); see also INA § 242B(c)(3) (pre-IIRAIRA). 87 Matter of Rivera, 21 I&N Dec. 232, 234 (BIA 1996). For removal cases, the automatic stay does not remain in effect during the appeal process. See BIA Practice Manual, Chapter 6.2, available at www.justice.gov/sites/default/files/pages/attachments/2017/02/03/biapracticemanualfy2017.pdf#page=99. 84

13-22

Tab Position 1

Immigrant Legal Resource Center June 2017

• •

notification of the right to be represented by counsel; and the requirement that the respondent must provide a change of address or telephone number, and the consequences of not providing a change of address (i.e., that the he or she may be ordered removed or deported in absentia). 88

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The notice of hearing, whether contained in the charging document or as a separate notice, must: • • B.

state the time and place of the proceedings; and inform the respondent of the consequences of failing to attend the hearing. 89 Methods of Service

There is a presumption of effective delivery where the evidence indicates that the notice was properly served. However, if the respondent can show that he was not properly served, the presumption of effective delivery should not apply. 1. Exclusion and deportation cases filed prior to June 13, 1992

2. Deportation cases filed between June 13, 1992 and April 1, 1997 If the OSC was filed between June 13, 1992 and April 1, 1997, the OSC and all notices of hearing must be served in person or by certified mail to the respondent or the attorney of record, if any. 93 The OSC also must be mailed return receipt requested. 94 Thus, in order to accomplish service of the OSC, the certified mail receipt must be signed by the respondent or a responsible person at the respondent’s address. However, a signature is not required to effect service of a subsequent notice of hearing. 3. Removal proceedings filed on or after April 1, 1997 Like the OSC, the NTA and notice of hearing may be served in person or by mail, but there is no requirement that the NTA be mailed by certified mail. 95 Regular mail is sufficient and signatures of receipt are not required.

88

INA § 239(a)(1); INA § 242B(a)(1) (pre-IIRAIRA). INA §§ 239(a)(1)(G), (2)(A)(ii); INA § 242B(a)(2) (pre-IIRAIRA). 90 8 CFR § 242.1(c). 91 8 CFR § 103.5a(a)(2). 92 Matter of Huete, 20 I&N Dec. 250, 253 (BIA 1991). 93 INA §§ 242B(a)(1), (2) (pre-IIRAIRA). 94 Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995). 95 INA § 239(c). 89

13-23

Chapter 13

Before June 13, 1992, service of the OSC could be accomplished either by personal service or by “routine service.” 90 However, the regulation stated that when routine service was used and the respondent did not appear for the hearing (or acknowledge in writing that the OSC was received), personal service was required. Personal service included mailing the notice by certified or registered mail, return receipt requested. 91 The mail receipt must have been signed by the respondent or a responsible person at the respondent’s address and returned to the former INS, to effect personal service. 92

ICE may mail the NTA to the last address on file for the respondent. 96 However, a non-citizen cannot be ordered removed or deported in absentia until she is warned, by actual receipt of the NTA or OSC, that she may be ordered removed or deported in absentia as a consequence of failing to inform the government of a change of address. Thus, individuals who failed to report a change of address and do not receive the NTA or OSC as a result, cannot be ordered removed in absentia. 97 Once a respondent actually receives the OSC or NTA, hearing notices are considered properly served if there is proof of attempted delivery to the last address provided by the respondent, even if the respondent does not actually receive the hearing notice. 98 Similarly, the immigration court is only required to mail hearing notices to the respondent’s last known address, whether the respondent actually receives the notice or not. 99 C.

Proving Lack of Actual Notice of Proceedings 1. Pre-IIRAIRA cases

Chapter 13

Where the notice was sent by certified mail, the Board has held that there is a presumption of effective service by mail. 100 Therefore, if the record shows that the mail was delivered to the correct address by the appropriate method, the court usually will presume that the notice was served. The presumption of effective service can be overcome if the respondent demonstrates nondelivery or improper delivery by the Postal Service. Nondelivery or improper delivery can be established by submitting substantial and probative evidence, such as documentary evidence from the Postal Service and affidavits. For example, if there were ongoing problems with the mail delivery, you may want to provide details about the problems and affidavits from people with direct knowledge of the problem. 2. Post-IIRAIRA cases There is a weaker presumption of delivery where the notice was sent by regular mail. 101 In determining whether the respondent has overcome this presumption, the IJ may consider a variety of factors, including:

96

Matter of G-Y-R-, 23 I&N Dec. 181, 189-90 (BIA 2001). Subsequently, the BIA clarified that Matter of G-Y-R- applies only in cases where the respondent claims that the charging document was not mailed to his correct address. See Matter of M-D-, 23 I&N Dec. 540, 545 (BIA 2002). The BIA held that where the NTA was mailed to the correct address but was returned to the government as “unclaimed,” the notice requirements were satisfied, even in the absence of actual receipt. 98 See INA § 239(c); INA § 242B(c)(1) (pre-IIRAIRA, April 1997); Matter of G-Y-R-, 23 I&N Dec. at 18788. 99 INA §§ 239(a)(2)(B); INA §§ 242B(a)(2), (b)(2) (pre-IIRAIRA). 100 See Matter of Grijalva, 21 I&N Dec. 27, 37 (BIA 1995). 101 Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008); Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008). 97

13-24

Tab Position 1

Immigrant Legal Resource Center June 2017

• • • • • • D.

the respondent’s affidavit; affidavits from family members and other individuals who are knowledgeable about the relevant facts; the respondent’s actions upon learning about the in absentia order and whether he exercised due diligence in seeking redress; evidence of prima facie eligibility for relief, to help establish an incentive to appear; previous attendance at immigration court hearings; other circumstances or evidence indicating possible non-receipt

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Service on Respondent’s Attorney is Service on Respondent

Service on the attorney of record constitutes service on the respondent. 102 If the attorney did not notify his client of the hearing, the respondent may have an argument that counsel’s failure to properly notify her of the hearing was ineffective assistance of counsel, amounting to an exceptional circumstance. 103 See § 13.9, above. E.

Matter of M-S- and Requirement of Oral Notice

The statute only provides for rescission of an in absentia order when the government fails to provide written notice. In Matter of M-S-, 22 I&N Dec. 349 (BIA 1998), the BIA provided limited circumstances under which proceedings may be reopened based on lack of oral notice.

Therefore, respondents who did not receive oral warnings and are eligible for a form of relief that was unavailable to them at their last hearing can seek to reopen their cases under the general motion to reopen rules. 105 These provisions require that the motion be filed within 90 days of the final order of removal or deportation and that the respondent submit the application for relief with the motion to reopen. F.

Special Rules for Minors

8 CFR 103.8(c)(2)(ii) requires that in the case of a minor under 14 years of age, service must be made upon the person with whom the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend. If a respondent was under 14 at the

102

INA §§ 239(a)(1), (2); INA §§ 242B(a)(1), (2) (pre-IIRAIRA); Matter of Peugnet, 20 I&N Dec. 233, 237 (BIA 1991). 103 See Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996). 104 In Matter of M-S-, the Board reasoned that INA § 242B(e)(1) (pre-IIRAIRA) (now, INA § 240(b)(7)), explicitly allows respondents to apply for relief when they were not warned verbally of the consequences of failing to appear for a hearing. 105 See 8 CFR § 1003.23(b)(1) and (3).

13-25

Chapter 13

(1) No oral warnings were provided in the respondent’s native language or a language the respondent understands, giving notice of the time and place of the proceedings and the consequences of failing to appear at the hearing; and (2) Respondent is eligible for a form of relief that was unavailable at the time of the hearing. 104

time of initiation of proceedings, a motion to reopen should be granted if the government did not comply with this regulation by serving the minor’s caretaker and other specified persons. 106 The Ninth Circuit has held that it would be illogical to require a legally responsible adult to ensure future appearances and then not serve the adult, and that the 14-year old cutoff was arbitrary. 107 It therefore extended the 14-year old cut off to all minors released to an adult’s custody pursuant to 8 CFR 236.3. G.

Checklist to Determine if There Are Grounds to Reopen Based on Lack of Proper Notice    

Chapter 13

Typos in the mailing address. Incorrect hearing date. The mailing address is not the last one provided by the respondent. Direct or circumstantial evidence that the respondent did not actually receive the charging document, such as return to the court as undeliverable or failure to use proper method of service, such as certified mail for deportation cases.  The respondent did not receive oral notice of the consequences of failing to appear and he is now prima facie eligible for relief from removal.  If the notice was mailed to an attorney, he was not in fact the respondent’s attorney  If the respondent was a juvenile under 14 years old and his caretaker and/or guardian were not served with the NTA. § 13.13 Joint and Sua Sponte Motions to Reopen Clients who are eligible for relief from removal, but have an old removal order entered against them, regularly approach practitioners for advice. For example, an individual may have a fiveyear old removal order, but has just now become eligible to adjust status based on an approved family petition. In cases where the statutory deadline for an MTR has passed, no exception to the deadline applies, and equitable tolling is not applicable, a Joint MTR or Sua Sponte MTR may be your client’s only options. WARNING! Because clients filing joint or sua sponte MTRs have a final order of removal, practitioners must thoroughly review the risks and benefits of exposing the client to ICE. It is extremely important to be aware of DHS’ current policy on enforcement priorities, as they have significantly fluctuated with each Presidential election. On January 25, 2017, Donald Trump issued an Executive Order stating that any removable person with any criminal conviction or even a pending criminal charge, is an enforcement priority. 108 Those with final orders of removal will likely be treated even more harshly by ICE under the current administration. The enforcement priorities, and how they are implemented locally in your area, are key considerations in determining whether a joint or sua sponte MTR is a good option for your client.

106

Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011). Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). 108 Enhancing Public Security in the Interior of the United States, E.O. 13768 (Jan 25, 2017), 82 FR 8799. 107

13-26

Tab Position 1

Immigrant Legal Resource Center June 2017

A.

Joint Motions to Reopen

MTRs that have been “agreed upon by all parties and are jointly filed,” are not subject to the time and numerical limitations. 109 Joint MTRs are most common in scenarios where an individual with a removal order becomes newly eligible for adjustment of status, but the 90-day MTR deadline has passed. In cases where a respondent is immediately eligible to adjust status, a motion to reopen and remand may be joined by DHS “if such adjustment of status was not available to the respondent at the former hearing, the alien is statutorily eligible for adjustment of status, and the respondent merits a favorable exercise of discretion.” 110

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

There are other bases for filing a joint MTR, but DHS will apply a higher standard of “exceptional and compelling circumstances” when deciding whether to join in the motion. Examples of non-adjustment based joint MTRs are a client’s eligibility for a U visa, VAWA cancellation of removal, or other forms of relief, where the client did not previously have the opportunity to present the claim for relief. Because such joint requests are subject to the higher standard, it is even more crucial that the evidence packet sent to DHS counsel include extensive evidence of positive equities.

Requests for joint MTRs should be sent to the Chief Counsel’s office in charge of cases in the immigration court that entered the respondent’s removal order. Various ICE Chief Counsels’ offices may differ as to the procedure they prefer when counsel are seeking to file a joint motion. Generally, a request should include proof of eligibility for adjustment of status or other relief you will be seeking, documentary evidence demonstrating that your client merits a favorable exercise of discretion, and a copy of the Joint Motion to Reopen for DHS counsel to sign with the attached proposed order and the entire packet you will be filing with the MTR. It is recommended that practitioners include a cover letter to the DHS Assistant Chief Counsel who will be reviewing the request, which highlights the basis for your request to join, as well as the positive equities in your client’s case.

109

8 CFR § 1003.23(b)(4)(iv). Legacy INS Memorandum, B. Cooper, “Motions to Reopen for Consideration of Adjustment of Status” (May 17, 2001).

110

13-27

Chapter 13

The first step in filing a joint MTR is, of course, convincing the ICE Chief Counsel’s office to join in the motion. Because joining a motion to reopen is discretionary, practitioners seeking to file a joint motion with DHS should prepare evidence and arguments supporting a positive exercise of discretion. Such evidence includes (1) the hardship to your client and his USC and LPR family members if he were to consular process (including the potential applicability of the three/ten-year bar if he were to depart the United States); (2) your client’s criminal history, if any, highlighting either no criminal history or mitigating factors of criminal history such as passage of time; (3) the number and severity of your client’s immigration violations; (4) whether your client is a removal priority; and (5) other positive equities such as family and business ties in the United States, community service, and positive tax history. This list is not exhaustive and practitioners should include any information or documentation that would tend to support a positive exercise of discretion.

If the Chief Counsel’s office joins in your MTR, counsel of both parties should sign the motion. If the BIA entered the final order of removal against your client, the joint MTR should be filed with the BIA. If the last removal order was entered by an immigration judge, the joint MTR should be submitted to that court, directed to the judge who entered the initial order. If the judge who signed the order is no longer at the court, the motion should be submitted to the same court, but with the name of the judge left blank on the motion. B.

Checklist

Each ICE Chief Counsel’s office has its own procedures for considering joint motions, and practitioners should become educated on what those procedures are in the locality where the client was ordered removed. There is, however, a general procedure for submitting requests to Chief Counsel’s offices that is relatively uniform across the country:  Send a letter or e-mail to the designated person at the Chief Counsel’s office in charge of cases in the immigration court where the removal order was originally entered, asking them to join your MTR. Make clear in the letter the basis for your request, i.e., the client’s recent eligibility for adjustment of status or U visa;  Be sure to include a G-28;

Chapter 13

 Include a draft of the Joint Motion to Reopen you intend to file with a signature line next to yours, for the Chief Counsel’s office to sign;  Submit whatever application for relief you intend to pursue if the case is reopened and make it as comprehensive of a packet as possible. In addition to the application form, you should submit proof of prima facie eligibility for the relief the client intends to pursue before the immigration judge, such as an approved I-130, affidavit of support, and client’s admissibility.  Evidence that the client is deserving of a positive exercise of discretion, as discussed above. If ICE joins your MTR, there is a high likelihood that the IJ or BIA will grant it. While they are not required to grant jointly-filed motions, IJs and the BIA have not been known to deny jointlyfiled MTRs. If ICE refuses to join in your MTR, unfortunately, there is not any legal recourse since the decision whether to join is one of prosecutorial discretion. Nor is ICE required to provide written reasoning for its refusal to join in the motion. Depending on the procedures in your locality, you may be able to ask for reconsideration or review by a senior assistant chief counsel. Unless they had originally overlooked a significant fact or legal issue, however, the Chief Counsel’s office is unlikely to change its mind. The only recourse left for the client in this situation is often a sua sponte MTR, discussed immediately below.

13-28

Tab Position 1

Immigrant Legal Resource Center June 2017

C.

Sua Sponte Motions to Reopen

Immigration judges and the BIA have sua sponte authority to decide cases. 111 In Latin, sua sponte means “of one’s own accord.” The regulations provide that either party may move the court to exercise its sua sponte powers, although the IJ and BIA are authorized to make sua sponte decisions without prompting from other parties as well.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A sua sponte MTR is often the last recourse for a client with a final order of removal, who does not meet the time and numerical requirements for an MTR and who is unable to obtain agreement from ICE to file a joint MTR. Sua sponte MTRs can be filed at any time and are entirely discretionary. A sua sponte MTR should be filed with the immigration judge, unless jurisdiction has vested with the Board. In addition to relevant evidence regarding the respondent’s eligibility for relief or other evidence establishing the basis of the MTR, it should include significant evidence demonstrating positive equities. The BIA has recognized that it “has clear authority to reopen and remand cases without regard to other regulatory provisions.” 112 However, it is important to note that sua sponte requests to reopen may not be used as a general cure for filing defects or to otherwise circumvent the regulations when enforcing the regulations may result in hardship. 113

PRACTICE TIP: Any time you are claiming an exception to the time or numerical limitations of MTRs or arguing for equitable tolling, it is a good idea to alternatively seek sua sponte reopening. Even if the IJ or BIA reject the other bases for reopening, they would still have authority to sua sponte reopen proceedings. 111

8 CFR §§ 1003.2(a), 1003.23(b)(1). Matter of Yewondwosen, (BIA 1997); Matter of G-D-, (BIA 1999) (stating that BIA’s sua sponte authority is an “independent regulatory power”). 113 Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). 114 8 CFR § 1003.23(b). 115 Matter of L-V-K-, 22 I&N Dec. 976 (BIA 1999) (discussing sua sponte authority to reopen on BIA’s own motion as distinct from adjudication of a noncitizen’s motion). 112

13-29

Chapter 13

A sua sponte MTR may also be a useful tool for an individual who has already been removed and is not physically present in the United States. The regulations authorize an immigration judge or the BIA to act in “any case” in which he or she has made a decision, and not simply those cases in which the noncitizen has not departed the United States. The regulation also provides that an immigration judge or the BIA may act “at any time,” and thus does not restrict the authority to reopen/reconsider cases prior to a noncitizen’s departure or removal from the United States. In contrast, the regulation does prohibit a motion to reopen “made by or on behalf of a person who is the subject of exclusion, deportation or removal proceedings subsequent to his or her departure from the United States.” 114 However, this limitation does not apply, based upon the regulation’s plain language, to an immigration judge’s or BIA’s independent sua sponte authority to reopen/reconsider cases. Arguably, an immigration judge or the BIA acts “on his or her own motion” and not “on behalf” of a noncitizen. 115

§ 13.14 Discretionary Factors Relevant to Motions to Reopen The decision whether to grant an MTR is ultimately discretionary, except where the basis of reopening is lack of service of the NTA. 116 While the BIA and IJ have wide-ranging authority in exercising their discretionary authority in the context of motions to reopen, they may not rely on irrelevant factors. 117 The following are common discretionary considerations in the context of MTRs: • • • • • • •

Chapter 13

• •

Criminal history: recency, seriousness, and number of offenses Respondent’s prior immigration violations 118 Length of residence in the U.S. Extent and strength of family ties in the U.S., particularly to U.S. citizens and LPRs. Business ties in the U.S., particularly extent of business success History of income tax filings Community service and involvement, i.e., church activities, donations, volunteering for charities Respondent’s diligence in resolving his immigration issues and filing the MTR Conditions in Respondent’s native country, related to past experiences or prospective harm or hardships to Respondent and family members if forced to return, i.e., fear of physical harm, lack of family ties in the country, lack of economic opportunities, etc.

PRACTICE TIP: In preparing an MTR packet, practitioners should be vigilant in proactively presenting evidence establishing that their client is deserving of a positive exercise of discretion. You must keep in mind that the MTR can be denied as a matter of discretion even where the respondent is prima facie eligible for adjustment of status or asylum, and even where the MTR is timely.

116

Matter of G-Y-R-, 12 I&N Dec. 181 (BIA 2001). Virk v. INS, 295 F.3d 1055, 1060-61 (9th Cir. 2002) (improper for BIA to rely on an unrelated section of the INA and petitioner’s wife’s misconduct); Ng v. INS, 804 F.2d 534, 539 (9th Cir. 1986) (improper for BIA to rely on misconduct of petitioner’s father). 118 In addition to the history of how and why the respondent entered the United States, the IJ and the Board may consider the respondent’s compliance with immigration orders after his arrival in the U.S. The Board may negatively exercise its discretion under the “fugitive disentitlement doctrine,” which is normally applied in criminal contexts, where the respondent has engaged in “deliberate flouting of the immigration laws.” Matter of Barocio, 19 I&N Dec. 255 (BIA 1985) (applying doctrine where respondents failed to comply with voluntary departure order and instead filed a motion to reopen for an opportunity to comply with the order, while deliberately staying out of reach of enforcement officers). See also, Martin v. Mukasey, 517 F.3d 1201, 1207 (10th Cir. 2008); Giri v. Keisler, 507 F.3d 833, 835 (5th Cir. 2007); Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir. 2007); Garcia-Flores v. Gonzales, 477 F.3d 439, 441-42 (6th Cir. 2007); Sapoundjiev v. Ashcroft, 376 F.3d 727, 730 (7th Cir. 2004); Antonio-Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003); Bar-Levy v. Immigration & Naturalization Serv., 990 F.2d 33, 34 (2nd Cir. 1993); Arana v. U.S. INS, 673 F.2d 75, 77 (3rd Cir. 1982) (per curiam). 117

13-30

Tab Position 1

Immigrant Legal Resource Center June 2017

INDEX OF APPENDICES Sample Notice to Appear and Order to Show Cause

Appendix B

Sample Record of Deportable Alien, Form I-213

Appendix C

Sample Notice of Custody Determination, Form I-286

Appendix D

Sample Client Interview Tools

Appendix E

FOIA Materials For a Step-by-Step Guide to FOIA Requests, see our website at www.ilrc.org/step-step-guide-completing-foia-requests Sample FOIA Request Cover Letter Sample Cover Letter for EOIR FOIA Request Sample Cover Letter for Track 3 Processing Sample Cover Letters for FOIA Appeal

Appendix F

Criminal Record Requests FBI Record Check Information and Sample California Record Check Information and Sample

Appendix G

Sample Engagement Letter

Appendix H

Bond Hearing Worksheet and Checklists Florence Immigration Court Bond Worksheet Custody Hearing Checklist

Appendix I

Bond Hearing Sample Materials Bond Hearing Motion Pursuant to Matter of Joseph, Immigrants’ Rights Clinic, Stanford Law School Sample Bond Hearing Exhibit Submission, Immigrants’ Rights Clinic, Stanford Law School Sample Bond Hearing Submission, Law Offices of Stanton & Kaufman

Appendix J

Memorandum, Enforcement of the Immigration Laws to Serve the National Interest, February 20, 2017 (John Kelly, Secretary, U.S. Department of Homeland Security

Appendix K

Online Detainee Locator System Brochure in English and Spanish

Appendix L

ICE Detainee Transfers Policy, January 4, 2012

Appendix M

Filing Notice of Representation FAQs re: eRegistry Sample E-28

Appendix N

Form E-33, Change of Address Form (Florence Court example) Available at www.usdoj.gov/eoir, look up specific court for correct mailing address.

Appendix O

Biometrics Instructions Sheet

Index of Appendices 1

Appendices

Appendix A

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P

Motion to Suppress Sample Materials Motion to Terminate Removal Proceedings Motion to Suppress and Terminate, Immigration Law Offices of Elliott Ozment Immigrants’ Rights Clinic, Stanford Law School Motion Suppress Materials

Appendix Q

Final IJ Decision Materials Sample Order of the Immigration Judge Sample Post-Order Instructions Voluntary Departure Advisals

Appendix R

Sample Proposed Order Template and Sample Proof of Service

Appendix S

Sample Motions Sample Motion to Change Venue Sample Motion to Continue Individual Hearing Sample Notice of Non-Opposition Sample Motion to Present Telephonic Testimony Sample Motion to Accept Late Filing Sample Motion for Consolidation Sample Motion to Withdraw and Substitute Counsel

Appendix T

Cancellation of Removal Document Gathering Lists

Appendix U

Sample Release of Information Consent Form

Appendix V

Sample Prosecutorial Discretion Requests

Appendix W

Sample Document Submissions in Support of Relief Document Submissions in Support of Cancellation of Removal Document Submissions in Support of Asylum

Appendix X

Sample Testimony Questions Direct and Cross Prep for Applicant Direct Prep for Witness (Applicant’s Wife) Prep for Expert Witness

Appendix Y

Inadmissibility Grounds References 2017 Poverty Income Guidelines Public Charge Fact Sheet Unlawful Presence Chart

Appendix Z

Sample Motion to Reopen MTR Based on No Service of the NTA MTR Based on Ineffective Assistance of Counsel MTR Based on Changed Circumstances: Asylum

Index of Appendices 2

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix A-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix A-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix A-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix A-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix A-5

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix A-6

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix A-7

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix A-8

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix B-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix B-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix C-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix C-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix C-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix D-1

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix D-2

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix D-3

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix D-4

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix D-5

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix D-6

ANNOTATED CLIENT INTERVIEW CHECKLIST* If the client has received any documents from the INS, CIS, ICE, or CBP make a copy for the file. A.

CURRENT IMMIGRATION STATUS The following questions will help you determine the client's current immigration status. Be sure to examine any immigration documents the client might have. 1. When did the person last enter the United States? 2. Did s/he enter through an immigration check-point or port of entry? 3. Did he or she enter with a visa stamped in a passport? (If so, make a copy): a. What kind of visa was it? b. Has the authorized stay on the I-94 expired? When? c. Has the person, as far as she knows, violated the terms of her visa? On what date? d. If the person did not enter with a document, but the officers waived them through a checkpoint- get all the details, and possible witnesses. These questions will help you determine if the person is in the United States legally or illegally and when their unlawful status began, which is extremely important for finding out if the 3 and 10 year bars to immigration apply. See Unit 3. It will also help you decide if the person is eligible to adjust her status. See Unit 7. 4. Has the person filed any visa petitions with the INS/CIS?

Appendices

5. Did the person apply for an amnesty program or SAW in the past? 6. Has the person ever been before an immigration judge in the past? (Unit 10) If so, was the person: a. Ordered deported or excluded (under pre-IIRIRA law), or ordered removed? i. If ordered deported, excluded or removed, did the person leave the U.S.? ii. If ordered and left, did the person return to the U.S. after that? When? Illegally or legally? b. Granted voluntary departure? c. Allowed to remain in the U.S.? d. Did the person apply for some relief? e. Did the person attend all immigration hearings? 7. Has the person ever been ordered removed or granted voluntary departure in the past?

Appendix D-7

Tab Position 1

Immigrant Legal Resource Center June 2017

8. Is the person eligible for citizenship through naturalization? Has the person filed an application? On what date? B.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

FAMILY RELATIONSHIPS 1. Are or were any of the client's parents or grandparents U.S. citizens? If yes, when did that person live in the U.S.? The client may be a U.S. citizen. (Unit 17) 2. Does the client have a spouse or parent who received amnesty under one of the IRCA programs? The person may be eligible for Family Unity status. 3. Is the person married to or engaged to a U.S. citizen or lawful permanent resident? The person may be able to immigrate through her spouse. 4. Does the person have any children who are U.S. citizens? If yes, how old are they? A son or daughter over 21 years old may be able to file a visa petition for the parent. 5. Does the person have any brothers or sisters who are U.S. citizens. If yes, how old are they? Did a sibling previously file a petition for the person? The client's siblings may be able to file a visa petition. (but this won’t provide immediate relief from removal) 6. Is either of the person's parents a lawful permanent resident? The parent might be able to file a visa petition for the child. 7. Is the person a child who is under the jurisdiction of juvenile court? The person might be eligible for permanent resident status as a “special immigrant.”

C.

WORK HISTORY 1. Is the person currently employed? If yes, describe the job. Proving stable (or any) employment is usually an advantage in immigration cases. 2. Is the person working without authorization from a DHS immigration service bureau? 3. Can a labor certification be filed for this type of job? Would the employer be willing to file a labor certification? Labor certifications, especially for workers who do not have a college degree, may be difficult to get. Labor certifications are covered briefly in this manual at Unit 21.

Appendix D-8

Appendices

8. Has the person been the victim of domestic violence -- either by a parent or spouse? The person might be eligible to "self-petition" for a visa or for cancellation of removal under VAWA, and possibly a U visa.

D.

OTHER REMEDIES 1. How long has the person lived in the United States? What was the person's immigration status during this period? Document dates of all departures from the U.S. and reasons for absences. If a person has lived in the United States for a long time, she might be entitled to discretionary relief such as: voluntary departure; cancellation of removal [formerly suspension and 212(c); or registry. 2. Is the person afraid to return to her home country? If so, why? The person might be eligible to apply for political asylum and restriction of removal. 4. Is the person from a country that is currently experiencing political or social unrest? If so, has the government granted Temporary Protected Status (TPS) to people from that country? 5. Has the person suffered torture or does the person fear torture upon returning to his/her country of origin? (Torture Convention remedy) 6. Has the person been a victim of a crime? If so, did s/he suffer substantial physical or mental harm as a result of the crime and were they helpful in the criminal investigation or prosecution of the crime? (The person may be eligible to petition for a U visa.) 7. Was the person trafficked for labor or sex? Check labor conditions, wages, and restrictions- did the person come for the purpose of the labor? Is their passport kept by their employer? If any issues, check with an expert on T visas.

Appendices

E.

POTENTIAL PROBLEMS The questions below all refer to grounds of inadmissibility, which could bar a person from immigrating. Make sure to explain the law to the person before asking this question. Also, make sure to explain why you are asking this question before you ask it. 1. Has the person ever been arrested? Has the person ever been convicted of a crime? If so, what was the offense and the sentence? Help the person get all the court records from the conviction. 2. Has the person ever been ordered deported, excluded or removed? If so, when? Did she leave the U.S.? When did the person return? 3. Has the person ever been accused of having committed or actually committed visa fraud? Did he or she immigrate through a marriage that has ended?

Appendix D-9

Tab Position 1

Immigrant Legal Resource Center June 2017

4. What is the person's annual income? How many family members does she support? Is she capable of working? If the person might immigrate through a family petition, what is the petitioner's income and family size?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

5. Did the person use forged, altered or another person's documents to gain some immigration benefit or to work? Has the ICE started civil proceedings for document fraud? 6. Has the person ever helped another person enter the U.S. illegally? (alien smuggling) 7. Did the person ever falsely claim to be a U.S. citizen for any purpose? 8. Has the person lived in the U.S. without "being admitted" - i.e., entered without CBP or INS inspection? If so, for how long? 9. Has the person stayed longer than permitted on a nonimmigrant visa, or stayed after violating the terms of a nonimmigrant visa? If so, how, when and for how long? 10. Is the person in removal proceedings now? If so, have I considered all possible relief? a. b. c. d. e. f. g. h.

n. o.

[*This checklist was adapted by the ILRC from NILC's Immigrants' Rights Manual.]

Appendix D-10

Appendices

i. j. k. l. m.

political asylum cancellation of removal for persons who are not lawful permanent residents cancellation of removal for victims of domestic violence cancellation or suspension under NACARA for Salvadorans, Guatemalans and persons from Eastern bloc countries. registry adjustment of status [based on relationship to a U.S. citizen or LPR] cancellation of removal for persons who are LPRs or possible former 212(c) relief Other waivers for grounds of removal that might apply, such as 237(a)(1)(H), 212(h), etc. Temporary Protected Status family unity U visa T visa Deferred Action for Childhood Arrivals (check often for viability of such policies and legislation) A prosecutorial discretion request if no other relief Assessed whether voluntary departure is beneficial

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix D-11

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix D-12

Diagnostic Questions for Noncitizen Youth: Determining Potential Avenues for Legal Status 1. Is the child a U.S. citizen without knowing it? A. Anyone born in the U.S. or Puerto Rico is a citizen, and born in Guam, American Samoa, or Swains Island is a national who can’t be deported. B. If person born outside the U.S., ask two threshold questions to see if the person automatically is a U.S. citizen. If the answer to either might be yes, refer for immigration counseling. • Was there a U.S. citizen parent or grandparent at time of person’s birth? Or, • Before person’s 18th birthday, did both of these events happen (in either order): child became a permanent resident, and at least one natural or adoptive (but not step-) parent having some form of custody over the child is or becomes a U.S. citizen. (Tip: Encourage the parent to naturalize!) 2. Is the child currently under juvenile court jurisdiction (including delinquency) where the court has ruled that the child (a) cannot be reunified with one or both parents because of abuse, neglect or abandonment or a similar basis under state law and (b) that it would not be in the child’s best interest to be returned to the home country? The child may qualify for special immigrant juvenile status. • IMPORTANT: If possible, the child should stay under the jurisdiction of the court until the entire SIJS application is adjudicated, so watch out for youth aging out. If this is not possible, request that the court explicitly state that termination of jurisdiction is being done based on age. 3. Has the child been abused by a U.S. citizen or permanent resident spouse or parent, including adoptive, natural, or step-parent? Has the child’s parent been a victim of domestic violence by his/her U.S. citizen or permanent resident spouse? Consider VAWA relief. • Child doesn’t need to be under court jurisdiction, and may be residing with the other parent. • Child will need to show “good moral character.” Violent crimes will be a negative factor, but can be offset if there is a connection between the abuse and the bad conduct.

Appendices

4. Has the child been a victim of a serious crime or of human trafficking? Is the child willing to cooperate with authorities to investigate or prosecute the offense? Consider the S, T, or U visas. • These are some of the few forms of relief available even if the child has a drug trafficking delinquency disposition. 5. Does the child have a U.S citizen or permanent resident parent or spouse who is willing to petition for her? Investigate family immigration. • To immigrate through an adoptive parent the adoption must be completed by the child’s 16th birthday. These laws are complicated if the Hague Convention applies. 6. Does the child come from a country that’s recently experienced civil war, natural disaster, or political persecution? Investigate various forms of relief such as asylum and temporary protective status. 7. Did the child come to the U.S. before reaching the age of 16 and before June 15, 2007? Was she age 30 or younger as of June 15, 2012? Investigate Deferred Action for Childhood Arrivals (DACA). • Juvenile delinquency adjudications do not automatically bar an individual from qualifying, however, they can and will be considered as a matter of discretion. President Obama announced an expansion to DACA on November 20, 2014, intended to be implemented by February 18, 2015. However, due to a lawsuit, at the time of publication of this manual, this program has not been implemented. If the expansion goes into effect, it will remove the “age cap,” meaning applicants will no longer need to have been under 30 as of June 15, 2012, and move the deadline for when a person must have been in the U.S. up to January 1, 2010.

Appendix D-13

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix E-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix E-2

VIA FIRST CLASS MAIL *Date

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

U.S. Customs and Border Protection 1300 Pennsylvania Avenue, NW Attn: Mint Annex Building, FOIA Division Washington, D.C. 20229 RE:

Freedom of Information Act Request Name: * Alien Number: * Date of Birth: *

Dear Sir or Madam: I represent the above-named individual whose records I request under the Freedom of Information Act. Enclosed please find the following documents: 1. 2.

Form G-28 authorizing my representation of *; and Form G-639 Freedom of Information Act Request.

OR: Enclosed please find an original, notarized release form authorizing you to release information to my office. We seek information related to *Full Name*. The subject of this request may have had an incident in *City/State/Unknown* on or about *Month/Year/Unknown*. Please search any and all records of Customs and Border Protection, including electronic records, related to the above-named individual.

Sincerely,

* **/** Enclosure cc: *client

Van Der Hout, Brigagliano & Nightingale, LLP

Appendix E-3

Appendices

Thank you for your attention to this matter. Please do not hesitate to contact me should you require any further information.

VIA FIRST CLASS MAIL ** Executive Office for Immigration Review Office of the General Counsel ATTN: FOIA Office 5107 Leesburg Pike, Suite 2600 Falls Church, Virginia 22041 RE: *** A**

FOIA Request: Entire Record of Proceeding

Dear Sir or Madam: This law office and undersigned counsel represent the above-referenced Respondent, whose case was before the Executive Office for Immigration Review. Enclosed please find a Notice of Entry of Appearance as Attorney (Form EOIR-28), authorizing my representation of **. AND/OR Enclosed please find Form DOJ-361, Certification of Identity, authorizing release of Mr./Mrs. *’s records to my office. The subject of this request had a hearing before an immigration judge located in * on or about *. *He/she is investigating *his/her immigration case. *Explain any urgent circumstances here.* [optional]

Appendices

My client and I request that a copy of the entire Record of Proceeding be sent to my office, so that I may effectively represent my client. We also request copies of any audio tapes related to the subject of this request. A response will be expected within the 20 days authorized by statute. Thank you very much for your attention to this matter. Sincerely,

** */* Enclosure cc: * Van Der Hout, Brigagliano & Nightingale, LLP

Appendix E-4

Tab Position 1

Immigrant Legal Resource Center June 2017

VIA FIRST CLASS *or CERTIFIED* MAIL *

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

FOIA Clerk USCIS National Records Center P.O. Box 648010 Lee’s Summit, MO 64064-8010 RE:

Freedom of Information Act (FOIA) Request REQUEST FOR TRACK 3 PROCESSING ** A*

Dear Sir or Madam: This letter is a formal request under the Freedom of Information Act (FOIA), as amended (5 U.S.C. § 522). Enclosed please find Form G-639 for the above-named individual. I have also included Form G-28 authorizing my representation of Mr./Ms. * and a [a copy of photo identification for Mr./Ms.* verifying his/*her identity] OR [a notarized signature confirming [Mr*/Ms.’s] identity]. Under the law, we are certain this is all of the documentation required to process this request. We request copies of all written, photographic, electronic, computer, or recorded materials and all printouts in the file of Mr./Mrs. *, from USCIS, DACS, NCIC, CLAIMS, NIIS, and NAIL/IBIS databases.

Thank you for your attention to this matter. A response will be expected within the twenty days authorized by statute.

Sincerely,

*

Van Der Hout, Brigagliano & Nightingale, LLP

Appendix E-5

Appendices

In addition, our firm represents the above mentioned individual in removal proceedings, as evidenced by the attached hearing notice. Our client’s next hearing before the Immigration Court is scheduled for *. We therefore request that this FOIA be expedited and processed pursuant to the "Three-Track" FOIA processing system. Under the law, we are certain this is all the documentation required to process this request.

VIA FIRST CLASS MAIL * Freedom of Information Act Appeal USCIS FOIA/PA Appeals Office 150 Space Center Loop, Suite 500 Lee’s Summit, MO 64064-2139 RE: *client name A* NRC*

FREEDOM OF INFORMATION ACT APPEAL

Dear Sir or Madam: I am hereby appealing the withholding of a total of * pages of the *-page record, * of these pages having been withheld in their entirety, from the request for information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This appeal is made under the authority of 5 U.S.C. § 552(a)(6). Enclosed for your information please find a copy of the correspondence received from the U.S. Citizenship and Immigration Services withholding the above-mentioned pages. It is our position that, absent a complete list and detailed description of the withheld documents, together with a specific indication of what material is being withheld and in what manner, such withholding is unjustified. (Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974)).[1]

Appendices

Thank you very much for your attention to this matter.

Sincerely, * */* Enclosure cc: *client name Van Der Hout, Brigagliano & Nightingale, LLP [1]

Note from VBN: CIS frequently replied with a note in the cover letter that a Vaughn Index would not be appropriate. CIS would still usually provide additional information, but never the index. Advocates may want to consider removing the Vaughn index request from the template letter.

Appendix E-6

Tab Position 1

Immigrant Legal Resource Center June 2017

August 14, 2017 FOIA Appeals Police and Litigation Branch US Customs and Border Protection 799 Ninth Street, NW, Mint Annex Washington, DC 20229-1179 Re:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Freedom of Information Act (“FOIA”) Appeal, [**client name**]

Dear FOIA Officer: My office represents ** in his immigration matters, and a G-28 is attached. On DATE, our office submitted a Freedom of Information Act (“FOIA”) request on CLIENT’S behalf. In response to the above-referenced request, on DATE, your office sent a letter indicating that you were releasing 227 pages (163 in their entirety and 41 in part) and withholding 20 pages in full. However, your letter appears to be a template letter that is not complete. The letter states that 3 pages were referred to “[government agencies [sic] name]” and states that portions of the response are exempt pursuant to “5 U.S.C. § 552 [list exemptions used] of the FOIA.” Further, the letter says, “The following exemptions are applicable: Exemption [cite exemption]….Exemption [cite exemption]…Exemption [cite exemption].” A copy of your March 22, 2012 letter is attached for your reference. On behalf of NAME, I am writing to appeal the withholding of 41 partial pages and 20 full pages of his file. Your office has withheld portions of NAME’S file without providing a basis for the withholding.

Sincerely,

Attorney at Law

Appendix E-7

Appendices

Thank you for your prompt attention to this matter. Should you have any questions, please do not hesitate to contact me at XXX or via email at XXX.

Tab Position 1

Immigrant Legal Resource Center June 2017

An FBI Identification Record—often referred to as a criminal history record or a “rap sheet”—is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. The process of responding to an Identification Record request is generally known as a criminal background check. If the fingerprints are related to an arrest, the Identification Record includes name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. All arrest data included in an Identification Record is obtained from fingerprint submissions, disposition reports, and other information submitted by agencies having criminal justice responsibilities. The U.S. Department of Justice Order 556-73 establishes rules and regulations for the subject of an FBI Identification Record to obtain a copy of his or her own record for review. The FBI’s Criminal Justice Information Services (CJIS) Division processes these requests. Who May Request a Copy of a Record (or Proof That a Record Does Not Exist) Only you can request a copy of your own Identification Record. Individuals typically make this request for personal review, to challenge the information on record, to satisfy a requirement for adopting a child in the U.S. or internationally, or to satisfy a requirement to live, work, or travel in a foreign country (i.e., police certificate, letter of good conduct, criminal history background, etc.).

Appendices

Background Checks for Employment or Licensing If you are requesting a background check for employment or licensing within the U.S., you may be required by state statute or federal law to submit your request through your state identification bureau, the requesting federal agency, or another authorized channeling agency. You should contact the agency requiring the background check or the appropriate state identification bureau (or state police) for the correct procedures to follow for obtaining an FBI fingerprint background check for employment or licensing purposes. How to Request a Copy of Your Record Step 1: Complete the Applicant Information Form (pdf). • If the request is for a couple, family, etc., all persons must sign the form. • Include your complete mailing address. Provide your telephone number and/or e-mail address, if available.

Appendix F-1

Step 2: Obtain a set of your fingerprints. • Provide the original fingerprint card. Previously processed cards or copies will not be accepted. • Your name and date of birth must be provided on the card. Fingerprints should be placed on a standard fingerprint form (FD-258) commonly used for applicant or law enforcement purposes. • Include rolled impressions of all 10 fingerprints and impressions of all 10 fingerprints taken simultaneously (these are sometime referred to as plain or flat impressions). • If possible, have your fingerprints taken by a fingerprinting technician. This service may be available at a law enforcement agency. • To ensure the most legible prints possible, refer to the Recording Legible Fingerprints brochure.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Step 3: Submit payment. • Option 1: Obtain a money order or cashier’s check for $18 U.S. dollars made payable to the Treasury of the United States. Please be sure to sign where required. • Option 2: Pay by credit card using the Credit Card Payment Form (pdf). Don’t forget to include the expiration date of the credit card that you are using. • Important note: Cash, personal checks, or business checks WILL NOT be accepted. • Payment must be for the exact amount. • If the request is for a couple, family, etc., include $18 for each person. • If you are making multiple requests per person, include $18 for each request. Step 4: Review the FBI Identification Record Request Checklist (pdf) to ensure that you have included all the information we require to process your request. Step 5: Mail the required items listed above—applicant information form, fingerprint card, and payment—to the following address:

If we find no record, you will receive a “no record” response. If you do have a criminal history record on file, you will receive your Identification Record, or “rap sheet.” Note: Although the FBI employs the most efficient methods for processing these requests, processing times may take up to 12 weeks depending on the volume of requests received.

Appendix F-2

Appendices

FBI CJIS Division – Record Request 1000 Custer Hollow Road Clarksburg, WV 26306 What Happens Next

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix F-3

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix F-4

State Criminal Record Check (California) 1 In many states, such as California, the state summary records may be even more useful than the FBI records. They often are more complete than FBI records (e.g., someone whose FBI record shows no conviction may find a few convictions on their state summary record). Moreover, DHS usually does have access to the state records. The only disadvantages to getting the state records instead of the FBI records are that the state records may not show out-of-state convictions and do not reflect prior deportations. The California Department of Justice provides an automated service for criminal history background checks. All fingerprint submissions must be transmitted electronically by Live Scan digital submissions. To obtain a client’s California rap sheet, the client has to do the following: For IN STATE Residents:  Fill Out Request for Live Scan Service Form: Your client can obtain the form at fingerprint service locations, or at the following website http://ag.ca.gov/fingerprints/security.php

Appendices

Guidelines for Completing the From (BCIA RR8016) CATEGORY INSTRUCTION COMMENT 1) Type of Application Place a check mark or “X” in This is mandatory field and the Record Review Box must be completed. 2) Reason for Application: Write a brief explanation of Examples of explanation: why you need a copy of your Personal Use/Review or criminal history record. Verify Accuracy of Record. NEVER state on the form that you are requesting your record for immigration purposes. 3) Name of Applicant & Enter your full name, any Name, date of birth, and Personal Descriptors: known alias, date of birth, sex are mandatory fields sex, height, weight, eye & and must be provided. All hair color, place of birth, others (like social security social security number, number and CA driver’s California driver’s license license) are optional. number. 4) Applicant Address: Enter your home address. This is mandatory field and must be completed. 5) Daytime Telephone A telephone number is useful Enter telephone number you Number in helping to resolve can be reached at from problems which could result 1

For further information see: http://oag.ca.gov/fingerprints

Appendix F-5

Tab Position 1

Immigrant Legal Resource Center June 2017

8:00am to 5:00pm. Please in a delay in the processing of include the area code. your request  Get Fingerprints Taken: Fingerprinting services are available at a public applicant Live Scan site. To find a listing of sites and fees, see Applicant Live Scan Sites. 2 The certified business or agency will usually charge a small fee to take your fingerprints electronically and will submit them to the DOJ. NOTE: If living outside California, you must submit rolled fingerprints on paper fingerprint cards and pay all appropriate fees.  Pay Fee: Applicants must pay a $25 fee to the California Department of Justice. There is also a separate fee charged by the agency for the taking of your fingerprints. Contact the agency before going to find out how much they charge and the types of payment they accept. Agencies usually charge around $15-20.  Present Valid Photo ID: Applicants must present valid photo identification when being fingerprinted. Expired identification information will not be accepted.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

For OUT OF STATE Residents:  Print Application to Obtain Copy of State Summary Criminal Record: The form is available at http://ag.ca.gov/fingerprints/forms/BCII_8705.pdf. A sample is attached. Follow the instructions.  Get Fingerprints Taken: A standard 10-print fingerprint card with the applicant’s fingerprints must accompany the application. Your fingerprint card must contain your full name, date of birth, sex and return mailing address. Contact your local law enforcement agency for fingerprinting services.  Pay Fee: Applicants must pay a $25 fee to the California Department of Justice in the form of a personal check drawn on a U.S. bank, money order, certified check, or cashier’s check. NOTE: Applicants should request the copy of their CA criminal record for “personal verification” and should NOT say that it is for “immigration purposes.”  Present Valid Photo ID: Applicants must present valid photo identification when being fingerprinted. Expired identification information will not be accepted.  Mail Application: Applicants should mail the application, fingerprint card, and processing fee to:

2

For a complete list of Live Scan Sites see: http://ag.ca.gov/fingerprints/publications/contact.php. Although fingerprinting services are available at police departments and sheriff’s offices, they are also available at private businesses, like at UPS offices. To avoid potential problems, we suggest not going to a police or sheriff department to get your live scan.

Appendix F-6

Appendices

California Department of Justice Record Review Unit P.O. Box 903417 Sacramento, CA 94203-4170

After submission of form and fingerprints

Appendices

 You will receive a response from the DOJ to the mailing address you provided in your application. You can also designate someone else to receive your records response from the DOJ.

Appendix F-7

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix F-8

[INSERT LAW OFFICE, ADDRESS, CONTACT INFO] I.

AUTHORIZATION

This Agreement is between (hereafter You/Client) and [INSERT LAW OFFICE] (HEREAFTER LAW OFFICE NAME/We). By signing, You and LAW OFFICE agree to all the terms and conditions contained in this Agreement. You authorize LAW OFFICE to be your attorney under these terms and conditions and to provide the following legal services: Representation is limited to your removal proceedings in Immigration Court located in San Francisco, California. Representation does not include appeals to the Board of Immigration Appeals, to the United States Court of Appeals for the Ninth Circuit, or to the United States Supreme Court. Appellate representation may be considered separately, after removal proceedings in Immigration Court are over. II.

LAW OFFICE’s DUTIES A.

Services 1. LAW OFFICE will provide legal services only on the matter described above. LAW OFFICE’s obligations under this agreement end when we complete those services, or when we terminate or withdraw from our representation as described in PART IV below.

Appendices

2. Any attorney or other employee of LAW OFFICE, or our agents, or law students, can work on your case. The LAW OFFICE staff person(s) directly handling your case during our representation may or may not be an attorney, and may for example, be a law student. Your case, however, will be supervised by an attorney. 3. By signing this Agreement, You agree that LAW OFFICE may consult or cocounsel with other attorneys as may be needed in your case. LAW OFFICE’s consultation and/or co-counseling will not create any debt from You to the attorney(s) with whom we consult and/or co-counsel. B.

Communication 1. LAW OFFICE will attempt to keep You reasonably informed of the status of your case and advise You of important developments promptly and to the extent reasonably necessary to permit You to make informed decisions regarding your case. 2. LAW OFFICE will return to You all documents that You provided us but we may make and keep copies of those documents. LAW OFFICE will also provide You with copies of any legal pleadings we prepared on your behalf, if You request them.

Appendix G-1

Tab Position 1

Immigrant Legal Resource Center June 2017

III.

CLIENT’S DUTIES A.

Communication

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. You agree to notify LAW OFFICE immediately of any change of address or telephone number. Clients who have pending deportation or exclusion hearings are subject to deportation or exclusion in absentia if LAW OFFICE is notified of a hearing date but cannot communicate with the client. 2. If the opposing party – whether a person or agency or business or that party’s attorney contacts You in person or by telephone or by letter, You will not talk to them further about your case. You will notify LAW OFFICE immediately about this contact. LAW OFFICE cannot effectively represent You if You communicate with opposing parties and/or their attorneys about your case. B.

Cooperation You will cooperate fully with LAW OFFICE in the preparation and handling of your case. Your cooperation must include: • • • •

IV.

promptly and honestly providing all information and papers requested by LAW OFFICE; attending scheduled appointments; answering interrogatories and/or other requests made by the opposing party which we advise You that the law requires answering; appearing at hearings or trial and testifying when requested by LAW OFFICE or when we advise You that the law requires You to appear and testify;

TERMINATION OF LAW OFFICE’S REPRESENTATION OF YOU LAW OFFICE’S Right to Withdraw: LAW OFFICE may withdraw from and/or close your case, as may be appropriate under the circumstances, if: 1. LAW OFFICE has completed the services provided in this Agreement and/or LAW OFFICE has reasonably determined that further representation would not benefit You; 2. LAW OFFICE is not able to contact You despite reasonable efforts; 3. LAW OFFICE determines that any one or more of the following has occurred or is occurring: 1. You violated any of your duties described in Part III, above; 2. You have misrepresented or concealed material facts concerning the case, and/or You intend to give false testimony;

Appendix G-2

Appendices

A.

3. You direct us to file any paper or You insist on advancing a claim or a defense which we reasonably believe will subject LAW OFFICE to unwarranted sanctions or penalties; 4. You refuse to obey a court order which we have advised You to obey; 5. Your financial circumstances change significantly. B.

Your Right to Discharge LAW OFFICE 1. You may request that LAW OFFICE stop all further assistance to or representation of You and/or withdraw from the cases. LAW OFFICE will comply with your request in a manner consistent with the Rules of Professional Conduct.

V.

VII.

ATTORNEY FEES A.

YOU will not be required to pay any attorney’s fees but will be responsible for payment of all other costs, including filing fees, which are required for the legal work you are requesting.

B.

In some types of cases, the law provides that the winning party may make a claim against the losing party for their attorneys’ fees. In satisfaction for the value of LAW OFFICE’s legal services, You assign to LAW OFFICE any claim You may have against the opposing party for attorneys’ fees. You authorize LAW OFFICE to apply on your behalf for an award of attorneys’ fees and accept and keep any attorneys’ fees.

SPANISH VERSION OF THIS RETAINER

Appendices

A.

In the event this Retainer is provided to You in Spanish: You understand that although LAW OFFICE has made its best effort to accurately translate this document, if there is a conflict in the language or interpretation between the Spanish and English versions of this Retainer, the English version will control.

CLIENT SIGNATURE

LAW OFFICE AUTHORIZED SIGNATURE

CLIENT PRINTED NAME

LAW OFFICE PRINTED NAME

DATE:

DATE:

Appendix G-3

Tab Position 1

Immigrant Legal Resource Center June 2017

Helpful Procedures for Bond Hearings in Florence Immigration Court When a respondent with a case in Immigration Court turns in the Bond Redetermination Request form to ask for a bond hearing, the Court will have a bond hearing a few days later. A respondent may turn in the bond request form by giving it to one of the guards or an attorney or to the Florence Project. The form may be filed at any time, as soon as the respondent is ready to have a bond hearing. You don’t have to wait until the next hearing to give it to the Judge, unless you can’t get your documents before then.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

When you turn in the form, or at least one day before the bond hearing (if possible), it would be helpful to have three (3) copies of your documents or have the guards make the copies, so that one copy is filed with the Court, and one copy goes to the attorneys for DHS-ICE (the Department of Homeland Security’s office for Immigration and Customs Enforcement), and the respondent can keep a copy. It would be helpful to have a letter from a sponsor or relative to show you have a place to live, if you do bond out, and evidence that it is a good mailing address. Since the DHS attorney will check the mailing address before the bond hearing, it would be helpful to file some documents or records to show that your residence is a good mailing address, so you can get future notices and papers from the Courts and attorneys. Some examples of the kind of documents that could show a good mailing address can include copies of a utility bill (such as a copy of an electric or gas or water bill and/or a phone or cable bill), or a tax record, or a work record or pay stub, or a bank record or statement. (In other words, some record with that address printed on it that shows mail is delivered there.) Also, it would be helpful to the Court, and for everyone to get ready, if the respondent supplies some or all of the following information, which are typical questions the Judge would usually ask in order to decide if a bond can be set and to decide how much it should be. This way, we can be better prepared and speed up the process, if the Court and attorneys have this information ahead of time. You can fill out the Bond Worksheet and turn it in with your form or documents.

Appendices

Thank you.

Appendix H-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix H-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix H-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix H-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-5

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-6

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-7

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-8

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-9

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-10

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-11

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-12

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-13

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-14

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-15

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-16

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-17

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-18

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-19

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-20

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-21

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-22

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-23

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendices

Bond Proceedings

Appendix I-24

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix I-25

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix I-26

Mary Beth Kaufman, Esq. Law Offices of Stanton & Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 Phone: (415) 392-6161 Fax: (415) 392-8208

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Attorney for Respondent. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT FLORENCE, AZ

In the Matter of: XXXX XXXX,

) ) ) )

A xxx-xxx-xxx

)

IN SUPPORT OF BOND REQUEST

) ) )

Judge:

RESPONDENT’S

DOCUMENTS Respondent,

)

Hon. Anthony S.

Murry In Bond Proceedings. ) _________________________________ )

Hearing:

XXX X, 2010

Birth Certificate of Respondent’s U.S. citizen wife, California ID, College ID, Marriage Certificate, Letter of Support and Character (pp 1-4)

2.

Birth Certificate of Respondent’s X-year old United States Citizen daughter (p 5)

3.

Birth Certificate of Respondent’s X-year old United States Citizen son (p 6)

4.

Proof of Respondent’s wife enrollment in college and application for unemployment benefits (pp. 7-9)

5.

Letter of Support and Character from Respondent’s Sister-in-law with California ID (pp 10-11)

Appendix I-27

Appendices

1.

Letter of Support and Character from Respondent’s cousin with California ID (pp 12-13 )

7.

Letter of Support and Character from Respondent’s Sister-in-law with California ID (pp 14-15)

8.

Letter from Respondent’s daughter (p 16)

9.

Photos of Respondent with his children. (p 17)

Appendices

6.

Appendix I-28

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix J-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix J-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix J-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix J-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix J-5

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix J-6

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix K-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix K-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix K-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix K-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-5

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-6

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-7

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-8

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-9

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-10

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-11

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-12

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix L-13

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix L-14

November 2016 (updated) Frequently Asked Questions (FAQs) Internet Immigration Information (I³)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

In April 2015 the Executive Office for Immigration Review (EOIR) combined external facing internet applications into the Internet Immigration Information (I³, pronounced I-cubed) suite of products. The I³ suite includes EOIR’s electronic registry for attorneys and fully accredited representatives (eRegistry), electronic filing (eFiling), and electronic case information applications (eInfo). A centralized link to these electronic applications is located on the EOIR website homepage, in the “Action Center” next to the I3 symbol. More information on the I3 applications can be found below. Electronic Registry (eRegistry) Effective December 10, 2013, EOIR established a mandatory electronic registry for attorneys and fully accredited representatives (“eRegistry”). 1 eRegistry is an online process to collect information that EOIR uses to maintain a centralized information repository of registered attorneys and fully accredited representatives. It is part of a long-term agency initiative to create an electronic case access and filing system for the Immigration Court and the Board of Immigration Appeals (“Board”). All attorneys and fully accredited representatives are required to complete the registry process as a condition to practice before EOIR. Registry applicants must create online profiles and enter certain biographical information. Then, they must appear at an EOIR location to complete the required Department of Justice (“Department” or “DOJ”) identification validation process. Thereafter, each registered attorney or registered fully accredited representative (“registrant”) receives a unique EOIR ID number. Through eRegistry, EOIR ensures that each registrant is individually identified and associated with the registration information that he or she provided during registration.

Q: What is eRegistry? A: eRegistry is an online process to collect information that EOIR uses to maintain a centralized information repository of registered attorneys and fully accredited representatives. eRegistry is the first step in a long-term initiative to create an electronic case access and filing system within EOIR. Registrants receive an EOIR ID number. In order to be able to practice before an immigration court or the Board, all attorneys and fully accredited representatives must be registered with EOIR’s eRegistry.

1

The electronic registration requirement does not apply to representatives who appear before EOIR’s Office of the Chief Administrative Hearing Officer.

Appendix M-1

Appendices

At this time, registrants may choose to use eFiling to electronically file the Notice of Entry of Appearance as Attorney or Representative before the Board (“Form EOIR-27”) and the Notice of Entry of Appearance as Attorney or Representative before the Immigration Court (“Form EOIR28”) in some situations.

Q: Why should I register with eRegistry? A: All attorneys and fully accredited representatives must register with eRegistry in order to appear as a representative before the Immigration Court or the Board. eRegistry is part of a long-term plan to create an electronic case access and filing system for the Immigration Court and the Board. With the implementation of eRegistry, registrants are able to electronically file the Form EOIR-27, and the Form EOIR-28 in some situations, and attorneys and fully accredited representatives will be able to view certain client information, in the eInfo application which contains information similar to that available by telephone via the Automated Case Information Hotline (previously known as the “1-800 phone number”). Q: Who is required to register with eRegistry? A: All attorneys and fully accredited representatives must be registered in order to appear as a representative before EOIR’s Immigration Court and the Board. Law students, law graduates, reputable individuals, and accredited foreign government officials are not eligible for eRegistry at this time. In addition, because partially accredited representatives are only permitted to represent individuals before DHS, EOIR is not permitting those individuals to register. Q: What happens if I do not register? A: If an attorney or fully accredited representative who has cases pending with EOIR fails to register, EOIR may administratively suspend that individual from practicing before the agency. An attorney or fully accredited representative subject to administrative suspension for this reason can resume practicing before EOIR upon completing the registration process. While administrative suspension, on its own, is not disciplinary in nature, an unregistered attorney or fully accredited representative with multiple attempts to appear before EOIR may face disciplinary sanctions. See 8 CFR 1003.101 et seq.

Appendices

Q: Is it possible to appear in Immigration Court if I do not register? A: An Immigration Judge may permit an unregistered attorney or unregistered fully accredited representative to appear at one hearing, but this will occur only under rare and extraordinary circumstances. In order to request that an Immigration Judge allow him or her to appear at a hearing without having registered, the attorney or fully accredited representative must first, on the record, provide the Immigration Judge with the required registration information. In such circumstances, the attorney or fully accredited representative must complete the registration process without delay after the hearing at which he or she is permitted to appear. Q: Is it possible to appear before the Board if I do not register? A: No. Q: Who is an attorney for the purposes of eRegistry? A: EOIR defines an attorney as “any person who is eligible to practice law in and is a member in good standing of the bar of the highest court of any state, possession, territory, or commonwealth of the United States, or of the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law.” 8 C.F.R. §1001.1(f)

Appendix M-2

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: Who is a fully accredited representative for the purposes of eRegistry? A: A fully accredited representative is a non-attorney who is designated by a recognized organization and who the Board has accredited to represent individuals before both DHS and EOIR. All accredited representatives must be affiliated with an organization that has received recognition by the Board. See 8 C.F.R. §§ 1001.1(j), 1292.1(a)(4) and 1292.2(d)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: Do partially accredited representatives, law students, law graduates, reputable individuals, or accredited foreign government officials need to register? A: No. At this time, EOIR is only requiring attorneys and fully accredited representatives to register. Please note that partially accredited representatives, law students, law graduates, reputable individuals, or accredited foreign government officials will not be able to register at this time and should not attempt to do so. Q: Why aren’t partially accredited representatives required to register? A: At this time, EOIR is only requiring registration for those representatives who are permitted to practice before EOIR’s Immigration Court and the Board. Since partially accredited representatives are only permitted to represent individuals before DHS, EOIR is not permitting those individuals to register. Q: Does a law firm or recognized organization need to register? A: No. EOIR’s regulations provide that individual attorneys or fully accredited representatives, not law firms or recognized organizations, represent individuals. Accordingly, law firms and recognized organizations are not able to register and should not attempt to do so. Q: When can I register with eRegistry? A: Attorneys and fully accredited representatives were able to begin registering with eRegistry on June 10, 2013. Attorneys and fully accredited representatives who are not currently registered with eRegistry and who wish to practice before EOIR should register. Q: How do I register with eRegistry?

Attorneys and fully accredited representatives begin the registration process by selecting their relevant account type, creating a UserId and password, and answering password-related security questions. Next, attorneys and fully accredited representatives follow the on-screen instructions to enter and submit the requested information. After completing his or her online submission, an attorney or fully accredited representative must appear at an immigration court location or the Board within 90 days to present photo identification, so that EOIR can verify the registry applicant’s identity. Once that step is completed, EOIR will notify the registry applicant that his or her account has been activated.

Appendix M-3

Appendices

A: Registration is a two-step process, which includes online submission of required information and an in-person appearance at an EOIR location to validate the registry applicant’s identity to EOIR. Registry applicants are responsible for beginning the first step of the eRegistry process by submitting information online. Registration is complete once EOIR validates the identity of a registry applicant.

Please see https://www.justice.gov/eoir/eregistry-program for more information about the photo identification process. Q: What information do I need to provide when registering? A: Attorneys: EOIR requires that attorneys provide the following information when registering: • • • • • •

name; date of birth; business address(es); business telephone number(s); e-mail address; and bar admission information (including bar number, if applicable) for all the jurisdictions in which they are licensed to practice, including those in which they are inactive.

Please note that if an attorney is licensed in a jurisdiction that does not provide bar numbers, he or she will not be required to submit a bar number for that jurisdiction. Attorneys may also enter the name of their business or law firm, though the resulting eRegistry account will be for the individual attorney and not the business or law firm. Accredited representatives: EOIR requires that fully accredited representatives provide the following information when registering: • • • • • •

name; date of birth; name(s) of all the recognized organization(s) with which the representative is fully accredited; business address(es); business telephone number(s); and e-mail address.

Appendices

Q: What happens after I submit my information? A: EOIR will process the information and communicate with the registry applicant via e-mail. First, EOIR will send an e-mail to the registry applicant with instructions for the applicant to appear at an immigration court location or the Board to complete the identity validation process required by DOJ security standards. After the registry applicant successfully completes the identity validation process, EOIR will then send an e-mail notifying the registrant that it has activated his or her account, and will provide an EOIR ID number. Q: Why is there a requirement to show government-issued photo identification at a physical immigration court location or the Board? A: Registry applicants are required to show government-issued photo identification at a physical EOIR location so that EOIR personnel can complete the individual’s identity verification process prior to providing that individual access to a database that contains Personally Identifiable Information (PII). EOIR takes the protection of and access to PII seriously, and requiring a visual in-person identity check is a critical step in safeguarding this information.

Appendix M-4

Tab Position 1

Immigrant Legal Resource Center June 2017

Please see https://www.justice.gov/eoir/eregistry-program for more information about the photo identification process. Q: What information technology security mechanisms does EOIR have in place to protect personal information used in the eRegistry process?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A: Access to eRegistry will be limited to those attorneys and fully accredited representatives who have completed the identity validation step. eRegistry requires all users to enter a UserID and password for each session. Each session will occur on an encrypted connection to protect data during transmission. The database will be stored on a fully secured server created and administered in compliance with the Federal Information Security Management Act of 2002. A user will only have access to his or her own personal information. In addition, the method of generating and maintaining UserIDs and passwords is one of numerous safeguards EOIR uses to protect PII information. Registrants should contact EOIR immediately at [email protected] if they suspect their account has been compromised. Please see https://www.justice.gov/eoir/eregistry-program for more information about the photo identification process. Q: I live and practice in a remote location that is not near any immigration court location or the Board. Where do I go to verify my identity? A: All registry applicants are required to appear in person at a physical EOIR location to comply with the identity verification requirement. They may choose any designated EOIR location at which to appear. Please see https://www.justice.gov/eoir/eregistry-program for more information about the photo identification process. Q: Why doesn’t EOIR allow for identity verification via video teleconference? A: DOJ Order 2610.2B requires that identity verification be done in person. EOIR has been advised to apply the same standard for this process as is used for government and contractor personnel. Accordingly, in order to meet federal identity verification requirements for permitting electronic access to PII, all registry applicants must appear in person at a designated EOIR location.

Q: Are there specific dates and times for practitioners to come for identity verification? A: In general, the identity verification may be completed at an immigration court location or the Board during regular filing hours. Please see http://www.justice.gov/eoir/engage/eRegistration.htm for more information about the photo identification process in general, and please see https://www.justice.gov/eoir/eregistryprogram for information about identity verification at the immigration courts and the Board. The Board is also performing identity verification. The Clerk's Office is open weekdays from 8:00 a.m. to 4:30 p.m., excluding Federal holidays, to receive filings and to perform identity verification of registrants who have already completed the online registration and received an email notification that their account request has been submitted to EOIR for processing.

Appendix M-5

Appendices

Please see https://www.justice.gov/eoir/eregistry-program for more information about the photo identification process.

Q: Will an online directory of all registered attorneys and fully accredited representatives be publicly available? A: No. EOIR will not have an online directory of registrants available to the public. Q: What is the EOIR ID number? A: The EOIR ID number is a unique identifier given to each registrant. Each registrant is required to include his or her EOIR ID number when filing a Form EOIR-27 or a Form EOIR-28, whether filing electronically or on paper forms. Q: How long after registering will I have to wait to use the system? A: After registering, an attorney or fully accredited representative must appear at an EOIR location to present photo identification so that EOIR can verify the registry applicant’s identity. Once that step is completed, EOIR will notify the registrant by e-mail that his or her account has been activated and provide him or her with an EOIR ID number. Q: After I register, will I be able to file electronic versions of the Form EOIR-27 and the Form EOIR-28? A: Yes. Attorneys and fully accredited representatives will have the option to electronically file a notice of entry of appearance using either the Form EOIR-27 or the Form EOIR-28. If registrants file electronically, they will not need to file paper versions of these forms. Registrants who electronically file the Form EOIR-27 or the Form EOIR-28 are still required to serve DHS with a printed copy of the completed form. Electronic filing is not mandatory and EOIR will also continue to accept paper submissions of the Form EOIR-27 and the Form EOIR-28. At this time, immigration practitioners who are not required to register will not be able to file these forms electronically and must enter their appearances using the paper Form EOIR-27 or Form EOIR-28. Q: Are there any instances where EOIR will not accept an electronic filing of a Form EOIR-27 or Form EOIR-28?

Appendices

A: Yes. Form EOIR-27: Attorneys and fully accredited representatives filing the Form EOIR-27 with appeals from the following decisions may not electronically submit the Form EOIR-27 at this time: • •

decisions involving fines and penalties, 8 C.F.R. § 1003.1(b)(4); and decisions of adjudicating officials in practitioner disciplinary proceedings, 8 C.F.R. § 1003.1(b)(13).

Attorneys and fully accredited representatives filing the Form EOIR-27 with appeals from the following decisions should not electronically submit the Form EOIR-27 unless the DHS has transferred the record to the Board: • • •

appeals from a decision of a DHS officer, 8 C.F.R. § 1003.1(b)(5); decisions on denials of advance permission to enter the United States, 8 C.F.R. § 1003.1(b)(6); and decisions of a DHS district director regarding bond. 8 C.F.R. § 1236.1(d)(3)(ii).

Appendix M-6

Tab Position 1

Immigrant Legal Resource Center June 2017

The Board will reject the electronic submission of the Form EOIR-27 for cases that DHS has not transferred the record to the Board. Form EOIR-28: Attorneys and accredited representatives filing the Form EOIR-28 in the following situations may not electronically submit the Form EOIR-28 at this time: • • • • • • • • •

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

prior to the filing of a Notice to Appear with the immigration court; bond redetermination requests made before the filing of a Notice to Appear with the immigration court.; motions to reopen, 8 C.F.R. § 1003.23; motions to reconsider, 8 C.F.R. § 1003.23; motions to recalendar proceedings that are administratively closed; motions to substitute counsel; cases which are pending on appeal before the Board (a Form EOIR-27 should be filed with the Board); cases in which there are more than one open proceeding; and disciplinary proceedings, 8 C.F.R. § 1003.106(a)(2)(iii).

Attorneys and fully accredited representatives who electronically file a Form EOIR-28 close to a hearing may be required to complete a paper Form EOIR-28 at the hearing. Attorneys and accredited representatives who electronically file a Form EOIR-27 or a Form EOIR-28 are still required to serve DHS with a printed copy of the completed Form EOIR-27 or Form EOIR-28. Q: Does electronic filing of Form EOIR-27 or Form EOIR-28 notify DHS of my representation of an alien? A: No. Attorneys and fully accredited representatives who electronically file a Form EOIR-27 or Form EOIR-28 are still required to serve DHS with a printed copy of the completed Form EOIR-27 or Form EOIR-28. They will be able to print a copy of the electronically completed form to meet this requirement.

A: Yes. The filing of a Form EOIR-28 on behalf of an alien constitutes entrance of appearance for all proceedings, including removal and bond. Once an attorney or fully accredited representative has made an appearance, that individual has an obligation to continue representation until such time as a motion to withdraw or substitute counsel has been granted by the immigration court. Q: If I have registered with EOIR, can I update or change my address(es) in the eRegistry? A: Yes. Registrants can add a new address to the eRegistry by logging into their eRegistry account. Please note that adding a new address to eRegistry does not effectuate an address change with the Immigration Court or the Board.

Appendix M-7

Appendices

Q: Will I still need to file with the Immigration Court a motion to remove myself as the named representative of an alien?

Q: Do I need to file a new Form EOIR-27 or Form EOIR-28 to effectuate an address change with EOIR? A: Yes. Practitioners are under an obligation to notify the Immigration Court and the Board of any change in their address. EOIR will continue to send all official case-related correspondence to the address included on the most recent Form EOIR-27 or Form EOIR-28 in each of the practitioners’ cases. EOIR requires immigration practitioners to submit a separate Form EOIR27 or Form EOIR-28 for each of their cases to ensure that each case file reflects the most current address. Q: Can I effectuate an address change with EOIR through eRegistry? A: Yes. Registrants may change their addresses electronically by completing a two-step process. First, registrants must log in to their eRegistry account and add the new address to their profile. Second, registrants must then electronically file the Form EOIR-27 or the Form EOIR-28 in each of their cases using the newly added address and checking the “new address” box on the form. As with all submissions of the Form EOIR-27 or the Form EOIR-28, registrants are still required to serve DHS with a printed copy of the completed Form EOIR-27 or Form EOIR-28. Registrants should note that adding a new address to their eRegistry profiles will not serve to update their address with the Immigration Court or the Board unless and until the Form EOIR-27 or the Form EOIR-28 has been filed in each of their cases. Similarly, registrants who choose to file a paper Form EOIR-27 or Form EOIR-28 to update their address with the Immigration Court or the Board, will still need to add that new address to their Registry profile by logging into their eRegistry account and adding the new address to their profile. In matters in which EOIR does not yet accept electronic filings of the Form EOIR-27 or the Form EOIR-28, registrants will need to file paper versions of those forms with the Immigration Court or the Board to complete the address change.

Appendices

Q: If I file electronically with the Immigration Court, will I be able to update my client’s address electronically? A: No. The submission of a Form EOIR-28 does not update the alien’s address in EOIR’s records. To update the alien’s address, the alien or their representative should submit an Alien’s Change of Address Form/Immigration Court (“Form EOIR-33/IC”) to the Immigration Court. Please see the instructions to the Form EOIR-33/IC for further information. Q: Do other government entities have access to eRegistry? A: No. Only EOIR will have access to the information entered through eRegistry. EOIR will, however, continue to share case-related representative information contained in the EOIR case system database with other government entities as allowed by the Privacy Act and the EOIR system of records notice.

Appendix M-8

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: Can my paralegal/assistant access my account? A: While EOIR cannot prevent registrants from sharing their UserIDs and passwords, it should be noted that registered attorneys and registered fully accredited representatives will be held responsible for any and all activity conducted under their account.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: Who do I contact for technical assistance? A: For technical assistance, please contact EOIR at [email protected]. Q: When will I be able to submit motions via an online electronic filing process? A: At this time, EOIR does not have a process in place to electronically submit motions online, nor does it have a date by which such a process may be implemented. Q: When will I be able to view my client’s Record of Proceedings online? A: At this time, representatives do not have the ability to review a Record of Proceedings electronically, and EOIR does not have a date by which such a capability might be implemented. Q: Why did I get an e-mail message from EOIR stating that my eRegistry account has been deactivated? A: EOIR deactivated your eRegistry account due to the lack of activity on the account for an extended period of time. EOIR sends a 30-day warning via e-mail prior to the deactivation of an account. The 30-day warning e-mail will be sent each time an account is nearing deactivation. Q: What does it mean to be deactivated? A: Deactivation means that you will no longer have access to the online functionality of eRegistry. The online functionality of eRegistry accounts becomes inactive after an extended period of time of no account activity. In order to keep your account in active status, please login to your eRegistry account regularly. Q: Can I still practice before the immigration court and before the Board if my eRegistry account has been deactivated?

Q: How do I reactivate my eRegistry account? A: In order to reactivate your account, please send the following information to [email protected]: (1) your name, (2) date of birth, and (3) the telephone number that is linked to your eRegistry account. Once EOIR has processed your information and reactivated your account, you will receive an email noting that your account has been returned to active status.

Appendix M-9

Appendices

A: Yes, you can still practice in immigration court and before the Board if your eRegistry account has been deactivated. Deactivation means that you will no longer have access to the 3 online functionality of I .

Q: I’ve been using my EOIR ID in EOIR’s immigration courts regularly with no problem, why do you have a requirement that there be activity in my online account if I am already active in immigration court? A: Periodic logins are necessary to preserve the security of eRegistry. It is up to each user to preserve their account. Q: Once I have my EOIR ID I can practice in immigration court or before the Board and submit paper filings, so why should I bother with an online account? A: Registration in eRegistry is a mandatory requirement to practice before EOIR’s immigration court and the Board. Further, eRegistry is part of a broader plan concerning electronic case access and filing for the Immigration Court and the Board. Currently, registrants are able to electronically file the Form EOIR-27 and the Form EOIR-28 in some situations and using eInfo view case related information online that is similar to that available by telephone via the Automated Case Information Hotline (previously known as the “1-800 phone number”). Q: I’ve changed law firms or mailing addresses, but the old address is still listed. Why can’t I delete my old address? A: Updating an address in eRegistry does not automatically update previously filed forms. However, eRegistration users are now able to modify or remove existing addresses

Appendices

associated with an account. Please go to the User Profile screen where each address entered now has links that permit users to modify or remove an address. Users are permitted to have more than one address. Please take care to choose the correct address when filing a Form EOIR-27 or 3 Form EOIR-28 through I . Q: My mail has been sent to the wrong mailing address, what can you or I do about that? A: Please check to see that you have properly updated the address information for each of your cases pending before the immigration court and/or the Board. Updating your account information in eRegistry does not automatically update the address associated with your client files at EOIR. You must submit a new Form EOIR-27 or Form EOIR-28 with your updated address information for each of your pending cases. Please also verify that your mailing address in eRegistry is correct. If it is correct, please contact the sending office. If it is not correct, please add the correct address. Q: What web browser should I use to view the eRegistration application? Can I use my mobile device? A: The eRegistration application may be accessed using Internet Explorer (i.e., v8.0 or higher) and Firefox (two most current versions) web browsers. Please note, eRegistry is not optimized for mobile device usage. Q: I want a different e-mail address associated with my eRegistry account, how can I change it? A: To update your eRegistry account e-mail address, please follow the steps below: 1. Go to the eRegistry website (https://portal.eoir.justice.gov) 2. Log into the system by clicking the Login link

Appendix M-10

Tab Position 1

Immigrant Legal Resource Center June 2017

3. 4. 5. 6.

Click “User Profile Management” link On the User Profile page, click the “Edit” link in the User Information section Update your e-mail address; and Click the “Save” button.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Please note, these directions relate to the personal account e-mail address and will be the one which EOIR will use to relay account information to you. This is separate from the “profile” email address you will have for each firm affiliation. Q: I practice in multiple locations, so can I have more than one physical mailing address? How do I add a second address? A: Yes, multiple addresses are allowed in eRegistry. To add a new profile address, please follow the steps below: 1. 2. 3. 4.

Go to the eRegistry website (https://portal.eoir.justice.gov) Log into the system by clicking the Login link Click “User Profile Management” link On the User Profile page, click “Add New Firm” link in the Firm Affiliation(s) section (for attorney), or click “Add New Organization” link in the Organization Affiliation(s) section (for fully accredited representative) 5. Enter your additional address information 6. Click the “Save” button.

Q: I’m trying to electronically file a Form EOIR-27 or Form EOIR-28, but all I see on the eRegistry website is “password maintenance.” What do I need to do to electronically file my forms? Where is the link? A: In order to get to the applications that allow you to electronically file a Form EOIR-27, Form EOIR-28 or to add personal information you must first set up your password security questions. To set up those questions, use the password maintenance link. Once you have set up your password questions you will be able to see multiple applications: “eInfo”; “File Electronic Forms”; “Password Maintenance”; and “User Profile Maintenance.” Please follow the steps below.

6. 7. 8. 9. 10. 11. 12.

Visit the EOIR website: https://portal.eoir.justice.gov Click the "Accept" button Click the "Login" link on the right hand side of the screen Enter your User ID/Password on the Login screen Click the "Password Maintenance" link, which should be the only main link displayed on the page Click the "Next" button on the new page Enter your current password Provide answers to three questions, click the "Next" button On the next screen, provide answers to three questions; click the "Next" button Click "Finish." You may see a popup window prompt you to confirm to close the window - if so, click "Yes." The window closes. Click "Log Off" on the next window Click "here" in the "Click here to login again" window

Appendix M-11

Appendices

1. 2. 3. 4. 5.

13. Enter your User ID/Password on the login screen 14. With the successful login, you should be able to see links to multiple applications: “eInfo,” “File Electronic Forms,” “Password Maintenance,” and “User Profile Maintenance” 15. Select the “File Electronic Forms” link to file your EOIR-27 or EOIR-28 electronically Q: I have recently legally changed my name. What do I need to do to change my name in eRegistry? A: If you have an account under one name but have, since registering, legally changed your name, please mail directly to EOIR a certified copy of the name change order. EOIR staff will contact you via e-mail once your certified name change order has been received and processed. Please use the below mailing address: U.S. Department of Justice Executive Office for Immigration Review Office of Communications and Legislative Affairs 5107 Leesburg Pike, Suite 1902 Falls Church, VA 22041 Electronic Filing (eFiling) Q: What forms or documents can I electronically file with EOIR at this time? A: Currently, registrants are able to electronically file the Form EOIR-27 and the Form EOIR28 in some situations. Q: When will other forms be added to the eFiling system? A: This is an ongoing effort. As time and resources allow, EOIR will add additional forms for electronic filing.

Appendices

Q: I heard that you already have an electronic filing pilot run by the Office of the Chief Administrative Hearing Officer (OCAHO). Can you provide more information on that? A: OCAHO’s eFiling pilot program enables parties meeting the eligibility requirements to file and receive OCAHO case-related documents by email in Immigration and Nationality Act (INA) § 274A (employer sanctions), INA § 274B (immigration-related unfair employment practices) and INA § 274C (document fraud) cases. Once a case has been assigned to an OCAHO Administrative Law Judge (ALJ), and the answer has been filed, the parties will receive a letter from the ALJ offering them the opportunity to participate in the pilot project. To be accepted into and use the pilot project's email filing process, both parties must agree to participate in the pilot, and must submit the registration and certification form. Once the case is accepted into the pilot project, the ALJ will issue an Order Directing Parties to File Case Documents by Email. All future pleadings and orders in the case must then be filed and served via email. OCAHO plans to use the information gleaned from the pilot program to develop a permanent, online, web-based e-filing program.

Appendix M-12

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: How is the OCAHO e-filing pilot program separate and distinct from EOIR’s eRegistry? A: OCAHO’s electronic filing (e-filing) pilot program is independent from EOIR’s eRegistry and the filing of Forms EOIR-27 and EOIR-28. OCAHO’s e-filing pilot enables parties (who have registered and certified with OCAHO) to file and receive OCAHO case-related documents by email. OCAHO’s pilot program is not an online, web-based system. Instead, for those cases enrolled in OCAHO’s e-filing pilot program, filings with OCAHO, service of pleadings on other parties and receipt of court orders are accomplished by email. OCAHO is conducting this pilot to streamline the submission and receipt of case-related documents for parties and reduce the time and expense incurred with paper filings.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Electronic Case Information (eInfo) Q: What is eInfo? A: The Electronic Case Information application (eInfo) is a web-based application that allows registered attorneys and fully accredited representatives to view their clients’ case information. The information provided by the eInfo application is similar to that which is currently available by telephone via the Automated Case Information Hotline (previously known as the “1-800 phone number”). Q: Will I be able to see all of my cases? A: Attorneys and fully accredited representatives who have registered and received an EOIR ID will be able to view their client’s case information for all of their cases for which they have entered an appearance (Form EOIR-27 or Form EOIR-28) using their EOIR ID number. For cases that a user has linked to his or her EOIR ID, the information provided by the eInfo application will be similar to the information provided by the Automated Case Information Hotline for those cases. Registered attorneys and fully accredited representatives will not be able to view cases that are not linked to EOIR ID numbers unless they submit an updated Form

Q: How is the available information the same as what is currently available by telephone via the Automated Case Information Hotline (previously known as the “1-800 phone number”)? A: Like the Automated Case Information Hotline, the eInfo application provides information on future hearings, case processing information for asylum applications, 2 decision information, and 2

Specifically, the eInfo application shows the number of days elapsed since the alien filed an asylum application, excluding any delays requested or caused by the alien. Please note that when adjudicating employment authorization applications, U.S. Citizenship and Immigration Services calculates the 180-day Asylum EAD Clock, which measures eligibility for employment authorization for asylum applicants. The number of days on the 180-day Asylum EAD Clock may be different from the number shown on this screen. For information on the calculation of employment authorization eligibility, please refer to the 180-

Appendix M-13

Appendices

EOIR-27 or Form EOIR-28 containing their EOIR ID for these cases. Provided that the case is associated with the EOIR ID, both primary and secondary attorneys and representatives will be able to view their cases, and cases that are at both the immigration court and Board will be included.

case appeals information. The decision information includes immigration judge decisions as well as case appeal decisions and decisions on Motions to Reopen (immigration court or Board jurisdiction). For future hearings, the date, time, type of hearing, hearing location and name of the immigration judge are provided. Q: How is the available information different from what is currently available by telephone via the Automated Case Information Hotline (previously known as the “1-800 phone number”)? A: The main difference between the eInfo application and the Automated Case Information Hotline is that eInfo, for a given case, provides information on all proceedings, not just the latest proceeding. For example, if there was a change of venue, that information is given on the prior proceeding, as well as the current proceeding. If there are multiple case appeals, every case appeal decision is provided, whereas the Automated Case Information Hotline only gives information on the latest case appeal. The same is true for motions to reopen. In addition, if the same alien has had multiple charging documents, the Automated Case Information Hotline only provides information on the case with the most recent charging document. In contrast, with certain restrictions, the eInfo application will provide information on past cases as well as long as those past cases have been associated with the user’s EOIR ID. One improvement to the eInfo application over the Automated Case Information Hotline is that only the registered attorney or fully accredited representative can see a list of his or her clients associated with their EOIR ID number. The list can be searched by the client’s name as well as by alien registration number. The list is also sortable and can be filtered by case status (“Pending,” “Complete,” or “All”). eInfo also contains a calendar function. However, unlike the Automated Case Information Hotline, eInfo provides information in English, whereas the Automated Case Information Hotline provides information in either English or Spanish.

Appendices

Q: What information will be available on the calendar function? A: The calendar function shows future immigration court hearings for the registered attorney or fully accredited representatives’ clients (individuals for which the attorney or representative has filed an appropriate Form EOIR-28 and with which the attorney or representative has associated his or her EOIR ID number). The calendar will show either a monthly, weekly, or a daily view. The immigration court hearing information provided is the same as what the Automated Case Information Hotline provides: the date, time, type of hearing, hearing location, and immigration judge. While the Automated Case Information Hotline can only provide this information for a single alien at a time, eInfo’s calendar view gives the opportunity to see all hearings for a given day, week, or month. If there are multiple clients for a single hearing, they will be grouped together in one block. If the attorney or fully accredited representative has immigration court hearings at different hearing locations, the calendar can be filtered to show all hearings, or only one hearing location at a time.

day Asylum EAD Clock Notice, available at www.uscis.gov or at an immigration court clerk’s window.

Appendix M-14

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: When I am on the calendar screen, I clicked on last month and I do not see any hearings, even though my clients had several hearings last month, why is this? A: The calendar function only shows future hearings, so past hearings are no longer viewable on the calendar.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: Will I be able to view all appeals or just information for specific cases? 3 A: Those with an I account can view appeals and motions related to District Director (DD) and Immigration Judge (IJ) decisions for cases in which the attorney or accredited representative have entered an appearance (Form EOIR-27or Form EOIR-28 using their EOIR ID number. Appeal and motion information associated with the alien registration number (ANumber) will also be available. BIA information for IJ appeals may include the following appeal types: Appeal or Motion to Set Aside Appeal of IJ MTR Bond Appeal Bond MTR Reconsider Bond MTR Reinstate Bond MTR Reopen Case Appeal CDR (Continued Detention Review) Appeal Circuit Court Remand Interlocutory Appeal MTR BIA Reasonable Cause Appeal Special Circumstances Appeal Zero Bond Appeal MTR BIA – REC MTR BIA – REI MTR BIA – REO

DD appeals information may include the following appeal types: • • •

DD 212; DD Bond; and DD Visa

Q: What type of IJ appeal information is available for me to view and obtain? A: Appeal information related to the selected case is available for viewing on the “My Cases” page by clicking on the “Details” tab to the left of each A-Number. A list of proceedings, with detailed information (see “Details” tab affiliated with each proceeding), will appear in the “Proceeding Information” section. Appeal information is then available by clicking on the “Details” tab. The appeal information available under “Details” includes: Appeal Type, Appeal

Appendix M-15

Appendices

• • • • • • • • • • • • • • • • •

Due Date, Appeal/Motion Filed on Date, Alien Brief Due Date (if available), Alien Brief Filed on Date (if received), DHS Brief Due Date (if available), DHS Brief Filed on Date (if received), BIA Decision Date, and Link to BIA Decision (if available, an active link to that BIA Appeal Decision File will appear; if the BIA Appeal Decision File is not available, the text “Not Available Yet” will appear). “My Cases” is searchable by A-Number or by name. Note: Affiliated DD Appeal information, if available, will appear in the “DD Appeal Information” section. Q: What type of information is available for me to view and obtain in My DD Appeals? A: Appeal decision information may be available for DD Appeals. On the “My Cases” page, scroll down to the “My DD Appeals” section. Information relating to the DD Appeal includes: A-Number, Beneficiary/Applicant Name, DD Appeal Type, Date Appeal Filed at DHS, Date Appeal Received at BIA, BIA Decision Date, and Link to the BIA Decision (if available, an active link to that BIA Appeal Decision File will appear; if the BIA Appeal Decision File is not available, the text “Not Available Yet” will appear). The DD appeal case types include: DD Visa, DD 212, and DD Bond appeals. “My DD Appeals” is searchable by ANumber or by Beneficiary/Applicant Name. Q: What is the availability of the electronic copies of the BIA decisions and if available the Immigration Judge Decisions? A: Decision documents will be available as soon as practicable after the decision date. If there is a question about a document’s availability, please email [email protected] for assistance. Please note that decisions that pre-date 2002 may not be available in electronic form. To obtain a copy of decisions not available within eInfo, a Freedom of Information Act (FOIA) request should be made in accordance with the procedures noted at: https://www.justice.gov/eoir/foia-facts.

Appendices

Q: I saw one of my cases on the “My Cases” screen, however it is no longer there, why do I no longer see the case? A: The “My Cases” screen, by default, only shows pending cases. If the immigration judge has issued a decision and your case is completed, it would not appear in the default setting. If you would like to see completed cases or all cases you should click on the button to filter cases as either “Completed” or “All”. Q: I do not see all of my cases, why not? A: You must first associate your cases with your EOIR ID by filing a Form EOIR 27 or Form EOIR 28 in order to be able to access the case information through the eInfo application. If you have not associated the case with your EOIR ID, you will not be able to see any case related information. Q: I still have questions, where can I get help? A: For assistance regarding the eRegistry, eFiling, and eInfo applications, please contact EOIR at [email protected].

Appendix M-16

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix M-17

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix M-18

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix N-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix N-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix O-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix O-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-5

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-6

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-7

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-8

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-9

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-10

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-11

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-12

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-13

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-14

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-15

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-16

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-17

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-18

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-19

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-20

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-21

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-22

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-23

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-24

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-25

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-26

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-27

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-28

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-29

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-30

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-31

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-32

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-33

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-34

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-35

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-36

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-37

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-38

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-39

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-40

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-41

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix P-42

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix P-43

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix Q-1

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix Q-2

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix Q-3

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California

In the Matter of: XXXX XXXX XXXX

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A Number: AXXX-XXX-XXX

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the RESPONDENT’S UNOPPOSED MOTION TO CONTINUE MASTER CALENDAR HEARING TO ALLOW FOR ADJUDICATION OF “U” NONIMMIGRANT VISA it is HEREBY ORDERED that the motion be

GRANTED

DENIED because:

DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. Good cause has been established for the motion. The court agrees with the reasons stated in the opposition to the motion. The motion is untimely per ______________________. Other: _____________________________________________________________________ _____________________________________________________________________

____________________________________ Hon. Miriam Hayward Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS Date: ________________________ By: Court Staff________________________

Appendix R-1

Appendices

__________________________ Date

PROOF OF SERVICE In re: AXXX-XXX-XXX XXXX XXXX XXXX

I, XXX XXX, declare that I am employed in the City of Oakland and County of Alameda, California. My business address is XXX XXX XXX, Oakland, CA 94612. I am over the age of 18 and not a party to the above named action. On __________________, I caused to be served the following:

RESPONDENT’S UNOPPOSED MOTION TO CONTINUE MASTER CALENDAR HEARING TO ALLOW FOR ADJUDICATION OF “U” NONIMMIGRANT VISA on: Office of the Chief Counsel Department of Homeland Security 120 Montgomery Street, Suite 200 San Francisco, CA 94104 by first class mail. I declare under penalty of perjury under the laws of the United States that the foregoing is

Appendices

true and correct and that this declaration, made in conformity with 28 U.S.C. § 1746, was executed at Oakland, California on ___________________.

_____________________________ XXX XXX

Appendix R-2

Tab Position 1

Immigrant Legal Resource Center June 2017

----Attorney for Respondent.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BUFFALO, NY

In the Matter of: ---,

Respondent,

In Removal Proceedings. _________________________________

) ) ) ) ) ) ) ) ) ) )

A -------

MOTION TO CHANGE VENUE

Judge: Hearing:

Hon. --. February -9:00 a.m.

I. MOTION Through his undersigned attorney, respondent, ---, respectfully requests that venue in the above-captioned case be changed from Buffalo, New York to San Francisco, California, the court

1003.20(b), the Immigration Judge may change venue if there is “good cause” shown. Good cause exists in Respondent’s case to change venue of his removal proceedings to San Francisco, California.

Appendix S-1

Appendices

nearest Mr. H’s current place of residence and location of his attorney. Under 8 C.F.R. §

II. POINTS AND AUTHORITIES A.

FACTS

Respondent is residing in the San Francisco Bay Area. He lives at ________________________________. Respondent has retained undersigned counsel to represent him in his applications for asylum, withholding of removal and protection under the Convention Against Torture. Under-signed counsel’s office is in San Francisco, California at _________________________________94104. Respondent’s ties and support are in the San Francisco Bay Area, were he is residing.

B.

THE IMMIGRATION COURT SHOULD TRANSFER THIS CASE TO SAN FRANCISCO, CALIFORNIA, THE LOCATION CLOSEST TO RESPONDENT'S RESIDENCE

Where good cause exists, this Court may change the venue of any case to another judicial district. 8 C.F.R. § 1003.20(b). San Francisco is the appropriate place to hold Mr. H’s removal hearing. It is proper to hold an alien's removal hearing in the district where he resides. Matter of Rahman, 20 I&N Dec. 480, 484 (BIA 1992). Mr. H resides in ____ City, CA at the same

Appendices

addressed he was provided upon his release from ICE custody. Furthermore, in order to properly present his case, Mr. H will need the presence of his counsel at his hearings. It would be extremely difficult for counsel to be present for hearings and proceedings in Buffalo, NY. Counsel will be able to effectively represent respondent only if his case is transferred to San Francisco. Denial of this motion would cause an undue financial burden on Respondent, who would have to finance his own and Counsel’s travel to Buffalo for his future hearings. Changing venue of this case should not prejudice the Government.

Appendix S-2

Tab Position 1

Immigrant Legal Resource Center June 2017

On today’s date, counsel spoke with the Office of the Chief Counsel, Immigration and Customs Enforcement in Bufffalo, NY to seek the government’s position on this motion. The

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

government has not yet stated a position. C.

MR. H ADMITS THE ALLEGATIONS AND CONCEDES REMOVEABILITY AS CHARGED

Mr. H, through counsel, hereby admits proper service of the NTA dated September 29, 2009, and the allegations charged therein. Specifically, Mr. H admits factual allegations one through four, 1 and concedes removability as charged. Mr. H requests relief from removal through his application for asylum, withholding of removal and under Article III of the Convention Against Torture. WHEREFORE, Respondent respectfully requests that the venue of his removal proceedings be changed from Buffalo, New York to San Francisco, California.

Dated:

Respectfully Submitted,

________________________

1

Mr. H admits allegation number four only in part, -----. Nevertheless, Mr. H concedes that he is removeable as charged.

Appendix S-3

Appendices

Attorney for Respondent.

Tab Position 1

Immigrant Legal Resource Center June 2017

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BUFFALO, NY In the Matter of:

A -------

[PROPOSED] ORDER OF THE IMMIGRATION JUDGE Upon consideration of Respondent’s MOTION TO CHANGE VENUE, it is HEREBY ORDERED that the request be ___

Granted

___

Denied

because: ___

DHS does not oppose the motion

___

A response to the motion has not been filed

___

The Court agrees with the reasons stated in the motion

___

The Court agrees with the reasons stated in the opposition to the motion

___

Other:

_____________________________________________________________

Appendices

____________________ Date

___________________________ Immigration Judge

______________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail

[ ] Personal Service

To: [ ] Alien [ ] Alien’s Custodial Officer

[ ] Alien’s Atty/Rep

Date: _______________

By:

Appendix S-4

___________________

[ ] DHS

PROOF OF SERVICE In Re: A

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

I, ----, am over the age of 18 and am an attorney practicing federal immigration law in San Francisco, CA. On February --- , I served the following party, with MOTION TO CHANGE VENUE, by overnight mail. Office of the Chief Counsel Immigration and Customs Enforcement 130 Delaware Avenue, Suite 203 Buffalo, NY 14202 Executed in San Francisco, CA on February ----

_____________________________ ----------------

Appendices

Appendix S-5

Tab Position 1

Immigrant Legal Resource Center June 2017

Law Office XXX XXXX Oakland, California 94612 510.XXX-XXXX Attorney for Respondent.

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CALIFORNIA

) ) ) XXXX XXXX XXXX ) ) ) Respondent, ) ) in Deportation Proceedings. ) _______________________________________)

AXXX-XXX-XXX

Hearing: Time: Judge:

XXX X, 2012 X:30a.m. Hon. XXX XXX

Appendices

In The Matter of:

RENEWED MOTION TO CONTINUE INDIVIDUAL HEARING

Appendix S-6

MOTION Respondent, Mr. XXXX XXXX XXXX (“Mr. XXXX”), is scheduled for an individual

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

hearing on Mxx 12, 2017. Through undersigned counsel, Mr. XXXX hereby moves the Court to continue his hearing to allow additional time for attorney preparation. This motion is made on the following grounds: 1.

In accordance with 8 C. F. R. § 1003.29, the Immigration Judge may

grant a motion for continuance for good cause shown. 2.

Mr. XXXX and his long term partner, Ms. XXXX XXXX, have been

intending to marry since the birth of their daughter, XXXX XXXX XXXX XXXX. See Attachment (“Att.”) A, Birth Certificate of XXXX. 3.

However, Ms. XXXX has not been able to successfully finalize the

divorce from her prior spouse. 4.

On XXX X, 2017, this Court denied Respondent’s previous Motion to

Continue and in so doing stated that the aforementioned motion could be renewed with evidence of likely finalization of dissolution of Ms. XXXX’s prior marriage. See Att. C, Order of the Immigration Judge. On February 6, 2017, office of undersigned counsel contacted the

Alameda Family Law Court to inquire about the status of Ms. XXXX’s divorce proceedings. See Att. D, Declaration of XXXX XXXX-XXXX. 6.

Office of undersigned counsel learned that Ms. XXXX had successfully

submitted a “status only” judgment, which is currently before the court. See Id. The clerk informed office of undersigned counsel that it will likely take a few weeks for the court to issue a ruling on the “status only” judgment. See Id.

Appendix S-7

Appendices

5.

7.

The clerk faxed a copy of the “status only” judgment form, which is

before the court. See Att. E. 8.

Mr. XXXX and Ms. XXXX plan to marry as soon as is legally possible.

Based on the fact that the “status only” judgment form is currently awaiting review in the Alameda Family Law Court, Mr. XXXX and Ms. XXXX will presumably be able to marry each other shortly after Mr. XXXX’s currently scheduled hearing. 9.

Ms. XXXX is an asylee from XXXXX and cannot return. She has been

a Legal Permanent Resident (“LPR”) since XXX XX, XXXX. See Att. B, Copy of LPR Card. 10.

Because Ms. XXXX becoming a new qualifying relative will impact Mr.

XXXX’s case, Mr. XXXX requests a continuance so that counsel can prepare the case, including the new qualifying relative. 11.

Mr. XXXX makes this request in the interest of judicial efficiency; if his

case is not continued, he will surely file a motion to reopen as soon as he marries Ms. XXXX.

Appendices

12.

Based on the DHS’ prior opposition, undersigned counsel notified DHS

counsel of the filing of the present motion, so that DHS may review its contents prior to stating a position. // // // WHEREFORE, Mr. XXXX respectfully requests that his individual hearing be continued to the end of the Court’s calendar.

Appendix S-8

Tab Position 1

Immigrant Legal Resource Center June 2017

Date:

XXX X, 2017

Respectfully Submitted,

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

__________________________ XXX XXX Counsel for Respondent

Appendices

Appendix S-9

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California

In the Matter of: XXXX XXXX XXXX

A Number: AXXX-XXX-XXX

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Respondent’s Renewed Motion to Continue Individual Hearing, it is HEREBY ORDERED that the motion be GRANTED  DENIED because: DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. Good cause has been established for the motion. The court agrees with the reasons stated in the opposition to the motion. The motion is untimely per ______________________. Other: _____________________________________________________________________ _____________________________________________________________________

Appendices

__________________________ Date

____________________________________ Hon. XXX XXX Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS Date: ________________________ By: Court Staff________________________ PROOF OF SERVICE In re: AXXX-XXX-XXX XXXX XXXX XXXX

Appendix S-10

Tab Position 1

Immigrant Legal Resource Center June 2017

I, XXX XXX, declare that I am employed in Oakland, California. My business address is

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

XXX XXXX XXXX, Oakland, California 94612. I am over the age of 18 and not a party to the above named action. On XXX X, 2017, I caused to be served the following:

RESPONDENT’S RENEWED MOTION TO CONTINUE INDIVIDUAL HEARING on: Office of the Chief Counsel Department of Homeland Security 120 Montgomery Street, Suite 200 San Francisco, CA 94104 by hand delivery.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration, made in conformity with 28 U.S.C. § 1746, was executed at Oakland, California on XXX X, 2017.

INDEX OF ATTACHMENTS Tab Page

Description

Appendix S-11

Appendices

_____________________________ XXX XXX

A.

City of Berkeley Certificate of Live Birth for Mr. XXXX and Ms. XXXX’s daughter, XXXX XXXX XXXX XXXX; 1

B.

Copy of Legal Permanent Resident Card for Ms. XXXX; 2

C.

Order of the Immigration Judge;

D.

4

Declaration of XXXX XXXX-XXXX; 6

E.

Tab Position 1

Immigrant Legal Resource Center June 2017

Judgment (Case Number XXXXXXXX).

Appendices

7

Appendix S-12

Law Office of XXX XXX XXX XXXX XXXX Berkeley, California 94704 xxx-xxx-xxxx

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Attorney for Respondent. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CALIFORNIA

In The Matter of:

XXXX XXXX XXXX-XXXX

Respondent, in Removal Proceedings. ____________________________________

) ) ) ) ) ) ) ) ) ) )

AXXX-XXX-XXX

Notice of Non-Opposition to Motion to Continue

Hearing: Time: Judge:

XXX X, 201X X:00 a.m. Hon. XXX XXX

On XXX X, 201X, undersigned counsel spoke with Assistant Chief Counsel, Mr. XX,

Date: XXX X, 201X

Respectfully Submitted,

______________________________ XXX XXX Counsel for Ms. XXXX-XXXX

Appendix S-13

Appendices

who stated that DHS is not opposed to a brief continuance in this matter for attorney preparation.

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California

In the Matter of: XXXX XXXX XXXX-XXXX

A Number: AXXX-XXX-XXX

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Motion to Continue Individual Hearing it is HEREBY ORDERED that the motion be GRANTED DENIED because: DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. Good cause has been established for the motion. The court agrees with the reasons stated in the opposition to the motion. The motion is untimely per ______________________. Other: _____________________________________________________________________

Appendices

_____________________________________________________________________

__________________________ Date

____________________________________ Hon. Anthony Murry Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS Date: ________________________ By: Court Staff________________________

Appendix S-14

Tab Position 1

Immigrant Legal Resource Center June 2017

PROOF OF SERVICE In re: AXXX-XXX-XXX XXXX-XXXX, XXXX XXXX

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

I, XXX XXX, declare that I am employed in the City of Berkeley and County of Alameda, California. My business address is XXX XXX XXX, Berkeley, CA 94704. I am over the age of 18 and not a party to the above named action. On XXX X, 201X, I served the following:

Notice of Non-Opposition to Motion to Continue on: Office of the Chief Counsel Department of Homeland Security 630 Sansome Street 11th Floor, Room 1155 San Francisco, CA 94111 by hand. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration, made in conformity with 28 U.S.C. § 1746, was executed at Berkeley, California on XXX X, 201X.

Appendix S-15

Appendices

_____________________________ XXX XXX

Tab Position 1

Immigrant Legal Resource Center June 2017

Mary Beth Kaufman Law Offices of Stanton and Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 T 415-392-6161 F 415-392-2044 Attorneys for Respondent

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CA

In the Matter of

No.

Respondent,

Date: Time: Judge: Hearing: Individual

Appendices

In Removal Proceedings.

MOTION TO PRESENT TELEPHONIC TESTIMONY

Appendix S-16

The Respondent, through undersigned counsel, hereby moves that one of his proposed witnesses, Dr. XXXX XXXX, a proposed expert witness be permitted to testify telephonically. This request is based on the following:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Dr. XXXX is a psychologist employed with the California Department of Corrections and Rehabilitation. Due to her patient schedule, she is unable to testify in person on the day of the hearing. 2. Dr. XXXX will be available to testify by telephone on the day of the hearing between 1:00 and 3:00 p.m., at 415-518-1626. 3. A copy of Dr. XXXX’s curriculum vitae is attached as Attachment A.

Based on the foregoing, Respondent requests that the Court permit Dr. XXXX to testify telephonically.

Date: XXX X, 2017

Respectfully Submitted:

__________________ Mary Beth Kaufman Attorney for Respondent

Appendices

Appendix S-17

Tab Position 1

Immigrant Legal Resource Center June 2017

XXX XXX Law Offices XXX XXX San Francisco, CA 94104 T XXX-XXX-XXXX F XXX-XXX-XXXX Attorneys for Respondent

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CA

In the Matter of XXXX XXXX XXXX AKA XXXX XXXX XXXX XXXX

No. AXXX-XXX-XXX

Date: Time: Judge: Hearing:

Respondent,

XXX X, 201X X:30 a.m. The Honorable Allison Daw Individual

Appendices

In Removal Proceedings.

MOTION TO ACCEPT TWO-DAY LATE FILING

Appendix S-18

Respondent, through undersigned counsel, hereby moves the Court to accept the filing of Respondent’s Application for Adjustment of Status and Supporting Documents two days late. This motion is based on the following:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Counsel’s office had several filing deadlines this week in addition to court appearances and briefing deadlines. 2. Due to an unusually heavy caseload, Ms. XXX was unable to file supporting documentation by the 15-day deadline. The filing is being made on the morning of XXX X, 201X. 3. The late filing is of no fault of Respondent’s. Additionally, Counsel hopes that the late filing will not prejudice the government as it is still X days before the regular hearing. 4. Counsel’s office apologizes for any inconvenience to the Court and opposing counsel.

Based on the foregoing, Respondent requests that the court accept the filing of two-day late supporting documentation.

Respectfully submitted: _________________ XXX XXX

Dated: XXX X, 201X

Appendices

Appendix S-19

Tab Position 1

Immigrant Legal Resource Center June 2017

XXXXXXXXXXXX Attorney for Respondent. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CALIFORNIA In The Matter of:

XX XX XX Respondent,

Appendices

in Removal Proceedings. ____________________________________

) ) ) ) ) ) ) ) ) ) )

Appendix S-20

A A; A Motion for Consolidation

Hearing: Time: Judge:

XX XX. XX

MR’s case is currently set for XX. Undersigned counsel moves the Court to consolidate his hearing with the related cases of his aunt and sister. This motion is based on the following: 1.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

MR entered the United States with his aunt, Ms. VH. MR was released into

the custody of his parents. Ms. VH was found to have a credible fear of return, and she was released and reunited with MR nd other family members here in California thereafter. 2.

As of last week, SR, Ms. VH niece (MR’s sister,) is now in proceedings in

San Francisco. (See Attachment A). Based on the foregoing, the family now agrees that it will be more expeditious to join the three related cases. The general facts surrounding MR’s claim and that of his sister and aunt overlap. They lived down the street from each other and have overlapping material aspects of their claims, related to threats to the family. In addition, the cases will draw on the testimony of each other, and additional shared witnesses, which can be made available to testify in the related matters. 3.

Based on the related aspects of the claims; shared witnesses; and shared

counsel, the respondents move to consolidate their cases. Counsel moves to the consolidate their cases to the previously set date in MR’s case before Judge XX or back to XX, as SR’s first master calendar hearing is set for XX. Either of these options will allow the parties sufficient time to

4.

On XX, undersigned counsel left a message for Assistant Chief Counsel, XX

to ascertain the position of DHS. Counsel will inform the Court when such position is known. 5.

Counsel could not have filed this motion earlier, as SR reunited with her

family here in the past couple weeks. The Immigration Judge in Miami, Florida granted a motion to change venue in her case on XX. The motion to change venue was filed with the assistance of

Appendix S-21

Appendices

prepare their related claims.

the Office of Refugee Resettlement, and was received by counsel on August 17, 201X. Her hearing notice for her first court date in San Francisco was just received today by the family.

WHEREFORE, undersigned counsel moves the Court to consolidate Ms. VH proceedings with that of SR and MR in the interest of Court efficiency.

Date:

Respectfully Submitted,

______________________________

Appendices

Counsel for Respondent

Appendix S-22

Tab Position 1

Immigrant Legal Resource Center June 2017

United States Department of Justice Executive Office for Immigration Review Immigration Court San Francisco, California

In the Matter of: X

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A Number: X

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Motion for Consolidation it is HEREBY ORDERED that the motion be GRANTED DENIED because: DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. Good cause has been established for the motion. The court agrees with the reasons stated in the opposition to the motion. The motion is untimely per ______________________. Other: _____________________________________________________________________ _____________________________________________________________________

____________________________________ X Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS Date: ________________________ By: Court Staff________________________

Appendix S-23

Appendices

__________________________ Date

PROOF OF SERVICE In re: X X

I declare that I am employed in the City of Oakland and County of Alameda, California. My business address is XX. I am over the age of 18 and not a party to the above named action. On XX, I served the following:

Motion for Consolidation on: Office of the Chief Counsel Department of Homeland Security 120 Montgomery Street, Suite 200 San Francisco, CA 94104 by hand delivery. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration, made in conformity with 28 U.S.C. § 1746, was executed

Appendices

at Oakland, California on August 19, 201X.

_____________________________ XX

Appendix S-24

Tab Position 1

Immigrant Legal Resource Center June 2017

Mary Beth Kaufman, Attorney

NON-DETAINED

Law Offices of Stanton & Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 Tel: 415-392-6161 ex. 305 Fax: 415-392-2044

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA _______________________________ IN THE MATTER OF: ) ) AXXX-XXX-XXX ) XXXX XXXX XXXX ) ) The Hon. Laura Ramirez RESPONDENT ) ___________________________________ ) Master: XXX X, 201X at Xpm

Appendices

MOTION TO WITHDRAW PRESENT COUNSEL AND SUBSTITUTE NEW COUNSEL

Appendix S-25

MOTION TO WITHDRAW PRESENT COUNSEL AND SUBSTITUTE NEW COUNSEL COMES NOW, Respondent, by and through undersigned counsel, and requests that the Court allow Eleni Wolfe-Roubatis (“present counsel”) to withdraw her representation and permit Mary Beth Kaufman (“proposed counsel”) to substitute in as counsel of record pursuant to 8 C.F.R. §1003.17. In support of this motion Respondent states the following: 1.

Respondent’s case is scheduled for a merits hearing before this Court on November 5, 201X at 1pm.

2.

As of October 7, 201X, present counsel will be leaving her position at the Law Offices of Stanton and Kaufman, and will be commencing employment at Centro Legal de la Raza in Oakland, California.

3.

Present counsel will be transferring all of her current cases to proposed counsel who is the managing attorney of the Law Offices of Stanton and Kaufman.

4.

Proposed counsel’s Form EOIR-28 is attached to this motion.

5.

Present counsel has fully apprised proposed counsel of the details of the case.

6.

Respondent is aware that present counsel to seeking to withdraw from his case and that proposed counsel will be entering her appearance.

Appendices

WHEREFORE, Respondent requests that attorney Eleni Wolfe-Roubatis’s appearance be withdrawn and that attorney Mary Beth Kaufman be entered as the attorney of record in this matter.

Respectfully submitted,

____________________________ Mary Beth Kaufman Eleni Wolfe-Roubatis Law Offices of Stanton & Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 Tel: 415-392-6161 ex. 305 Fax: 415-392-2044

Appendix S-26

Tab Position 1

Immigrant Legal Resource Center June 2017

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OFFICE OF THE IMMIGRATION JUDGE SAN FRANCISCO, CALIFORNIA IN THE MATTER OF:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

) ) ) )

XXXX XXXX XXXX

AXXX-XXX-XXX

RESPONDENT

ORDER OF THE IMMIGRATION JUDGE Upon consideration of the Motion To Withdraw and Substitute Counsel, it is HEREBY ORDERED that the motion be GRANTED DENIED because: DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. Good cause has been established for the motion. The court agrees with the reasons stated in the opposition to the motion. The motion is untimely per ______________________. Other: Deadlines:

______________________ Date

Hon. Judge Laura Ramirez Immigration Judge

________________________________________________________________________ Certificate of Service This document was served by: [ ] Mail [ ] Personal Service To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Atty/Rep [ ] DHS Date: ________________________ By: Court Staff_____________________________

Appendix S-27

Appendices

The application(s) for relief must be filed by ___________________________. The respondent must comply with DHS biometrics instructions by _________

CERTIFICATE OF SERVICE I, Eleni Wolfe-Roubatis, am over the age of 18 and not a party to this matter, hereby certify that I delivered a copy of the foregoing Motion to Withdraw and Substitute Counsel to ICE/DHS Office of the District Counsel, located at 120 Montgomery Street, Suite 200, San Francisco CA 94104

_______________________ Eleni Wolfe-Roubatis Attorneys at Law Law Offices of Stanton & Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 Tel: 415-392-6161 ex. 305 Fax: 415-392-2044

Appendices

Date:

Appendix S-28

Tab Position 1

Immigrant Legal Resource Center June 2017

DECLARATION OF XXX, A

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

I, xxx, hereby declare the following under penalty of perjury:

1. I submit this declaration in support of the motion to substitute counsel in my case.

2. Because I am living in California, I have retained the Law Offices of Stanton & Kaufman to represent me in my immigration matters and before the Executive Office of Immigration Review. I consent to a substitution of counsel in my case.

Signed: __________________

Dated:__________________

Appendices

Appendix S-29

Tab Position 1

Immigrant Legal Resource Center June 2017

NECESSARY DOCUMENTS FOR CANCELLATION OF REMOVAL The following documents are necessary for proving your continuous physical presence in the United States for ten years, the exceptional and extremely unusual hardship that you or members of your family would face if you were deported, and your good moral character. Please begin gathering the types of documents we have listed below right away. Do not feel limited by this list. Other documents not listed here may be very helpful for your case as well. Please call us if you have any questions or problems in obtaining these documents.

Appendices

A.

Documents evidencing your physical presence and good moral character in the United States from [ten years before NTA date] to present: 1. Employment records. This could include job letters from past and present employers and/or co-workers (see attached sample letters); paystubs; W-2 forms; contracts; etc. 2. Federal and/or State Income Tax Returns and/or an IRS transcript covering the last ten years. You may request a transcript from the IRS here: http://www.irs.gov/Individuals/Order-a-Transcript. 3. Social Security Earnings Statement. You may download a copy of your Social Security Statement online here: http://www.socialsecurity.gov/mystatement/. 4. Medical Records. Evidence of visits to the doctor or emergency room, immunizations, hospitalizations, birth records, etc. 5. Bank Records. Monthly statements, bank letters verifying when your account was established, etc. 6. School and/or Vocational Training Records. Transcripts, diplomas, report cards, certificates of completion, etc. 7. Rental Contracts or Property Deed/Title for housing, automobiles, etc. 8. Evidence of Involvement in Church/Temple. Letter from your religious leader (see attached sample letter). 9. Telephone and other Utility Bills for accounts in your name. 10. Receipts. Bills of sale (these are only effective if your name appears on the receipts). 11. Letters and post-marked envelopes addressed to you. 12. Etc.

Appendix T-1

B.

Documents Evidencing the Hardship Deportation would cause to your U.S. citizen and/or LPR Relatives:

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

1. Evidence of educational or psychological problems suffered by qualifying relatives (if applicable): 2. Letter from Teacher 3. Letter from School Principal or Administrator 4. Letter from Counselor/Psychiatrist/Psychologist 5. Etc. Evidence of health coverage and/or medical problems suffered by children or spouse (if applicable): 1. 2. 3. 4. 5. C.

Documents Evidencing Potential Financial Hardship to United States Citizen Family Members 1. 2. 3. 4. 5.

D.

Copies of health insurance cards (i.e., medical, dental, vision, etc.) Letter from physician Copies of medical records Copies of prescriptions. Etc.

Completed “Statement of Monthly Income and Expenses” Evidence of your employment and income. Copies of bills, account statements, etc. demonstrating expenses Evidence of family members’ employment (or lack thereof), income, etc. Etc.

Documents Evidencing "Good Moral Character": Letters (see samples) regarding your character from: Family and friends Employers Religious Leaders Community/Volunteer service or agency Etc.

Appendix T-2

Appendices

1. 2. 3. 4. 5.

Lista de Documentos para Cancelación de Deportación

Appendices

Por favor junta los siguientes documentos para que podemos preparar su aplicación: 1. Prueba de que usted ha sido presente físicamente en los Estados Unidos durante los últimos 10 años: • Prueba de su entrada: o Pasaporte o Boleto de avión, autobús, tren, auto. o ¿ • Información de su residencia: o Arriendo o Contrato de renta o Recibos de renta o Título de propiedad o hipoteca o Cheques que fueron cancelaron o recibos del cajero o Una carta de su casero que verifica las fechas de su residencia en el hogar (El/ella tiene que firmar la carta y tendrá que poder ser testigo si es necesario) o Cartas que usted recibió en los E.E.U.U (fechada) o Facturas y Pagos de impuesto y seguranza de su propiedad • Su record de empleo: o W-2 o Recibos de nómina de su trabajo o Cartas de su empleador que verifica las fechas de su empleo • Utilidades: o PG&E o Teléfono o Basura o Agua o Cable • Su record de escuela: o Expediente académico o Boletín de calificaciones o Diplomas o Premios de escuela o Record de admisión o Una carta de su escuela que verifica el periodo durante cual usted atendió. • Su record medical: o De la hospital (especialmente si sufre de algún condición grave) o Doctor o Dental o Del Oftalmólogo • Cualquier Record del contacto que Usted ha tenido con los siguientes Agencias: o Inmigración o Procedimiento y apariencias en corte (civil o criminal)

Appendix T-3

Tab Position 1

Immigrant Legal Resource Center June 2017

•

•

•

o Policía (cuidado) o Servicios Sociales (cuidado) o Infracciones de trafico o DMV (registración de su auto) Su record financiero: o Extracto de cuenta de su banco o Cartas de su banco verificando cuanto tiempo usted ha sido cliente o Cheques candeladas o Recibos de Compras: o Coche o Muebles o Viajes (cuidado) Misceláneo: o Calidad de miembro del Club de Salud o Tarjeta de la biblioteca

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

2. Prueba de buen carácter moral: • Declaración de Impuestos • Carta del Departamento de Policía sobre su Record Criminal • Investigaciones de Antecedentes (FBI) • Educación • Prueba de sus servicios y contribuciones a la comunidad: Actividad voluntaria, donaciones, etc. • Carta de su iglesia o grupo comunitario

Appendix T-4

Appendices

3. Prueba de sufrimientos extremas a usted y familiares que son Ciudadanos de los E.E.U.U o de Residentes Permanentes: • Certificado de matrimonio • Acto de nacimiento • Certificado de Naturalización y/o Green Card de sus familiares • Cartas o declaraciones de sus familiares y amigos • Fotografías con su familia • Declaración del cliente: o Duración de presencia en los E.E.U.U. o Condiciones Médicos (cirugía, cáncer, VIH, etc.) o Nivel de asimilación a la cultura y sociedad de los E.E.U.U. o Actividades con amigos y familiares en los E.E.U.U. o Presencia de familiares y amigos en los E.E.U.U. o Falta de familiares y amigos en su país de origen o Empleo remunerado, estable y de larga duración o Beneficios medicales, seguranza, plan de retiro o Prueba de apoyar a familiares en país de origen.

4. Prueba de sufrimiento extrema en su país de origen: • Conflicto civil • Condiciones económicos: o Tasa de inflación o Tasa de desempleo o Acceso a servicios medicales, a seguranza de salud, etc. o Discriminación o persecución de personas en situaciones similares a los del cliente

Appendices

5. Pruebe de su relación a su familiar: • Relaciones Conyugales: o Certificado de matrimonio o Green Card o Acto de Nacimiento o Acto de Naturalización o Pasaporte de los E.E.U.U. • Relaciones a sus Hijos: o Acto de Nacimiento o Green Card o Acto de Naturalización o Pasaporte de los E.E.U.U. • Relaciones a sus Padres: o Acto de Nacimiento o Green Card o Acto de Naturalización o Pasaporte de los E.E.U.U.

Appendix T-5

Tab Position 1

Immigrant Legal Resource Center June 2017

Authorization for Release of Information

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

To whom it may concern: This will authorize you to give attorney _________________________, of [INSERT YOUR LAW OFFICE], or her agents, orally, or in writing or by Photostat, or otherwise as requested, all records and information to which the undersigned would be entitled that you have in your possession and/or control including police reports, treatment reports, and any other documents or reports concerning myself. A copy of this authorization shall have the same cause and effect as the original.

Date:

Signature ____________________________________ Print Name

Date of Birth

Appendices

Appendix U-1

Tab Position 1

Immigrant Legal Resource Center June 2017

June 21, 2013 Ms. Leslie Ungerman, Chief Counsel Office of the Chief Counsel 120 Montgomery Street, Suite 200 San Francisco, CA 94104 Via Hand Delivery RE: Request for Prosecutorial Discretion XXX A Dear Ms. Ungerman: I am writing to request that the Department of Homeland Security (“DHS”) exercise discretion and move to administratively close proceedings in the case of my client, XXXX (“Mr. XXXX”), due to the hardship and harm his removal would cause his family, in particular his United States citizen daughter, his partner and United States citizen sister and extended family members and due to the strong equities that exist in Mr. XXXX's case. As shown by the many letters of support from family, friends, clergy, and employers, Mr. XXXX is a well-respected and vital member of his community. We ask that given all of the factors in this case, Mr. XXXX be considered a low priority for removal pursuant to the most recently issued policy from the White House. Mr. XXXX’s Case Merits Prosecutorial Discretion

I.

Mr. XXXX's case merits the exercise of prosecutorial discretion. As stated by ICE Director John Morton in the June 17, 2011 Memorandum on “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” ICE personnel should regularly exercise prosecutorial discretion to further agency objectives. Such discretion includes exercising prosecutorial discretion and involves the consideration of a number of relevant factors. Many of these factors apply to Mr. XXXX’s case:

Appendices

•

The agency’s civil immigration enforcement priorities

ICE civil immigration enforcement priorities are outlined in the March 2, 2011 Memorandum titled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (see –2011 memo--). This memo emphasizes the importance of “promot[ing] the agency’s highest enforcement priorities, namely national security, public safety, and border security” through the removals it conducts. Pursuing removal proceedings against Mr. XXXX is wholly inconsistent with these priorities. This memo specifically discusses the heightened need “for ICE employees to exercise sound judgment and discretion consistent with these priorities when… litigating cases.” • •

Whether the person has a U.S. citizen or permanent resident spouse, child, or parent Whether the person is the primary caretaker of a person with a mental or physical disability, minor, or seriously ill relative

Mr. XXXX is the primary provider for his United States citizen daughter, XXXX XXXX, who will turn four in July. See Tabs A, B, E and I. As detailed in Mr. XXXX’s statement and those of his

Appendix V-1

family and friends, Mr. XXXX is a very devoted father to his daughter. See Tabs A, E. Moreover, he is the sole economic provider for his daughter and partner. Id. His partner states “Because of this I describe him as a responsible father, humble, very dedicated to his work. He, to my daughter and to me, is our whole life and without him I do not know what we would do.” See Tab E. His sisters details how they were abandoned by their parents as young children, how Mr. XXXX has overcome many obstacles to escape the violence of their home country and how much the family now here in the United States will suffer without him. Id. Mr. XXXX’s friend since childhood writes “that he is a person who is very religious, he helps at the church with his wife and daughter.” Id.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Additionally, XXXX’s mother and Mr. XXXX’s partner, XXXX XXXX XXXX, underwent eye surgery and continues to require follow up case. See Tab A, D and E. If Ms. XXXX requires additional care, Mr. XXXX will once again be the one who provides all child are for their daughter. •

The person’s ties and contributions to the community

Mr. XXXX has strong community ties. See Tabs A, E-I. His pastor writes that Mr. XXXX “is a faithful person with good morals; he is honest and responsible. He attends regularly to Sunday Mass.” See Tab F. A recent employer notes that “not only is he excellent at his job, but he also he is courteous and respectful to fellow employees. It has been a pleasure to work with him as everyone on site can count on him to work hard and always come to work with a positive attitude.” See Tab G. Another writes “I’ve gotten to know Mr. XXXX I have been extremely impressed with his work ethic, determination and pride he takes in his job…I’m please to write this letter in determination of residency and wish that more people would be like him.” Id. •

Entrance at young age

Mr. XXXX entered the United States in 2006 at the age of 18 and has resided in the United States since that time. •

The person’s ties to the home country and conditions in the country

• •

The person’s criminal history The person’s immigration history, including an prior removal, outstanding order of removal, prior denial of status, or evidence of fraud

Mr. XXXX has no criminal convictions whatsoever. His sole arrest from XXXX of 2012 for resisting arrest was dismissed in the interest of justice, as it appears that he was mistaken for another individual. See Tabs A

Appendix V-2

Appendices

Mr. XXXX came to the United States at the age of 18 and his family and entire support network, is here in the United States. He fled XXXXXX to escape the violence hunger, poverty and threats that he received while living there. He has no remaining connections to the XXXXX, as he has not lived there since the age of 18. The United States State Department 2012 Human Right Report notes that “Principal human rights abuses included widespread institutional corruption, particularly in the police and judicial sectors; police and military involvement in serious crimes, including unlawful killings, kidnapping, drug trafficking, and extortion; and societal violence, including violence against women and numerous killings.” See Tab K. In addition, the report notes that conditions for women and children remain dangerous and concerning. As Mr. XXXX is the primary provider for his daughter, she would likely have to relocate to XXXXXX if he is not allowed to remain in the United States and will be vulnerable to the violence and harm detailed in the State Department report.

and J. As for his immigration history, he entered the United States without inspection in XXXX at the age of 18 and has not left since that time. He apologizes for having entered the country without permission but did so to escape the violence he faced at home and create a better life. Mr. XXXX has remained in the United States to remain safe and so that his United States citizen daughter is safe, has all that she need and as many opportunities to succeed as possible. II.

White House’s Policy Regarding Prosecutorial Discretion

On August 18, 2011, the White House publicized a new policy directing immigration authorities to review all of its cases in removal proceedings and exercise prosecutorial discretion in cases that were low priority for removal. The White House recognized that there are more than 10 million people in the U.S. without documentation and that it does not have the resources to deport such a large number of people. In its policy, the White House announced the individuals who were low priority for removal would include those who were brought to this country as small children, those with strong ties and contributions to the community, those with family relationships in the U.S., and those who served in the military. The White House stated that it would make a case-by-case determination to focus its enforcement resources on including individuals who have been convicted of serious crimes. Mr. XXXX has no criminal convictions at all. He has dedicated himself to providing for his family and community. Mr. XXXX has strong community ties and is providing evidence that if he were deported his family and community would suffer greatly. We ask that Mr. XXXX be considered under the current initiative and that the government exercise its discretion favorably in this case. III.

Conclusion

These factors, taken together, demonstrate that Mr. XXXX is a strong candidate for the exercise of prosecutorial discretion. Given the totality of the circumstances in this case, pursuing removal is not in the public interest or in accordance with ICE priorities for removal and we ask that you exercise prosecutorial discretion and move to administratively close these proceedings. Mr. XXXX should be considered a prime candidate for the White House’s recent policy initiative regarding low priority cases.

Appendices

Thank you for your attention to this matter and please contact me with any questions or concerns at XXX. Sincerely,

Law Offices of Stanton and Kaufman 400 Montgomery Street, Suite 810 San Francisco, CA 94104 Enclosures/ 1. Index and Supporting Documents in Support of Prosecutorial Discretion Request

Appendix V-3

Tab Position 1

Immigrant Legal Resource Center June 2017

Index of Documents In Support of Request for Prosecutorial Discretion XXXX AXXX XXX XXX

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

A. Declaration of XX with copy of Current Passport B. Medical records

Appendices

Appendix V-4

Tab Position 1

Immigrant Legal Resource Center June 2017

date

Department of Homeland Security Immigration and Customs Enforcement Office of Chief Counsel Attn” Leslie Ungerman 120 Montgomery Street, Suite 200 San Francisco, CA 94104 RE:

REQUEST FOR PROSECUTORIAL DISCRETION XXXX

Dear Ms. Ungerman, Our office represents XX in removal proceedings, and a G-28 is attached. This is a formal request for prosecutorial discretion in the above referenced case. Mr. XXXX is currently in removal proceedings before the Honorable XXX in San Francisco Immigration Court, with his next individual hearing set for March XXX at 8:30 a.m. We respectfully ask that you exercise prosecutorial discretion and administratively close Mr. XXXX’s case. In the alternative, I would discuss any other course of action the Department deems appropriate under the circumstances.

Appendices

The request for prosecutorial discretion is sent pursuant to consistent policy since the legacy Immigration and Naturalization Service’s November 2000 “exercising Prosecutorial Discretion” Memo issued by Commissioner Meissner, to the Immigration and Customs Enforcement (“ICE”) “exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention and Removal of Aliens,” Memo, issued by Director Morton on June 17,2011. See Attachment (“Att.’) A, B. The latter Memo “provides U.S. [ICE] personnel guidance on the exercise of prosecutorial discretion to ensure that the agency’s immigration enforcement resources are focused on the agency’s enforcement priorities” and provides a nonexhaustive list of factors to be considered when deciding to exercise prosecutorial discretion. This request is also made in light of Principal Legal Advisor, Peter Vincent’s November 17,2011 specific guidance for ICE attorney detailing who are not enforcement priorities and therefore appropriate for prosecutorial discretion, including but not limited to respondent’s with long term residence in the United States, who has an immediate family member who is a United States citizen, and who has established compelling ties and compelling contributions to the United States. See Att. C (Peter Vincent, Principal Legal Advisor, November 17, 2011, Memo: Guidance to ICE Attorneys Reviewing the CBP, USCIS and ICE Cases Before the Executive Office for Immigration Review). As well as in light of USDHS’s clarified policy recognizing long-term same sex partners as falling within the definition of “family relationships for prosecutorial discretion purposes. See Att.s D, E. Mr. XXXX meets the criteria and spirit of the prosecutorial discretion policy. He has long term residence and employment in the United States, strong family ties to the United States, including a long-term same-sex partner who is HIV positive and whom depends on him, as well as an extended “family in the Bay Area; he has made compelling contributions and is not a security risk.

Appendix V-5

I. Mr. XXXX’s Long Term Residence and Employment in the United States Mr. XXXX has resided in the United States for approximately 17 years. He first entered the U.S. lawfully in March of XXXX on an F-1 student visa and studied XXX. See Att. H (Passports). In late XXXX, Mr. XXXX changed status from F-1 to H1b and began working at XXX. Id. See also Att. F (Declaration of XXXX). He last entered the United States in XXXX on a valid H1B, and has not left the country since. See Att. H (Passports).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

For more than X years, Mr. XXXX worked under the H1B and paid taxes. He has since taken odd jobs, worked on his art, devoted himself to caring for his partner and extended family and volunteering. II. Mr. XXXX’s U.S. Citizen, Long-Term Same-Sex Partner is HIV Positive and Will Suffer Hardship In March of 2012, President Obama stated publicly that with respect to immigration enforcement priorities, the term family relationships necessarily included Lesbian Gay Bisexual and Transgender (“LGBT”) family relationships as well. On September 27, 2012, Secretary Napolitano clarified that “family relationships” in regard to prosecutorial discretion includes long-term, same-sex partners. “In an effort to make clear the definition of the phrase ‘family relationships,’ I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners. As with every other factor identified in Director Morton's June 11 memorandum, the applicability of the ‘family relationships’ factor is weighed on an individualized basis in the consideration of whether prosecutorial discretion is appropriate in a given case.” See Attachment (Letter of Sec. Napolitano). On October 5, 2012, DHS, ICE, Office of the Principal Legal Advisor, released written guidance to all chief counsel to further clarify how same-sex relationships should be treated in regard to request for prosecutorial discretion. Per the memo, those relationships that rise to the level of “family” relationships were long-term, same-sex relationships in which both persons:

Mr. XXXX has been in a long-term domestic partner relationship with XXX, a United States citizen. The two are each other’s “sole domestic partner and intend[] to remain indefinitely together.” Att. F (Declaration of XXXX); Att. K (Statement of XXXX XXXX). Neither is in another marital or domestic relationship with anyone else, they live together and have combined financial obligations and asets. Id. The couple have been together for approximately XX years. See Att. F (Declaration of XXXX); Att. K (Statement of XX) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Appendix V-6

Appendices

(1) Are each other’s sole domestic partner and intended to remain indefinitely together; (2) Are not in a marital or domestic relationship with anyone else; (3) And typically maintain a common residence and share financial obligations and assets. See Att. E (DHS Memo, “Applicability of Prosecutorial Discretion to Certain Family Relationships,” Peter Vincent, Principal Legal Advisor, 10/05/2012).

Mr. XXXX was diagnosed with HIV in XXXX. See Att. M (HIV Diagnosis). He remains under HIV treatment and takes a variety of medications to maintain his health. See Att. N (Current T-Cell Count). Mr. XXXX depends on XXXX for “support in all aspects of life, especially in little things and day-today routines. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Mr. XXXX relies heavily on XXXX for physical and emotional support and for caring for him and tending to his health needs. Mr. XXXX, a U.S. citizen, would suffer great hardship if XXXX were not permitted to remain in the United States. III. Mr. XXXX Has Significant Ties To, and Has Made Compelling Contributions to the United States In addition to his long-term, U.S. citizen partner, Mr. XXXX has developed a very large but close extended family in the United States. See Att. P (Letters of Support). As is often the case for gay individuals who are shunned or disowned by their families, Mr. XXXX developed an alternate family of friends. Because he cannot claim biological family, his relationship with his friends has taken on a familial role.

Appendices

XXXX has become an “integral part of [a] San Francisco family.” See Att. K (Staetment of XXXX XXXX). This group is more than friends to one another – they are an extended family who “share holidays, celebrate birthdays and weddings, and mourn the loss of loved ones” together. Id. XXXX is an “irreplaceable [member] of that” San Francisco extended family. See Att. P-1 (XXXX XXXX). See also XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXX is relied upon by his extended family for emotional support, guidance and assistance. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX Moreover, XXXX has, himself, devoted much of his time to supporting and volunteering for worthy causes in the United States. XXXX has “given so much to the San Francisco community, and he still has so much more to offer.” XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXX

Appendix V-7

Tab Position 1

Immigrant Legal Resource Center June 2017

IV. Mr. XXXX is An Asylum Seeker With No Ties to XXXX Mr. XXXX is afraid to return to XXXXX as an openly gay man. See Att. G (Asylum Statement). He has suffered a lifetime of verbal, emotional, physical and sexual abuse by his family and others for being effeminate and perceived to be gay. Id. This included his mother locking him up and out of the house, and even trying to run him over with a car. Id. It also includes years of sexual abuse by his own brother, including forced oral sex, penetration and being told he has AIDS. Id. Students and people on the street called him “faggot” and harmed him. Id. The lifetime of abuse resulted in deep shame, repression and suicidal ideation. Id. After many years of living with shame, Mr. XXXX is finally living his life openly as a gay man today. Id. He fears returning to XXXX now as violence against LGBT individuals is on the rise in XXXX. Id. See also Att. Q (Country Conditions). If he is not physically harmed, Mr. XXXXX fears falling into such a deep depression that he will again contemplate and attempt suicide. Id.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Mr. XXXX has no present family ties to XXXX. On his last trip back, he told his family that he is in fact gay. See Att. G (Asylum Statement). His mother and brother both disowned him. Id. His father has passed away and he has no other siblings. Id. V. Immigration Violations Mr. XXXX first entered the United States lawfully in March of XXXX on an F-1 visa. See Att. H (Passports). He studied English at XXXXX. He thereafter changed his status to H1B in XXXX and began working for XXX XXX XXX. Id. He maintained his H1B status until approximately May of XXXX. Id. See also Att. F (Declaration of XXXX).

Mr. XXXX admits that his actions were stupid. He should not have given into the pressure. Yet, after a lifetime of verbal, physical and sexual abuse for being gay, Mr. XXXX felt shame for being gay. Id. See also Att. G (asylum). On his last return to XXXX to renew his H1B visa, his mother attacked him, hit him and bit him and disowned him when he admitted to being gay. Id. See also Att. G (asylum).

Appendix V-8

Appendices

While he worked for XXX XXX, Mr. XXXX’s employer agreed to sponsor him for residency and Mr. XXXX relied on this promise for years. See Att. F (Declaration of XXXX). Unfortunately, due to a downturn in the economy sponsor him or employ him further. Id. When he lost this opportunity, Mr. XXXX felt as if his worst nightmare was happening. Id. He had feared for so many years that he would someday have to return to XXXX, a country in which he had suffered for so long due to his sexual orientation and non-conforming gender. Id. He felt desperate and depressed. Id. During this very scary time, a friend of Mr. XXXX’s gave him very poor advice and pressured him to marry. Id. Mr. XXXX felt very bad about the situation, and yet, was terrified of what would happen to him if forced to return to XXXX as a gay man. Id. Mr. XXXX felt pressured by the female friend to do something, and ultimately the two married and she filed a petition for him. Id. They had a familial relationship and lived together for a period of time. Id. But when it came time for an interview, Mr. XXXX told her that he did not want to continue, that it did not feel right. Id. She pushed him to go forward – and feeling desperate, Mr. XXXX acted stupidly. Id. Following the interview, Mr. XXXX attempted to withdraw the entire application on February 8, XXXX. Id. He was unaware that he could not withdraw the petition because it had been filed by his wife. Id. Although he asked her to please withdraw it, she did not and the I130 was ultimately denied and the I-485 subsequently denied. Id. Mr. XXXX was thereafter placed in removal proceedings pursuant to an NTA. Id.

He knew that he could not return to XXXX ever again. Id. See also Att. G (asylum). When the real possibility of having to return to XXXX confronted him, Mr. XXXX acted out of panic, desperation and preservation. Id. See also Att. G (asylum). He mistakenly allowed himself to be misguided under pressure. Id. See also Att. G (asylum). As the attached letters demonstrate, however, Mr. XXXX is overwhelmingly known to be honest, trustworthy, a reliable and good individual. See Att. P (Letters of Support). VI. Mr. XXXX is Not a Security Risk Mr. XXXX does not pose a risk to security of the United States. He has never been arrested nor has he received any tickets. See Att. F (Declaration of XXXX). He is a law-abiding, hardworking, tax paying and contributing member of society. Id. See also Att. J. He is dedicated to caring for and supporting his long-term HIV positive partner, and his extended family in the Bay Area. Id. See also At. P (Letters). Because he has no criminal history, he would not post a security risk if his case were administratively closed. Rather, he will continue to participate in his community as well as support his long-term partner and family. Conclusion Mr. XXXX meets the criteria and spirit of the prosecutorial discretion policy. He has long term residence and employment in the United States, strong family ties to the United States, including a long-term same-sex partner who is HIV positive and whom depends on him, as well as an extended “family in the Bay Area; he has made compelling contributions and is not a security risk. For these reasons, we respectfully request that ICE agree to administratively close Mr. XXXX’s case at this time. Should you have any doubts or require anything additional in order to grant this request, please contact me directly at XXX. Thank you for reconsidering this request.

Appendices

Respectfully submitted,

XXX

Appendix V-9

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-1

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-2

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-3

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-4

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-5

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-6

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-7

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-8

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-9

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-10

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-11

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-12

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-13

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-14

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-15

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-16

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-17

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-18

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-19

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-20

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-21

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-22

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-23

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-24

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-25

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-26

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-27

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-28

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-29

XXXXXXXXXXXXXXX UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA ____________________________________ In the Matter of: ) File No.: AXXXXXXXXXXXXX ) XXXXXXXXXXXXXXXX, ) ) ) Respondent, ) ) ) In Removal Proceedings. ) ____________________________________)

Immigration Judge: X

Next Hearing: X

Appendices

RESPONDENT’S PROPOSED EXHIBITS

Appendix W-30

Tab Position 1

Immigrant Legal Resource Center June 2017

TABLE OF CONTENTS

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

TAB PAGE A. Respondent’s Form I-589………………………………………………………………….1 B. Respondent’s Statement in support of Form I-589………………………………………..11 C. Respondent’s birth certificate, with English translation……………………16 D. Statement XX, Respondent’s mother, with a copy of her Naturalization certificate, ……………………………………20 E. Letter of XX regarding past persecution of Respondent, with English translation…………………………………………………………………………………..27 F. Photographs of Respondent when he first arrived in the United States……………………31 G. Letter of XX, MFT, regarding therapy for XXXXXXXXXXX. …………………………………………………………………………..33 H. Letter of XX, MD, XX………………………………………………..36 I.

Letter of XXX, MD, medication management doctor for XXXX……………………………………………………………………………….38

J. Letter of XXX, Respondent’s wife, with a copy of her California identification……………………………………………………………………..40

L. Copy of naturalization certificate for Respondent’s wife……………………………………45 M. Letter of XXX, MS, MFTi, therapist for XXXXX…………………………………………………………………47 N. Letter of XXX, Respondent’s youngest daughter, with a copy of her U.S. birth certificate……………………………………………………………………………………50 O. Letter of XXX, Respondent’s daughter, with a copy of her U.S. birth certificate…………………………………………………………………………………….55 P. Letter of XXX, Respondent’s daughter, with a copy of his U.S. birth certificate58

Appendix W-31

Appendices

K. Copy of marriage certificate for Respondent and his wife…………………………………43

Q. Letter of XXX, Respondent’s sister……………………………………………….61 R. Letter of XXX, Respondent’s niece, with a copy of her U.S. birth certificate……63 S. Letter of XXX, Respondent’s niece, with a copy of her US birth certificate…67 T. Note of XX, Respondent’s niece, with a copy of her US birth certificate……71 U. Letter XX, Respondent’s niece, with a copy of her US birth certificate……………………………………………………………………………………..74 V. US birth certificates for Respondent’s step-siblings…………………………………………77 W. Letters from XX Community Center in support of Respondent’s application, with copies of the writer’s photo identifications………………………………………..……….81 X. Letters from parents and staff at Respondent’s schools, with copies of the writer’s identification……………………………………………………………………………87 1. XX, a parent at XX, regarding Respondent’s involvement in volunteering, the Parent Teacher Student Association (PTSA) and the school community……………………………………………………………………….8 7 2. XXX, MSW, ACSW, PPSSW, social worker at XXX, regarding his involvement with his children, the PTSA , and his leadership…………………………………………90

Appendices

3. XXX, regarding Respondent’s involvement with the school, his children, and his good moral character…………………………………………………………………………94 4. XXX of the PTSA at XXX, regarding Respondent’s volunteerism with the PTSA, the English Language Advisory Committee ……………………………………………….96

Y. Letters from Respondent’s church in support of his application for relief……………..100 1. Reverend XX…………………………………..……………………100 2. XXX his involvement in the church, and turning his life around…………………………………………………………………………..10 2 3. XX regarding Respondent’s involvement in the church ………………103 Z. Photographs of Respondent with his family in the United States. ……………111

Appendix W-32

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-33

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-34

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-35

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-36

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix W-37

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix W-38

EXHIBIT LIST AND DOCUMENTS IN SUPPORT OF FORM I-589 XXX XXX, A xxx-xxx-xxx

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

PAGE A. Declaration of XXX XXX

1-7

B. Copy of Salvadoran birth certificate of XXX XXX, with English translation

8-10

C. Mental Health Evaluation by Family Works Community Counseling

11-14

“Ms. XXX identified numerous symptoms she is suffering stemming from all that she suffered in El Salvador. She has frequent flashbacks that cause her extreme distress. She vividly recalls the marks on her body after Jose hit her with a cord, and the fear she felt when he was angry and screaming. Additionally, Ms. XXX has nightmares at least two nights per week that cause her intense terror and a total inability to return to sleep. These dreams are characterized by images of Jose coming after her and hurting her again.” “Ms. XXX scored a 96 on the Clinician-Administered PTSD Scale, which we administered to her in Spanish, which corresponds to extreme PTSD.” “Ms. XXX also scored a 36 on a scale of 0-60 on the Center for Epidemologic Studies Depression Scale, a reliable and validated measure that was administered in Spanish. This result corresponds to a diagnosis of major depression.” “Ms. XXX scored a 0 on the Miller Forensic Assessment of Symptoms Test, which probes for possible malingering. Ms. XXX's score indicates a low probability for malingering, and as such suggests that she is an unlikely candidate for fabricating or exaggerating her narrative.”

“In our professional opinion, Ms. XXX's story is believable. We came to that conclusion based on the high amount of believable detail with which she told her story as well as the obvious signs of her re-experiencing trauma. She cried very hard and her face got red when she talked about what she has suffered.”

Appendix W-39

Appendices

“Based on the testing described above and our interview with Ms. XXX, we believe she is suffering from PTSD and depression, related to the traumas of her past. She lived in a place where she was at almost constant risk for physical violence, rape and emotional abuse. There was no safe place for her, and she came to view the world as unsafe overall. It created a fearfulness and sadness in her that will take time and effort to overcome. In addition, she requires a stable, safe environment to eventually overcome her history. “

D. Copy of sworn declaration of XXX, aunt of Respondent, with English translation 15-18 “After that he was irresponsible and very violent to the point that he started to physically abuse her and throwing her out of the house at night time and chasing her to kill her, so she and her daughter took refuge in the home of their neighbors, family and in some cases in empty land where she would spent the night, and hope that her partner would not be mad the next day” “Mr. XXX has become a drunk and drug addict that asks about XXX and states that the last thing he will do in his life is to kill her when she returns to the country.” E. Copy of sworn declaration of XXX, sister of Respondent, with English translation

19-22

Mrs. XXX was a “witness to all the suffering and mistreatment that her sister suffered the same as her niece XX, who currently lives with her aunt XXX. XXX and her family are very concerned for XXX’s safety if she returns to her country, because her life is in danger as Jose always asks about her and he said that when she returns to this country he is going to kill her because she left him. “ F. Copy of El Salvador birth certificate of XXX, daughter of Respondent, with English translation 23-25 Copy of Salvadoran death certificate of XXX , father of Respondent, with English 26-28 translation

COUNTRY CONDITIONS DOCUMENTATION

Appendices

G.

“Country Reports on Human Rights Practices for 2011, United States” Department of State, Bureau of Democracy, Human Rights and Labor, available at http://www.state.gov/documents/organization/186725.pdf 29-57 “The principal human rights problems were widespread corruption, particularly in the judicial system; weaknesses in the judiciary and the security forces that led to a high level of impunity; and violence and discrimination against women.”

“Incidents of rape continued to be underreported for a number of reasons, including societal and cultural pressures on victims, fear of reprisal, ineffective and unsupportive responses by authorities toward victims, fear of publicity, and a perception among victims that cases were unlikely to be prosecuted. Laws against rape were not effectively enforced.”

Appendix W-40

Tab Position 1

Immigrant Legal Resource Center June 2017

“Rape and other sexual crimes against women were widespread. The OAG reported 2,264 cases of rape and four cases of sexual, physical, and psychological abuses of women by police officers during the year.”

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“The law prohibits domestic violence and provides for sentences ranging from one to three years in prison. The law also permits obtaining restraining orders against offenders. Domestic violence was considered socially acceptable by a large portion of the population, and, as with rape, its incidence was underreported.” “Violence against women, including domestic violence, was a widespread and serious problem. Laws against domestic violence were not well enforced, and cases were not effectively prosecuted.” H.

UN Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo – Addendum – “Follow-up mission to El Salvador”, February 14, 2011, available at http://www.refworld.org/cgibin/texis/vtx/rwmain?page=country&category=&publisher=&type=THEMREPORT &coi=SLV&rid=&docid=4ef1a8ae2&skip=0 58-80 “Despite the Government’s intention to fulfill its due diligence obligations in the area of gender equality and violence against women, significant challenges remain. As the previous mandate holder pointed out, the failure of authorities to investigate, prosecute and punish those responsible for gender-based violence contributed to an environment of impunity that resulted in little confidence in the justice system; impunity for crimes, socioeconomic disparities and the machista culture fostered a generalized state of violence, subjecting women to a continuum of multiple violent acts, including murder, rape, domestic violence, sexual harassment and commercial sexual exploitation. The discussions held and the information received during the visit suggested that the situation has changed little in El Salvador.”

"Impunity for crimes, socio-economic disparities and the machista culture continue to foster a generalized state of violence, subjecting women to a continuum of multiple violent acts, including murder, rape, domestic violence, sexual harassment and commercial sexual exploitation." “High levels of domestic violence remain of utmost concern in El Salvador. Despite the prohibition of domestic violence through the adoption of legal and policy measures, including the Intra-Family Violence Law of 1996, which calls for

Appendix W-41

Appendices

"Deeply rooted patriarchal attitudes and the pervasiveness of a machista culture that reinforces stereotypes about the roles and responsibilities of women and men in the family, the workplace and society constitute serious obstacles to women’s rights, in particular their right to be free from all forms of violence."

sentences ranging from six months to one year, violence within the family remains largely concealed by prevailing social attitudes that condone it and by the reluctance of victims to report abuse.” “According to the 2008 national survey on family health, 31 per cent of women interviewed declared having been subjected to physical violence before the age of 18. The same study revealed that 44 per cent of women who had been married or lived with a partner had suffered psychological violence, 24 per cent physical violence and 12 per cent sexual violence. The family relations improvement programme of the Institute for the Advancement of Women reported an increase in domestic violence cases against women and girls from 3,698 in 2004 to 6,073 in 2008.” “Research shows that domestic violence and sexual abuse of women and girls in the private sphere remain largely invisible and are consequently underreported. In addition, and in contrast with the increase in the number of cases registered by the Institute for the Advancement of Women, recent years have witnessed a steady decline in the number of judicial procedures for cases of intra-family violence initiated in family courts, falling from 4,890 in 2003 to 1,240 in 2007.” “The reasons behind such underreporting are manifold: family and community pressure not to reveal domestic problems; economic dependency; fear of retaliatory violence by partners; poor awareness of rights among victims; lack of sufficient support services; and low confidence in the justice system, mainly as a result of discriminatory responses and inconsistency in the application and interpretation of the law.”

Appendices

"In the area of family violence, despite recent amendments to the Code of Criminal Procedure, article 32 of the Code still contemplates the possibility of conciliation in misdemeanour cases. This is problematic, since cases of domestic violence are often minimized to the level of a misdemeanour." “The failure of the authorities to prevent, investigate, prosecute and punish those responsible for gender based violence has contributed to an environment of impunity that has resulted in low levels of confidence in the justice system.” "The pervasiveness of patriarchal attitudes in the law enforcement and justice system, coupled with a lack of resources and insufficient knowledge on existing applicable legislation, has led to inadequate responses to cases of violence against women and the persisting social acceptance of such acts. The testimonies of victims of domestic violence who attempted to find access to the legal system show that, unless violence results in serious physical injuries, the police, prosecutors and justices of the peace tend to minimize offences in the belief that domestic violence is a private matter. As such, they discourage victims from pursuing cases and promote conciliation, thus returning victims

Appendix W-42

Tab Position 1

Immigrant Legal Resource Center June 2017

to situations of abuse.21 Cases of domestic violence are often treated as administrative rather than criminal offences, or are classified as misdemeanours." (p. 16). I.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“Femicide: A Global Problem”, United Nations Commission On Crime Prevention, April 23, 2012, available at http://acuns.org/femicide-a-global-problem 81-82 “In El Salvador every 13 hours a woman is killed. In 2011 640 women were killed.” “Factors determining femicide include: domestic violence, organized crime (trafficking in human beings, gangs), acts of revenge, poverty, marginalization, migrants status, etc. Explanations for this phenomenon include: inequality between men and women, the issue of control, economic exploitation, race, sexism, and the cultural clashes (the “macho” culture that justifies and glorifies violence against women, as portrayed in the media and many songs). There is also the cultural background to be taken into consideration, the fact that most of these countries went through a civil war. The gruesome way in which women are killed is a pattern that has resurfaced. There is also a backlash towards women who works outside their homes and try to become independent.” J. “November 2011 Newsletter: CGRS Fact-Finding Delegations to El Salvador Investigate Implementation of Anti-Violence against Women Laws: Two New Expert Affidavits Available”, Center for Gender and Refugee Studies, UC Hastings, December 1, 2011, available at http://cgrs.uchastings.edu/pdfs/November%20Newsletter%2012-1-11.pdf 83-85 “El Salvador has one of the highest rates of violence against women in the world. Despite passage of these three very progressive laws, violence against women continues unabated.”

“The Center for Gender & Refugee Studies teamed up with the UC Hastings Refugee and Human Rights Clinic to conduct fact-finding regarding the implementation of the violence against women laws in El Salvador. Out of our delegations’ work have come two expert affidavits to support asylum cases for Salvadoran women who have suffered gender-based violence and are seeking protection in the U.S.”

Appendix W-43

Appendices

“In the first 8 months of 2011, more than 440 murders of women have been reported, many arising from domestic violence. Equally troubling, the mere fact that the laws exist has led to a perception that the Salvadoran government is willing and able to protect women. In fact, fewer than 6% of women’s assault cases that were reported in 2010 resulted in a conviction.”

K. Sworn Declaration of El Salvador Expert América Joaquina Romualdo Carcomo, May 16, 2011 86-99

"Discrimination against women pervades every facet of society in El Salvador. Machismo -- the set of misogynistic gender bias that relegate women to being the property of men -is ingrained in the country's history and culture, creating a patriarchal society that justifies domestic violence." “The widespread belief that women’s bodies are the property of men permits male aggressors to justify sexual violence against women. Thus, spousal rape is not a crime in El Salvador. Men (and Salvadoran society in general) expect women to submit to male desires, even in the face of physical and emotional harm. Whether in a legal or common law relationship, the average Salvadoran man expects to have sex with his partner whenever he wants. Society justifies this form of violence by reasoning that the man has the right to demand sex from woman he owns, controls and financially supports, regardless of her consent.” "Even if a woman overcomes these barriers and leaves an abusive relationship, abusive men usually do not accept the woman's 'abandonment' and can easily track her down. El Salvador is the smallest county in Central America and one of the smallest on the American continent. There is little respect for a woman’s privacy or confidentiality if she relocated. Women’s financial constraints make it nearly impossible to sever ties with family and friends on whom they must rely on for support."

Appendices

"Discriminatory gender biases are prevalent among government authorities responsible for providing legal protection to women. Police, judges, prosecutors and other officials often believe that women deserve blame for the violence they encounter at home, and that domestic violence cases are a waste of time." “At every step in the legal process, women face discriminatory biases and procedural obstacles within a system that is virtually complicit in the violence they have suffered.” “The LVI [Law Against IntraFamilial Violence] aims to prevent violence by creating a prompt and efficient process by which a victim could obtain an order of protection. As detailed below, there are many barriers to obtaining these orders of protection, and even when they are issued, they are inadequately drafted and lack any enforcement whatsoever.” “…the police lack the resources and gender-sensitivity training necessary to carry out this duty adequately. They harbor biases against victims of domestic violence that prejudice the handling of cases, often leaving victims without the protection they need.” “The police may arrest the aggressor in a domestic violence situation only if they catch him in flagrante delicto (i.e. during the cranial act or immediately thereafter). A victim’s

Appendix W-44

Tab Position 1

Immigrant Legal Resource Center June 2017

testimony of past violence, no matter how extreme, is legally insufficient to make an arrest.”

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“Like other government authorities, judges often harbor the same discriminatory attitudes against women victims of domestic violence.” “Many judges abuse their discretion to dispose of LVI cases quickly and permanently. Instead of prohibiting the aggressor from engaging in harmful conduct (or requiring him to do anything at all), the judges issue san utterly ineffective and vague order placing an affirmative duty on the police to check on the victim from time to time. This makes it impossible for the aggressor to be in violation of the order, freeing him of any future criminal liability and ensuring that the case will not return to the court docket. This leaves the victim helpless and allows the aggressor to abuse her with impunity.” L. “HIV and violence against women in Central America: A human rights-based comparative analysis of the legal framework”, Organization of American States, InterAmerican Commission of Women, February 2012, available at http://www.oas.org/en/cim/docs/VIH-VAW-MarcoJuridico-EN.pdf (excerpt) 100-109 “So, VAW (Violence Against Women) in the private and the public realms, and the rapid growth of the HIV epidemic among women, share a common root cause: gender-based subordination and discrimination.” “Records show that in El Salvador a woman is murdered every 12 hours. Most of these are young women. Women between 18 and 35 make up 52.5% of murder victims.” “…documented 311 reports of sexual assault and 2,262 cases of family violence in the first seven months of 2011.”

“Non-governmental organization Salvadoran Women for Peace (Organizacion de Mujeres Salvadoreñas por la Paz - ORMUSA), which tracks violence against women, reported that, according to police statistics, there were 160 such murders committed in the country in the first three months of the year. This would put the country on track for a record 640 such killings in 2011 - higher than any year since the organization began to track the issue in 1999.” “So-called femicides remain a mysterious phenomenon. One of the characteristics analysts identify about these gender-based murders is that they so often go unpunished, and even un-investigated, with impunity rates hovering over 80 percent or 90 percent in many of the countries where they are common.”

Appendix W-45

Appendices

M. “Violence against women rises in El Salvador”, The Christian Science MonitorLatin America Monitor, May 24, 2011, available at, http://www.csmonitor.com/World/Americas/Latin-America-Monitor/2011/0524/Violenceagainst-women-rises-in-El-Salvador 110-112

N. Amnesty International annual Report, El Salvador, 2011, available at http://www.amnestyusa.org/research/reports/annual-report-el-salvador-2011?page=show 113-114 “High numbers of women and girls were abducted and killed. Many were raped and their bodies mutilated. According to the statistics of the National Police, some 477 women and girls were murdered between January and October, a rise of 224 compared with the same period in 2008. In November, thousands of women and girls took to the streets to protest at the failure to bring those responsible for such crimes to justice and to demand that the authorities develop and implement measures to prevent and punish violence against women and girls.” O. “El Salvador: UN rights expert hits out against rise in killings of women and girls”, UN News Service, March 24, 2010, available at http://www.unhcr.org/refworld/docid/4bb06c721c.html 115 “Violence against women and girls in El Salvador remains prevalent and pervasive, with the number of murders on the rise and kidnappings, sexual assaults and sexual harassment all too frequent, an independent United Nations human rights expert has warned.” “Domestic violence, sexual abuse against women and children in the home and the community, violence and sexual harassment in the workplace, particularly in the maquila sector [factories operating in duty-free zones] and the domestic sphere, police-related violence and sexual commercial exploitation’ are all serious problems, the Special Rapporteur said.”’

Appendices

“She said that although El Salvador “has come a long way in institution-building and human rights protection since the end of the 12-year civil war in 1992,” impunity for crimes, socio-economic inequalities and a macho culture “foster a generalized state of violence,” as had been noted by her predecessor during a visit in 2004.” P. “Violence Against Women is on the Rise”, Voices from El Salvador: Firsthand Information and Textured Analysis of El Salvador’s Political and Social Climate, March 4, 2011. available at, http://voiceselsalvador.wordpress.com/2011/03/04/violenceagainst-women-is-on-the-rise 116117 “Fear plays a large role in femicide, both in the perpetration of the crime and in the lack of justice following it. In El Salvador, as in many Central American countries, the atmosphere is rife with machismo – a culture in which the masculine, powerful man is the ideal. Unfortunately, when juxtaposed with the realities of Salvadoran life (poverty, lack of economic/ social opportunity), this ideal stretches out of reach, sometimes driving men to lash out. Determined to prove their

Appendix W-46

Tab Position 1

Immigrant Legal Resource Center June 2017

manhood, some men turn to physical violence in order to inspire the fear necessary to maintain control and respect in a relationship.”(p. 4 of 12)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“This fear doesn’t stop when the relationship ends, however: at least 12% of ongoing cases of criminal violence against women are stopped because of the victim’s continuing fear of their aggressor. This statistic echoes larger structures of threats and intimidation throughout El Salvador and the rest of Central America, in which fear is employed as a means of obtaining power and control. Violence against women is only one of many devastating symptoms of the culture of impunity in Latin America, pointing to the necessity of an overhaul of the system, through education, political participation, and international solidarity and aid.” Q. El Salvador: Domestic violence; recourse and services available to victims (March 2006-July 2009), Immigration and Refugee Board of Canada, July 2009, available at http://www.unhcr.org/refworld/docid/4a7040bac.html 118123 “[W]omen reported that justices of the peace and police do not take complaints seriously and fail to promptly issue protection orders" …. The courts are said to favour reconciliation and family reunification over the prosecution of perpetrators, which further exposes victims to their abusers and may ignite reprisal" Furthermore, [w]omen's organizations believe that domestic violence ... is severely underreported for the following reasons: societal pressure; fear of reprisal; fear of publicity and stigmatization; discriminatory responses by authorities; and low confidence in the justice system." “A legal system that allows abusers to commit violent acts without investigating cases further and that lets criminals go free encourages impunity and violence.” “ [V]iolence that does not leave marks lasting for 10 days is classified as a misdemeanour rather than a crime…domestic violence is widespread and tolerated.”

“According to data compiled by the ISDEMU, of the 6,235 cases of domestic violence that were reported to the ISDEMU in 2008, 6,073 cases concerned female victims; in 2007, the figure was 5,578 cases with female victims out of 5,777 total cases.” R. Violence Against Women: A Fact Sheet, Amnesty International, available at http://www.amnestyusa.org/our-work/issues/women-s-rights/violence-againstwomen/violence-against-women-information 124-125

Appendix W-47

Appendices

"[B]ecause laws are not consistently applied, … domestic violence is widespread and tolerated. Moreover, domestic violence was considered socially acceptable by a large portion of the population."

“Violence against women is compounded by discrimination on the grounds of race, ethnicity, sexual identity, social status, class, and age. Such multiple forms of discrimination further restrict women’s choices, increase their vulnerability to violence and make it even harder for women to obtain justice. “ “Domestic violence is a violation of a woman’s right to physical integrity, to liberty, and all too often, to her right to life itself. When states fail to take the basic steps needed to protect women from domestic violence or allow these crimes to be committed with impunity, states are failing in their obligation to protect women from torture.” S. United Nations Human Rights Council. Report of the Special Rapporteur on violence against women, its causes and consequences, Yakin Ertürk: Mission to El Salvador, December 20, 2004, available at http://www.unhcr.org/refworld/docid/42d66e500.html 126-154 “There is a consensus in Salvadoran society that gender discrimination is attributable to a machista culture.”

Appendices

“The socio-economic pressures, a weak legal sector that fosters impunity and machista culture - all combined - reinforce a generalized state of violence, which manifests itself in diverse forms. Some of the most pervasive forms of violence against women and girls reported to me in El Salvador are reviewed below [domestic violence is one of the pervasive forms of violence].” “Salvadoran law prohibits domestic violence and calls for sentences ranging from six months to one year upon conviction. However, because laws are not consistently applied, domestic violence is widespread and tolerated. The cases attended to by the National Institute for the Advancement of Women (ISDEMU) and the Forensic Medicine Institute in 1998 reveals that women are the main victims of intrafamily violence. ISDEMU reported receiving 3,786 complaints of domestic violence in 2002 and 4,706 in 2003. The Family Relations Improvement Programme (PSRF) registered 4,222 females subjected to domestic violence in 2003. Women’s organizations estimate that 9 out of 10 women have suffered from domestic violence.” “Women reported that justices of the peace and police do not take complaints seriously and fail to promptly issue protection orders. The courts are said to favour reconciliation and family reunification over the prosecution of perpetrators, which further exposes victims to their abusers and may ignite reprisal. Violence that does not leave marks lasting for 10 days is classified as a misdemeanour rather than a crime. During the waiting period, a victim must return to her aggressor, having already reached her tolerance limit for the abuse and risking reprisal for having gone to the authorities. The authorities indicated

Appendix W-48

Tab Position 1

Immigrant Legal Resource Center June 2017

that efforts are being made to strengthen women’s access to justice through law reform, policies and programmes.”

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“The common perception among the judges assigned to cases of violence against women is that the woman must have provoked the violence committed against her. Due to these stereotypes and the belief that gender-based violence is not a serious matter, judges incorrectly apply or interpret the law, often opting for reconciliation rather than prosecutorial processes in domestic violence cases.” “[T]he Government of El Salvador is failing in its obligations under international law to effectively prevent, investigate and prosecute crimes of violence against women, mainly due to gender discrimination in the criminal justice system and . inconsistencies in the interpretation and application of the law.” “Poverty, impunity for the perpetrators of violence against women; sex and class discrimination in the application of law; overall ineffectiveness in protection of women’s rights; machista culture; the possession and use of arms; and institutional impotence are all factors that require urgent attention. In this context, there is need for research and sex-disaggregated data to guide policy and monitor progress in all sectors.”

Appendices

Appendix W-49

Preparing Testimony Some attorneys write out questions they plan to ask in direct testimony ahead of time. This process requires some flexibility, because the client will not answer each question with all the information you might need. You have to listen carefully to the responses and be prepared to ask follow up questions as needed. Because of this, other attorneys prepare a checklist of information or elements that they want the client or witness to testify to, and check off the various points as the witness covers it. Below are samples of attorney preparations for testimony. Please note that each case has unique facts and requires individualized questions. With the sample questions below, an attorney would usually practice asking questions with the client as part of preparation. After preparation, the attorney would indicate the expected information they hope to solicit with each question in court. In this way, they can quickly check the facts as the client testifies. CLIENT X- DIRECT EXAM (LPR Cancellation Case) Background info on X Q: State your full name. Q: Where do you live? Q: Where were you born and what is your date of birth? Q: Are you currently married? Q: What is your wife's name? Q: Do you know what her immigration status in the United States? Q: When did you marry? Q: Did you have another ceremony after that? Q: Why did you have another ceremony?

Appendices

First marriage was religious ceremony, had a second ceremony with the court. Q: Have you ever been married to anyone else? Q: Do you have any children? Q: Aside from your wife, do you have any other relatives in the United States? Mom, brother. Q: What is the immigration status of your mom and brother? Both are USCs. Q: How would you describe your relationship with your mother? Q: When you were growing up, were you close with your mother? Q: What about your father? Q: How did he harm you?

Appendix X-1

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: Did he ever hit you? Q: How often did he hit you?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: How would you describe your childhood? Q: Did you graduate from high school? Q: What was the last grade you completed? Q: Does your wife have family in the US? Q: Are you close with your wife's family? Q: Where does most of your wife's family live? Q: How often do you spend time with your mom? Q: How often do you spend time with your wife's family? Q: When did you first come to the United States? Q: How old were you? Q: How did you enter the U.S. the first time? EMPLOYMENT HISTORY: Q: Are you currently employed? Q: What type of work do you do? Q: How much responsibility do you have in your position? Q: How many employees do you have? Q: How many hours per week do you generally work? Criminal History Now we are going to talk about your criminal record Q: What was your first run in with the law? For what? Q: When did this occur? Q: How old were you? Q: Were you convicted of a crime? Q: What were the circumstances that led to your arrest? Q: When were you next arrested? (1992) Q: Were you convicted of any crime? No.

Appendix X-2

Appendices

Q: Do you know how many times you have been arrested by the police?

Q: Were you at all involved in a burglary that day? No. Q: Why did the police think you were involved in a burglary? Someone had called the cops and said that we had picked up someone involved in a burglary. Q: Why did the guy you had picked up run away? I think he had committed a crime, so he ran away. Q: At the time that you were going to pick up this guy, did you know that he had committed a burglary? No. Q: When you went to pick him up, what did you know about the circumstances? I just thought we were picking him up to give him a ride. Q: Did you have to go to court for the burglary charge? No. Q: What were the circumstances of your next arrest? Q: What happened? Q: Did you go to court as a result of this arrest? No. Q: Where you convicted of a crime? No. Q: When was the next time you were arrested? Q: Were you convicted of a crime?

Appendices

Yes. I was convicted of 2 counts of theft. Q: When was the conviction? 1998. Q: Why was the conviction so much later than the arrest? Q: Were you originally planning to go to trial? Yes. Q: Did you go to trial? No. Q: Why? I had so much time served, that I pled to theft and got credit for time served. Q: What caused you to be arrested for this crime?

Appendix X-3

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: Then what happened? Q: How do you feel about your involvement in ________?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

I think it was stupid. I am ashamed. At the time, I did it because I needed money to support myself. I was looking up to these older guys who had money. I listened to them and did what they told me to do. I did not think of the consequences at the time. Q: Do you think you would ever get involved in this type of crime again? No I would not. Q: Why not? Because I am much older now and have a stable life. If I could turn back time, I would never do that again. I am older now. I have a good family and good support. I would never commit any more crimes. My situation now is a lot better than before. I have learned from my mistakes. I have my own business. Q: What was your sentence for that conviction? Q: How long did you serve? Q: Have you ever been arrested since you were released from jail? No. Q: Were you ever involved in a gang? No. Q: Why did you know people who were? Q: Why did you agree to get involved in this? Q: How do you feel now about having been involved in __________? I feel very dumb and stupid. I was young. I needed the money. I feel very ashamed about even knowing those people. I wish I never got involved with those people. Q: If someone offered you a whole bunch of money to do something illegal, would you take it?

Q: What if you were still poor and someone offered you a whole bunch of money to do something illegal, would you do it? No. Now I know right from wrong, and I know the consequences. I would never do it again. No money is worth more than you freedom and you want to do the right things in life. If I would have known any better, then I would not have done it. I want to make money legitimately. I have learned from my mistakes. I have thought a lot about my mistakes. Q: Do you think you would ever do anything like that again?

Appendix X-4

Appendices

No, never. I would never do it again. I also am in a different situation now. I learned a lot over the years about how to do things the right way and make money the right way. It is not worth losing freedom for doing something illegal.

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: Why not? Rehabilitation: Q: When were you released from prison? 1997. Q: How were you released? Parole Q: Were you released on parole? Q: What were the conditions of your parole? Q: Did you comply with them? Yes. Q: When were you released from parole? Q: What have you done since you were released? Worked for friend, got another job after that, started my own business. Q: Do you still have a relationship with the people you hung out with when you were getting into trouble? No. Q: Why not? Because I do not want to get involved with those kind of people. I don’t know whether or not they have changed. I want to do the right things in life and I don’t know what they are up to. That is in my past. I am a new man now.

Appendices

Q: Do you think you have changed since you were getting into trouble? How? Yes, dramatically. I am more grown up. I am a very successful businessman. I am a good husband. And I am an overall good person supporting my family with what they need. I am there to support my family. I do a lot for charity and donate a lot of money for charity. I am active w/ the community. I am a good business man. I do things the right way. I just want to look forward and do good things now. Q: How, if at all, has your wife helped you to change in a positive way? She is a big factor in the changes in my life. She is from a good family. She comes from good values and knows what is right and wrong. She would tell me what is right and what is wrong. Q: How has being a business owner changed you if at all? Now I make money in the right way, I pay taxes, and I work for what I have. I have learned how to be responsible and am responsible not only for myself but also for all of my employees.

Appendix X-5

Q: How do you feel about your business? I feel good about my business. It has grown well. We are doing an awesome job.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: How do you feel now about all of the mistakes you have made in your past? Regret and ashamed. I feel very ashamed about what happened to me. I wish I would have known better then. If I could turn back time, I would never have done it. Q: Have you learned anything from your mistakes? What? Yes. I learned not to get involved w/ bad people and that are involved in that life style. I have learned to make the right decisions in life and to make my own decisions. I am not in the neighborhood or environment I was in when I was young. I am not easily influenced like I was before. Hardship (not an element, but still an important equity): Q: What would be the impact on you if you were to return to ----------? It would affect me a lot. My life is here. I am scared to go back to a communist country. Q: Do you know how you came to the United States? As refugees. Q: Do you have family in ----? No. Q: Do you think your wife would go with you to ------ if you had to go? I don't know. Probably not. I don't know how to answer that question b/c I don’t know how it would affect her. She is not from there and does not speak the language. Q: Would your mother go with you to ------ if you had to go? Probably not because she needs the medical assistance here. Q: Why not? No. Q: Why not? I don’t speak --- very well. I have been here since I was so young. I don’t know my way around there. I have not visited since my family came as refugees. Q: How do you think your wife would be affected if you were to have to move to ------? I think it would affect her dramatically. She depends on me. I work, I support the family, I support her parents, my mother. I n eed to be here to run the company because they don't know how to run it the way I do. We are trying to have a family together now. We are trying to have kids. It would be a sad situation if that happened b/c we don't know where it would take us.

Appendix X-6

Appendices

Q: Do you think you would be able to get a job in -----?

Q: What do you think it would be like for your mother if you had to leave the country? It would be very difficult for her. She does not speak English. She needs to go to the Dr. all the time. I support her financially. I don’t know how she would survive w/out me. I can’t imagine that. Q: How old is your mother? Q: Does she have any health problems? Q: Does she have other health problems? Q: How often does she see a doctor? Once a week at minimum. Q: Why does she go to the doctor so often? Q: Who takes her to the doctor? I do. Q: Does anyone else help support her? No. Q: You said you support your wife's family. How do you think they would be affected if you were deported? Q: Why should the Judge give you an opportunity to stay in the United States? Q: If the judge grants your case, will you promise to stay out of trouble? Q: Why do you think the judge should believe that you will not get into trouble again? Q: Is there anything else you would like to say to the court? POTENTIAL CROSS:

Appendices

Q: YOUR WIFE WORKS CORRECT? Yes, she works at my company. Q: WHAT DOES SHE DO THERE? She is the office manager. She manages the driver and the people in the office. Q: YOUR FATHER IN LAW OWNS THE BUSINESS WITH YOU, CORRECT? Yes. Q: SO YOUR WIFE AND YOUR FATHER IN LAW KNOW YOUR BUSINESS QUITE WELL, CORRECT? Not as well as I do. Q: THEY COULD LEARN, COULDN'T THEY? I don't think so. The kind of business I do is really hard.

Appendix X-7

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: YOU LEARNED HOW TO DO IT, WHY COULDN'T THEY? I am a people person. I know how to market the company. I know how to bring in business. I am constantly working. I try to grow the company every day. My father in law is retired and does not have the energy to do that. My wife is not good at marketing. She is too shy to go out there and do business with other people.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: IF YOU WERE DEPORTED, COULDN'T YOU HIRE SOMEONE TO RUN YOUR BUSINESS? Q: YOU GIVE YOUR WIFE A SALARY, CORRECT? Yes. Q: WHATISTHATSALARY? About $5K a month. Q: ISN'T IT TRUE THAT YOUR WIFE WOULD BE ABLE TO SUPPORT HERSELF ON HER SALARY ALONE? If I were deported, it is not clear that they could keep the business running. If they did, they would have to hire a lot of help and they might not have enough money to keep up that salary. If they business didn’t survive, I don’t know what she would do. Q: HOW MUCH EQUITY DO YOU HAVE IN YOUR 2 HOMES? Approximately $850,000. Q: IF YOU AND YOUR WIFE SOLD ALL OF YOUR PROPERTY, COULDN'T SHE AND HER FAMILY LIVE QUITE WELL? No because there are 5 people in the family and they still have a whole life ahead of them. Mom and dad are in their 60s and are retired. She has 2 sisters - one works w/ me and the other is going to work w/ me. They have a whole life ahead of them. Q: ISN'T IT TRUE THAT YOUR WIFE GETS A LOT OF SUPPORT FROM HER FAMILY? Q: ISN'T IT TRUE THEN THAT IF YOU HAD TO LEAVE THE UNITED STATES, YOUR WIFE WOULD NOT BE LEFT ALONE? It is a different type of support- support from family is different than support from a husband. Q: DO YOU SPEAK -----------? Very little Q: YOU TESTIFIED THAT YOUR MOTHER DOES NOT SPEAK ENGLISH CORRECT? Yes. I speak enough ----- to get by with her but I am not fluent.

Appendix X-8

Appendices

Yes.

Q: DID YOU SPEAK ----- AT HOME GROWING UP? Yes, but I can’t write in the language. Q: DOES YOUR WIFE SPEAK ------? No. Q: YOU SAID THAT YOU HAVE A SISTER. SHE LIVES IN THE UNITED STATES, CORRECT? Yes. Q: DOES SHE LIVE NEAR YOUR MOTHER? No—San Mateo. Q: COULDN'T SHE HELP PROVIDE FINANCIAL SUPPORT TO YOUR MOTHER? She does not want to have anything to do w/ my mom. Q: DON'T YOU THINK THAT WOULD CHANGE IF SHE KNEW YOU WERE DEPORTED AND COULDN'T HELP YOUR MOM? I highly doubt it. Q: YOU DID NOT FILE TAX RETURNS PRIOR TO 2000, CORRECT? Correct. Q: YOU WERE WORKING, CORRECT? Yes. Q: WHY DIDN'T YOU FILE TAX RETURNS? When I came home, I was working for my brother-in-law at the cafe. I was not really earning a salary. When I started my business, I was not making much money and had a lot of expenses and had no money left.

Appendices

Q: SO ARE YOU SAYING YOU DID NOT EARN ENOUGH TO BE REQUIRED TO FILE TAXES? I did not think I needed to file tax returns because I was not making enough. Q: DO YOU KNOW THAT FOR SURE? Pretty sure b/c I had no money at the end of the month. Q: YOU ONLY WORKED AT THE CAFE BRIEFLY CORRECT? Yes. 5-6 mos. Q: THEN YOU DID WHAT? I started working for a friend driving a limo.

Appendix X-9

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: WERE YOU EARNING MONEY THEN? It was very slow. I was trying to help the business.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: WHAT DO YOU CONSIDER VERY LITTLE? Probably about a couple hundred per week. Q: WERE YOU EARNING ANYTHING? Yes I was making cash. Q: DID YOU REPORT THAT INCOME TO THE IRS? No. Q: HAVE YOU EVER REPORTED THAT INCOME TO THE IRS? No. Q: SO YOU DID NOT PAY TAXES FOR ABOUT 2 YEARS, CORRECT? Yes. Q: WHYNOT? Because I was making cash and not keeping track of what I was making. I did not know I was making enough money to file taxes at that time. But I have talked to an accountant to see whether or not I need to file back taxes. Q: ISN'T IT TRUE THAT YOU COULD HAVE FILED LATE TAX RETURNS FOR THE YEARS YOU MISSED, BUT YOU HAVE NOT DONE SO? Yes. Q: HAVE YOU EVER MADE ANY FALSE STATEMENTS ON YOUR INCOME TAXES? No. Less than 3 years. Q: SO, 2 YEARS AND WHAT? About 30 months total. 2 years. Q: WERE YOU EVER A GANG MEMBER? No. Q: DID YOU ASSOCIATE WITH GANG MEMBERS? Yes.

Appendix X-10

Appendices

Q: HOW LONG DID YOU SPEND IN PRISON?

Q: HOW DID YOU ASSOCIATE WITH GANG MEMBERS WITHOUT BEING INVOLVED IN A GANG? I just knew them from the neighborhood I lived in b u t I did not want to be in a gang. I am not into gang type things. I j u s t k n e w those people. But I am not that kind of person. Q: WHAT TYPE OF PERSON WOULD THAT BE? I am not into violence—I don’t believe in hurting people. Q: WERE YOU FRIENDS WITH THEM? I knew them, but I don’t know if I was necessarily friends w/ them. Q: DID YOU USE DRUGS GROWING UP? No. Q: DO YOU STILL ASSOCIATE WITH THE PEOPLE YOU HUNG OUT WITH WHEN YOU WERE GETTING INTO TROUBLE? No. Q: WHEN DID YOU STOP ASSOCIATING WITH THEM? Q: YOUR FIRST ARREST INVOLVED A FIGHT THAT YOU GOT INTO, CORRECT? Yes. Q: DID YOU GET INTO FIGHTS OFTEN? No. Q: THEN YOU WERE ARRESTED FOR BURGLARY WITH SOME FRIENDS, CORRECT? Yes. Q: YOU TESTIFIED THAT YOU AND YOUR FRIEND PICKED UP A GUY WHO HAD JUST BURGLARIZED SOMETHING, CORRECT?

Appendices

Yes. Q: ISN'T IT TRUE THAT YOU KNEW HE HAD JUST DONE SOMETHING ILLEGAL WHEN YOU PICKED HIM UP? No, at that time I did not know. POSSIBLE REDIRECT Q: WHY DIDN'T YOU FILE TAXES WHEN YOU FIRST GOT INTO BUSINESS? People told me I didn't need to. I asked around and friends said that for the first two years, you can show a loss. Q: WHY DID YOU BUY DRUGS FOR THAT OFFICER? He asked me to so I did.

Appendix X-11

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: WHY WOULD YOU DO THAT? Because I know people on the street that sell drugs.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: WHY WOULD YOU GO OUT AND BUY DRUGS IF YOU HAD NEVER DONE THAT BEFORE? I just wanted to seem cool like I knew everything. SAMPLE DIRECT EXAMINATION FOR WITNESS (Wife of applicant) Q: PLEASE STATE YOUR FULL NAME FOR THE RECORD. Q: PLEASE STATE YOUR DATE AND PLACE OF BIRTH. Q: WHAT IS YOUR IMMIGRATION STATUS IN THE UNITED STATES? Q: WHERE DO YOU CURRENTLY RESIDE? Q: WITH WHOM DO YOU RESIDE? With my husband X(applicant) and my sister B. Q: WHEN AND WHERE WERE YOU MARRIED? We were legally married at -- in 199X. We had a public ceremony June XX, 200X at ---. Q: DO YOU HAVE ANY CHILDREN? No. Q: HAVE YOU EVER BEEN MARRIED TO ANYONE OTHER THAN X? No. Q: FOR HOW LONG HAVE YOU KNOWN X? Since 1991, so 14 years. Q: HOW DID YOU MEET? Q: HOW WOULD YOU DESCRIBE X TODAY? I would describe him as very caring and loving, his character I would describe as very outgoing, funny, and energetic. Q: HOW WOULD YOU DESCRIBE YOUR RELATIONSHIP WITH X? A lot of times when people ask me, I say it is an unconditional love we have. It has gone beyond the point of husband and wife, it is more like immediate family. It is how I feel about my mother and father. We can make mistakes, but things are always resolved. Q: WOULD YOU GO WITH X TO --- IF HE WERE DEPORTED? It is hard to say. Unless I am in the position where I am forced to decide, I would have to make that decision then. It would be hard because my family is here- we have not even moved

Appendix X-12

Appendices

Through a mutual friend.

out of the city b/c my family is here. But, leaving my husband behind is also hard. So, I don't know what I would do. I am scared to go there because I don’t know anyone and don’t speak the language. Q: DO YOU KNOW WHY YOUR HUSBAND HAS BEEN PLACED IN REMOVAL PROCEEDINGS? DO YOU UNDERSTAND THAT X HAS HAD PROBLEMS WITH THE LAW? Yes. Because he is not a citizen and he committed a crime. Q: WHEN DID YOU FIRST FIND OUT THAT X HAD A PROBLEM WITH THE LAW? I knew that he was getting into trouble from the time I met him. I knew he was not a school boy, but not until his arrest in 1994, did I realize that he had gotten into something that was serious. Q:WHAT WAS YOUR REACTION IN 1994 WHEN HE GOT INTO MORE SERIOUS TROUBLE? I was there the day of his arrest. My reaction was scared, and I did not know how serious of a crime it was at first. I did not know what was going on until I spoke w/ his attorney and he told me what he was being arrested of. Q: WHAT WERE YOU TOLD HE WAS BEING ARRESTED FOR? Q: HAVE YOU AND X DISCUSSED ALL OF HIS ARRESTS? Yes. Q:WHAT HAS X SAID ABOUT HIS ARRESTS AND CONVICTIONS, IF ANYTHING? He would explain to me why he was arrested, but we talked more about what he would not do again and that he would not do it again. We talked about going forward that he would not make the same mistakes again.

Appendices

Q:HAVE YOU EVER BEEN ARRESTED? No. Q: HAS ANYONE IN YOUR FAMILY EVER BEEN ARRESTED? No. Q:WHY HAVE YOU STAYED WITH X GIVEN ALL OF HIS PROBLEMS WITH THE LAW? His 1991 arrest, I know was not his fault. I was there. I saw what happened. If I was that age and a guy, I probably would have handled it that way. Q: WHAT ELSE AS FAR AS STAYING W/HIM? As time went on, our relationship was on and off and we always remained friends. I always knew X was not the person he tried to portray to everyone else. He confided in me and I could see the person he truly was. A lot of times he was more scared and he tried to put up a front.

Appendix X-13

Tab Position 1

Immigrant Legal Resource Center June 2017

We became very close, so I knew that. After his arrest in 1994, I had second thoughts about staying w/ him, and it was a difficult time in my life, but I could not see myself leaving him b/c he was in trouble. After numerous conversations w/ him, I knew he would not go back to being that person again.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Q: WHAT EXACTLY HAPPENED WHEN HE WAS FIRST ARRESTED IN 1991? Q: IN YOUR OPINION, HOW, IF AT ALL, HAS X CHANGED SINCE THE TIME THAT HE WAS GETTING IN TROUBLE WITH THE LAW? Personality wise, he hasn't. He was always been very outgoing and caring. He is very giving, and he has always been that way. However, everything around him has changed. His life has changed on the outside. His lifestyle has changed. He has a family, he is married, he has responsibilities, so because of these things, his life has changed. When he was released from prison, he knew he wanted to pursue his life in the right path. By doing that, he surrounded himself w/ people who love him and who have the right goals in life. Q: IN YOUR OPINION, WHAT AFFECT DID BEING INCARCERATED HAVE ON X? I think it had a lot. I've always told everyone that I am glad he was caught, put into jail, and straightened out. If this had not occurred, he could have ended up in more trouble, and who knows what would have happened to him, who could have influenced him to do what. The people who he hung out w/ were bad and had a bad influence on him. He was scared and scarred by the incident. He knows that he would never want to risk being put into that situation again. I think it was a good wake up call. Because he lives life the way he does now, he would never put himself in that situation again. Q: WHAT AFFECT DO YOU THINK YOU HAVE HAD ON X?

Q: DO YOU THINK X WOULD COMMIT ANOTHER CRIME IN THE FUTURE? Definitely not. Q: WHYNOT? There is no reason for him to commit a crime. The reason he did what he did was because of his financial situation and the people he hung out with. He has a different life now. He is successful. He makes money working every day and is surrounded by people who love him

Appendix X-14

Appendices

I think I had a huge effect on X since the day he was arrested in 1994. He didn't know how long he would be incarcerated, he did not know what he was going to do w/ his life. His life was at a standstill. I had a little to do w/ that scare because I wanted him to never forget where he was and why he was there. After he was arrested, we would talk about his goals in life, when he would get out, what he would do, and I would support him and tell him that if he would put all of his energy into doing the right things, he would become extremely successful b/c his personality and pursuit for getting things done is better than anyone we know. Both of us together were excited about starting a new life for him. When he was released, we started that and everything we planned, we went forward with.

that have the same values that would keep him out of trouble. He is so far away from the people and the places he was surrounded by that would cause him to get into trouble. His attitude has changed, his temperament has changed. He has a lot of responsibilities- me, my family, his mother. There are too many responsibilities. Q: HAS X CONFIDED IN YOU ABOUT WHAT HIS CHILDHOOD WAS LIKE? Yes. Q: WHAT DID HE TELL YOU? Q: HOW DO YOU THINK THE EXPERIENCES X HAD AS A CHILD INFLUENCED HIM? Q: DO YOU THINK X HAS OVERCOME MANY OF THE DISADVANTAGES HE FACED GROWING UP? Q: HOW? Q: YOU SAID THAT YOU AND X DO NOT HAVE ANY CHILDREN. DO YOU HAVE ANY PLANS TO START A FAMILY? Q: WHAT STEPS ARE YOU TAKING IN AN EFFORT TO HAVE CHILDREN TOGETHER? Q: DO YOU RELY ON X FINANCIALLY? HOW? Yes. Q: DO YOU WORK? Q: WHO EARNS MORE, YOU OR X? Q: DO EITHER OF YOU RECEIVE HEALTH INSURANCE THROUGH WORK?

Appendices

Q: WHAT DO YOU DO AT THE COMPANY? Q: WHAT DO YOU THINK WOULD HAPPEN TO THE BUSINESS IF X WERE DEPORTED? It's too much for us to handle w/ out X. We would probably have to sell the company. X does about 50% of the work on his own. Or, what we would have to do is hire maybe 3 more people to replace X. In that business, the profit margin is minimal, so without him, it may fail. X runs around and does everything. He knows everything about the business. Q: HOW WOULD YOU SUPPORT YOURSELF FINANCIALLY IF HE WERE GONE AND THE BUSINESS FAILED? Q: DO YOU OWN YOUR HOME? Q: DO YOU THINK YOU COULD AFFORD KEEP YOUR HOUSES IF X WERE DEPORTED? Q: HOW, IF AT ALL, DOES X SUPPORT YOU EMOTIONALLY?

Appendix X-15

Tab Position 1

Immigrant Legal Resource Center June 2017

Q: HOW WOULD YOU BE EMOTIONALLY AFFECTED IF X WERE FORCED TO LEAVE THE UNITED STATES? Q: YOU BRIEFLY MENTIONED EARLIER X'S MOTHER. IS SHE IN THE US?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Yes. Q: DO YOU HAVE A RELATIONSHIP WITH X'S MOTHER? Q: DO YOU EVER SEE HER? Q: DOES X SEE HER? Q: HOW WOULD YOU DESCRIBE THEIR RELATIONSHIP? Q: DOES X SPEAK, READ OR WRITE ------? He speaks it but does not read or write. Q: WHY DO YOU THINK THE COURT SHOULD ALLOW X TO STAY IN THE US? Q: IS THERE ANYTHING ELSE YOU WANT TO SAY TO THE JUDGE? Main Points: • • • • •

Part of our family Ruin our chances of having a family Financially become a burden How X is today - changed life. He is a role model to those who feel that they have no chances. You can tum your life around. He helps people in the community. He helped people start companies. He has helped others who are rehabilitating their lives. He helps people get jobs, get homes, etc. He likes to inspire others.

SAMPLE CROSS Q: YOU TESTIFIED THAT X BASICALLY RUNS THE LIMO BUSINESS, CORRECT? Q: AND THE BUSINESS IS DOING QUITE WELL NOW, CORRECT? Yes. Q: DO YOU KNOW HOW MUCH PROFIT IT MADE LAST YEAR? No. Q: DO YOU KNOW HOW MUCH PROFIT IT WILL EARN THIS YEAR? I don't know, the accounting officer does that. Q: DO YOU KNOW HOW MUCH X WILL MAKE THIS YEAR? Approximately yes.

Appendix X-16

Appendices

Yes.

Q: WHAT? After salary and profit sharing maybe over $100,000. Q: WHAT WILL YOU EARN THIS YEAR? About $50K. Q: ISN'T IT TRUE THAT IF X SOLD THE BUSINESS YOU WOULD GET ENOUGH MONEY FROM THAT TO HELP YOU MAKE ENDS MEET FOR A LONG TIME? No. Q: WHY NOT, IT IS DOING REALLY WELL? Q: THAT IS IF YOU KEEP THE BUSINESS AND KEEP WORKING THERE. IF YOU SOLD IT, COULDN'T YOU MAKE A LOT OF MONEY? To support my entire family and keep our houses, it would only last so long. Q: YOU UNDERSTAND THAT X HAS A SERIOUS CRIMINAL HISTORY, DON'T YOU? Yes. Q: HAS X ALWAYS BEEN HONEST WITH YOU ABOUT HIS ARRESTS AND PROBLEMS WITH THE LAW? Yes. Q: YOU HAVE A LOT OF FAMILY IN THE US, CORRECT? Yes. Q: YOU ARE VERY CLOSE WITH YOUR FAMILY, CORRECT? Yes. Q: ISN'T IT TRUE THAT YOUR FAMILY WOULD HELP YOU OUT IF YOU NEEDED IT IF X WERE DEPORTED?

Appendices

If they could they would help me, however, at this point, we are helping them, so it may be difficult for them to help me. Of course they would give me support, but not financially. GENERIC DIRECT EXAMINATION QUESTIONS – CC Expert Asylum Cell: (---) Landline: (---) What is your current profession? Professor of XXXX How long have you held that position? What relevant courses have you taught as a professor of La Raza studies? How relevant? What is your educational background?

Appendix X-17

Tab Position 1

Immigrant Legal Resource Center June 2017

What degrees have you earned? What did your Ph.D. studies include?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Masters: Do you have any areas of specialty? How did you come to specialize in these areas? Have you published any relevant articles? How are they relevant to Mr. XXX’s case? Have you testified before the immigration court before? Approximately how many times? Found to be expert in ---------Do you have any other relevant experience that allows you to provide an expert opinion in this case? Establish expertise, move to have recognized as expert in------------------------------. Move to have Professor Cordova recognized as an expert on: (1) the consequences of Salvadoran civil war and (2) the threat of gangs/organized crime in El Salvador Could you please provide the court a brief overview of the nature of the gang problem in _____________ and its history. Gangs and organized crime as artifacts of civil war; operate with the same mentality and brutality. Two primary gangs: Mara Salvatrucha and their 18th Street rivals Presence is ubiquitous in small, medium and large municipalities In your article “---------------.” you state that gangs have co-mingled with organized crime groups and drug cartels. Could you expound on the relationship between those groups? Has the _______________ government taken steps to address this problem?

Regional and international cooperation, police training, development of law enforcement databases. Describe the outcomes associated with Mano Dura. Worsening of the crisis: Forced gangs to become more clandestine and sophisticated Increased crime and violence Public distrust in government Vigilantism and extrajudicial execution of known/suspected gang members

Appendix X-18

Appendices

Mano Dura type approaches: Law enforcement strategy to the exclusion of prevention and rehabilitation.

Disruption of political discourse and process Condemned by domestic and international human rights organizations How would you characterize the ability and willingness of the police and other government entities to respond to gangs? Out-manned, under-trained, out-gunned by gangs Officers frequently killed and are terrorized by gangs Rampant police corruption and collusion with gangs Regional and international police efforts don’t result in increased capacity to protect citizens The combined effect is that there is virtually no police presence in many gang-affected neighborhoods, and when summoned by the public officers either fail to respond, or do nothing. Prosecutorial and judicial systems are grossly under-resourced, under-trained, inept, corrupt, and intimidated by gangs. Successful prosecutions almost never occur. Describe the way gangs engage in witness intimidation and police response to those activities. Rampant problem: intimidation, coercion, murder of witness and family. No culture of witness protection or programs to encourage prosecution. Please describe the mentality of gangs. “Respect,” “insult,” “disrespect.” Violent, punitive responses to perceived acts of respect, insult, disrespect. Threats typically generalize to the family. Once targeted, risk does not subside over time.

Appendices

You state in your affidavit that gangs have an objective of influencing the political process and establishing a climate within which they are free to operate with impunity. Can you explain? Gangs draw from Central American civil war playbook to intimidate and terrorize elected officials, law enforcement, bureaucrats, and public into submission. In certain areas gangs have become de facto governments by rendering state institutions impotent. Are familiar with the circumstances of the Respondent’s case? How did you become familiar with him/her and he circumstances of this case? Do you find his/her account to be credible and consistent with your experience with gangs in __________? Based on your understanding of this case and your knowledge of the mentality of gangs, please explain why you believe the respondent was targeted.

Appendix X-19

Tab Position 1

Immigrant Legal Resource Center June 2017

Do you believe that he/she would be at risk of persecution if returned? If so, what is the basis for that belief? Do you believe that relocating the Respondent to another part of __________ would be an effective way to preserve their safety, if returned?

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Formal and informal network re: return of deportees. Gangs have well established communication networks. Untenable to relocate to rural areas where gangs’ have less of a presence. Based on your understanding of gangs in __________ and the facts of the case, please rank on a scale of 1-10 what you believe to be the risk of harm to the Respondent if he is forced to return. Do you know of cases where someone has denounced the gang or turned in other gang members and faced harm upon return. Do you believe the harm ----------- is in is directly related to whether his co-defendant is there, or is he in trouble regardless? Communication across borders. Predictable that communication will flow. Sample Questions Psychologist after Evaluation What is your current profession? How long have you held that position? Former positions? What is your educational background? What degrees have you earned? Do you have any areas of specialty? Have you worked with survivors of torture before? When? Are you a member of any professional associations? How many clients have you tested/counseled who suffered from torture? How many do you see per week or per month? Do you have any other relevant experience that allows you to perform a professional assessment? Move to have Dr. XXXXX recognized as an expert doctor Have you met XXX (applicant)? When? How many times?

Appendix X-20

Appendices

How many?

Can you explain the context of your meetings? Was he responsive to your questions? What types of evaluations did you perform on Mr. XXXXX? What were the results of the evaluations? What did you diagnose Mr. XXXX with? What are the symptoms of each diagnosis generally? How did you come to these diagnoses? What is Mr. XXXX’s current mental state? Did Mr. XXXX share the events of his past with you? What was his manner/affect while doing so? How did you determine the psychological ramifications of the torture suffered by Mr. Min? In your professional opinion with survivors of victims of torture, was Mr. XXXX credible? Why? In your professional opinion, are Mr. XXXX’s psychological conditions consistent with the aftermath of torture? In your professional opinion, if returned to XXXXX, how would it affect Mr. XXXXX’s psychological state?

Appendices

Is there anything else you’d like to add?

Appendix X-21

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix X-22

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix X-23

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix X-24

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix X-25

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix X-26

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix Y-1

Public Charge Fact Sheet Released April 29, 2011

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Introduction Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits. Background Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." If an individual is inadmissible, admission to the United States or adjustment of status will not be granted. Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge. Definition of Public Charge

Benefits Subject to Public Charge Consideration USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs. Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May

Appendix Y-2

Appendices

In determining inadmissibility, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances. In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration. Benefits Not Subject to Public Charge Consideration Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include: •

• •

• • • • • •

Appendices

• • • • •

Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care Children's Health Insurance Program (CHIP) Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs Housing benefits Child care services Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP) Emergency disaster relief Foster care and adoption assistance Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education Job training programs In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) Non-cash benefits under TANF such as subsidized child care or transit subsidies Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, and other forms of earned benefits Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF. Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration. Note: In general, lawful permanent residents who currently possess a "green card" cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible. Last Reviewed/Updated: 11/15/2013

Appendix Y-3

Tab Position 1

Immigrant Legal Resource Center June 2017

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Appendices

Appendix Y-4

Appendices

Tab Position 1

Immigrant Legal Resource Center June 2017

Appendix Y-5

APPENDIX Z SAMPLE MOTION TO REOPEN

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Attorney Name Address Address Ph: Fax: E-Mail: Attorney for Respondent. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, WA

In the Matter of:

) ) NAME, ) ) Respondent, ) ) In Removal Proceedings. ) _____________________________ )

A 000-000-000

Judge: Hearing:

IJ NAME NONE

∗

The filing of this motion automatically stays the execution of Respondent’s removal order. INA § 240(b)(5)(C).

Appendix Z-1

Appendices

RESPONDENT’S MOTION TO REOPEN AND RESCIND IN ABSENTIA ORDER ∗

INTRODUCTION Respondent, X, through under-signed counsel, hereby moves the Court to rescind its DATE in absentia removal order against her and reopen her removal proceedings. X’s failure to attend her removal hearing was due to her lack of notice of her removal proceedings. Pursuant to the Board’s decision in Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), the Court must reopen these proceedings. STATEMENT OF RELEVANT FACTS AND THE CASE INSERT FACTS RELATING TO RESPONDENT’S AND MOTHER’S MEMORY OF RECEIVING NTA [AS ESTABLISHED THROUHG DECLARATIONS], WHAT HAPPENED UPON APPREHENSION BY CBP/ICE, AND MOTHER’S CHILD’S REASON FOR FAILING TO CHANGE ADDRESS W/ DHS, AND HOW THEY FOUND OUT (AND HOW THEY FELT WHEN THEY FOUND OUT) THAT THERE WAS AN IN ABSENTIA REMOVAL ORDER. JURISDICTION AND VENUE Appendices

Under 8 C.F.R. §§ 1003.23(b)(1)(ii) and (b)(4)(ii), this Court has exclusive jurisdiction to consider a motion to reopen seeking to rescind an in absentia removal order, where the “Record of Proceeding” for the case is within the Court’s “administrative control.” Here, because X’s removal proceedings were commenced before this Court, and her subsequent removal order was entered by this Court, it has exclusive jurisdiction to consider X’s motion to reopen. Jurisdiction remains with this Court because no appeal has been filed of the Court’s DATE decision.

Appendix Z-2

Tab Position 1

Immigrant Legal Resource Center June 2017

ARGUMENT I.

THE COURT MUST REOPEN X’S REMOVAL PROCEEDINGS BECAUSE SHE DID NOT RECEIVE PROPER NOTICE.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Generally, a request to rescind an in absentia removal order (1) must be filed “within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances,” or (2) can be filed at any time “if the alien demonstrates that the alien did not receive notice” as required under the Act. INA § 240(b)(5)(C); 8 C.F.R. § 1003.23(b)(4). In this case, X’s argument is that the Court should reopen her removal proceedings because she did not receive actual notice of her removal proceedings. This motion is not, therefore, subject to the 90-day or 180-day time bars that are normally applied to motions to reopen. In Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), the Board of Immigration Appeals clearly held that an alien must actually receive her Notice to Appear in order for the in absentia procedure under INA §240(b)(5) to apply. The Board reasoned that while the language of the statute only requires that the NTA be mailed to the alien’s last known

where she has not received notice of her obligation to do so in the first place. Matter of G-Y-R-, 23 I&N Dec. at 187. It provided that where the “record reflects that the alien did not receive the Notice to Appear, and the notice of hearing it contains, and therefore has never been notified of the initiation of removal proceedings or the alien’s address

Appendix Z-3

Appendices

address, the alien could not be held liable for failing to provide her updated address,

obligations under [INA] section 239(a)(1) of the Act,” the alien could not be properly be ordered removed in absentia. Id. at 192. As the Board clearly explained: As we read the statute, its intent is to accomplish actual notice . . . . In short, the notice requirement leading to an in absentia order cannot be satisfied by mailing the Notice to Appear to the last known address of the alien when the alien does not receive the mailing. Again, the “last address” or the “most recent address” provided by the alien “in accordance with” or “under” subsection (a)(1)(F) must be an address consequent to the alien’s being put on notice of the particular address obligations contained in the Notice to Appear. Id. at 192 (emphasis in original). G-Y-R- is controlling here. The record before this Court clearly establishes that X did not receive actual notice of the removal proceedings against her. See Att. __ (X’s Dec.) at 3; Att. __ (Declaration of Mother). Under Matter of G-Y-R-, she cannot be ordered removed in absentia under INA §240(b)(5). THIS ARGUMENT ONLY APPLIES IF NTA WAS SERVED BY REGULAR MAIL. THIS SHOULD BE INIDICATED ON NTA. Furthermore, in Matter of M-R-A-, 24 I&N

Appendices

Dec. 665 (BIA 2008), the Board noted that in cases where the NTA or hearing notices are sent by “regular mail,” the presumption of receipt is “weaker than that accorded to notice sent by certified mail. Therefore, when a respondent seeks to reopen proceedings based on a claim of lack of receipt of notice, the question to be determined is whether the respondent has presented sufficient evidence to overcome the weaker presumption of delivery attached to notices delivered by regular mail.” M-R-A-, 24 I&N Dec. at 672. In other words, the Government can establish a stronger case for proper delivery by serving

Appendix Z-4

Tab Position 1

Immigrant Legal Resource Center June 2017

NTAs by certified mail or personal service. By choosing, instead, to serve X via regular mail, the Government must accept the weaker presumption of delivery that applies. As

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

with the respondent in M-R-A-, X has submitted an affidavit stating that she did not receive the NTA or any hearing notices. See Att. __ (X’s Dec.). Because X has established that she did not actually receive the NTA before her DATE hearing, and absent any evidence to the contrary, this Court must rescind its in absentia removal order against X. CONCLUSION For the foregoing reasons, the Court should rescind its in absentia order and reopen X’s removal proceedings.

Date:

Respectfully Submitted,

____________________________ ATTORNEY NAME, Esq.

Appendix Z-5

Appendices

Attorney for Respondent

INDEX OF DOCUMENTS IN SUPPORT OF MOTION TO REOPEN RESPONDENT’S NAME A 000-000-000

Document

A

X’s Declaration

B

MOM’S DEC?

C

Immigration Court’s DATE Removal Order and Notice to Respondent

D

Notice to Appear

E

DOCS SHOWING RESPONDENT MOVED AND WAS NOT LIVING WHERE THE HEARING NOTICE WAS PROBABLY SENT

Appendices

Attachment

Appendix Z-6

Tab Position 1

Immigrant Legal Resource Center June 2017

Attorney Name DETAINED Address Address Ph: Fax: E-Mail:

NOT

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Attorney for Respondent. UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS FALLS CHURCH, VIRGINIA

In the Matter of:

A 000-000-000

RESPONDENT’S MOTION TO REOPEN

Appendix Z-7

Appendices

) ) ) NAME, ) ) ) Respondent, ) ) ) in Removal Proceedings. ) ____________________________________)

INTRODUCTION Through his undersigned attorney, Respondent, VX (“Mr. X”), hereby moves the Board of Immigration Appeals (“Board” or “BIA”) to reopen his removal proceedings pursuant to 8 C.F.R. § 1003.2 and remand his case to the Immigration Judge (“IJ”) so that he can properly present his claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). As explained below, this motion is based on the fact that Mr. X received ineffective assistance of counsel (“IAC”) from his two prior representatives, BC (“Mr. C”), and CD (“Mr. D”). In the Alternative, Mr. X requests the Board to sua sponte reopen his removal proceedings. STATEMENT OF FACTS AND OF THE CASE DETAILED FACTS AND PROCEDURAL HISTORY WITH RELEVANT CITATIONS TO PRIOR RECORD AND ATTACHED NEW EVIDENCE. FOCUS ON ESTABLISHING FACTS THAT MEET LOZADA FACTORS AND JUSTIFY EQUITABLE TOLLING. A CLEAR TIMELINE DETAILING YOUR CLIENT’S RELATIONSHIP Appendices

WITH HIS PRIOR ATTORNEYS, HIS ATTORNEYS’ SPECIFIC MISTAKES THAT PREJUDICED THE CLIENT’S CASE, AND HIS STATE OF MIND DURING EACH STEP OF THE PROCESS, IS CRUCIAL IN ESTABLISHING ATTORNEY MISCONDUCT AND THE CLIENT’S EXERCISE OF DUE DILIGENCE. ARGUMENT I.

THE INEFFECTIVE ASSISTANCE OF MR. X’S TWO PRIOR ATTORNEYS EQUITABLY TOLLS THE NUMERICAL AND TIME LIMITATIONS FOR FILING A MOTION TO REOPEN.

Appendix Z-8

Tab Position 1

Immigrant Legal Resource Center June 2017

The Ninth Circuit recognizes equitable tolling of deadlines during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

petitioner acts with due diligence. See Singh v. Ashcroft, 367 F.3d 1182, 1185-86 (9th Cir. 2004); Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir. 2003); Rodriquez-Lariz v. INS, 282 F.3d 1218, 1224-25 (9th Cir. 2002). Ineffective representation, combined with deceptive behavior that misleads an alien into believing that his representative was proceeding effectively and appropriately, justifies equitable tolling. Rodriquez-Lariz, 282 F.3d at 1224-25; Iturribarria, 321 F.3d at 898. A petitioner is not required “to act with the ‘maximum diligence possible’ – only ‘due’ or ‘reasonable’ diligence.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011). “Typically, an alien is diligent if he continues to pursue relief and relies on the advice of counsel as to the means of obtaining that relief.” Id. In Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir. 2007), the Ninth Circuit explained (1) “that the BIA was under an affirmative obligation to ‘accept as true the facts stated in [Ghahremani’s] affidavit” and (2) for purposes of equitable tolling of a motion to reopen, “the limitations period is tolled until the petitioner ‘definitively learns’

see also Singh v. Gonzales, 491 F.3d 1090, 1096 (9th Cir. 2007) (this Court found that the petitioner’s “suspicion of the deficient representation does not constitute definitive knowledge of the alleged fraud” for purposes of equitable tolling). As discussed below, the actions and inactions of Mr. X’s two prior counsels clearly rise to the level of ineffective assistance of counsel and prejudiced the outcome of

Appendix Z-9

Appendices

of counsel’s defectiveness.” Ghahremani, 498 F.3d at 999 (internal citations omitted);

his case. See Section II, supra. Mr. X acted with due diligence throughout his immigration proceedings, appeal process, and consistently relied on the advice of his prior representatives. See generally Att. A (Declaration of Mr. X). During his immigration proceedings, Mr. X relied on Mr. C’s advice of not mentioning his and his father’s political activity, and Mr. C’s assurances that he did not need to provide any additional documentation in support of his asylum claim. Id. at ¶ 3-10. Mr. X then hired Mr. C to appeal the IJ’s decision to the Board, and he continued to pursue the appellate process until the Ninth Circuit denied his petition for panel rehearing on April 25, 2011. Id. at ¶ 11-12. After that decision, Mr. X was still terrified to return to India, and, while in detention, filed a motion to reopen his proceedings with the assistance of a fellow inmate. Id. at ¶ 13. However, as would be expected from a person who is unaware of the standards or procedures for motions to reopen, the Board denied the motion because Mr. X failed to provide sufficient evidence of changed circumstances in India. See BIA Decision, 8/25/11. Although Mr. X promptly sought judicial review of the Board’s Appendices

decision, again pro se, the PFR was dismissed on May 8, 2012. See Att. F (Ninth Circuit Memorandum, 5/8/12). Luckily, Mr. X was able to secure bond in March 2012, and he immediately sought assistance from an attorney to review his case and inform him what needed to be done. See Att. A (Declaration of Mr. X) at ¶ 14. Thus, Mr. X hired his second attorney, Mr. D. Id. Unfortunately, Mr. D also failed to adequately represent Mr. X. Despite the fact that Mr. X informed Mr. D what occurred while he was represented by Mr. C, Mr. D never explained the myriad of IAC Mr. C provided, and never suggested

Appendix Z-10

Tab Position 1

Immigrant Legal Resource Center June 2017

that Mr. X file a motion to reopen based on that clear IAC. Id. at ¶ 15-16. Instead, Mr. D simply filed another motion to reopen based on changed circumstances which was denied

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

on December 4, 2012. See BIA Decision, 12/4/12. Mr. X then filed a pro se petition for review of that decision with the Ninth Circuit which is still pending. See Att. G (Ninth Circuit Memorandum, 6/19/13). Even then, however, Mr. X did not stop trying to seek relief. Due to the lack of funds, he accepted the assistance of a friend, Mr. Noah, who told him that Mr. C had committed IAC by not submitting proof that his arrests in India were associated to his and his father’s political activity. See Att. A (Declaration of Mr. X) at ¶ 17. However, that is all Mr. Noah explained to Mr. X prior to preparing a motion to reopen for him which Mr. X filed pro se. Id. Mr. X then lost contact with Mr. Noah and became concerned with the status of his case. Id. As a result, he sought assistance from his current counsel. Id. at ¶ 18. It was not until April 24, 2013, after his current counsel reviewed his file that Mr. X became aware of the full extent of the IAC he received from Mr. C and Mr. D. Id. Therefore, suggestion that Mr. X failed to exercise due diligence in this case is

The INS’ suggestion that petitioners, who were in an extremely vulnerable position as the subjects of pending deportation proceedings, should be considered to have lost their rights because they were beguiled by [their representative’s] assurances, contradicts the very basis for providing equitable relief. Petitioners were unfamiliar with the INS’ administrative process and relied on [their representative] to protect their interests. . . [t]his simply does not constitute lack of due diligence.

Appendix Z-11

Appendices

squarely foreclosed by the due diligence holding in Rodriguez-Lariz:

Rodriguez-Lariz, 282 F.3d at 1225. Furthermore, where the ineffective performance of counsel “caused an essential action in his client’s case to be undertaken ineffectively, out of time, or not at all, equitable tolling is available.” Iturribarria, 321 F.3d at 898; see also Rodriguez-Lariz, 282 F.3d at 1223-26. As the Ninth Circuit explained in Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099-1100 (9th Cir. 2005), the petitioner had been “affirmatively deceived” by his representative, but was“unable to obtain vital information bearing on the existence of the claim” until he “received a copy of his court file pursuant to his FOIA request.” Mr. X was first deceived by Mr. C when he failed to properly advise Mr. X what evidence he needed to provide in support of his asylum claim. See Att. A (Declaration of Mr. X). Then, Mr. X was then received additional IAC from Mr. D when he failed to inform Mr. X of the glaring IAC by his first counsel, and failed to file a motion to reopen on that basis. Id. Significantly, even when Mr. X was not represented by an attorney, he was diligently attempting to seek relief in any way available to him. See generally id. Appendices

Here, therefore, the time period for filing a motion to reopen should be tolled until April 24, 2013, after CURRENT ATTORNEY informed Mr. X about the full extent of the ineffective assistance of his two prior counsels. 1 See Iturribarria, 321 F.3d at 899; 1

Even though it seems that Mr. X was aware, prior to April 24, 2013, of other egregious forms of IAC Mr. C provided him, he did not learn of ALL the IAC Mr. C provided until his meeting with CURRENT ATTORNEY. See Att. A (Declaration of Mr. X) at ¶ 18. Specifically, CURRENT ATTORNEY informed Mr. X for the first time on April 24, 2013 that Mr. C had failed to submit evidence that he was a Dalit and failed to submit evidence that the Indian government is unable or unwilling to protect him. Id. Since “the limitations period [on a motion to reopen] is tolled

Appendix Z-12

Tab Position 1

Immigrant Legal Resource Center June 2017

Albillo-De Leon, 410 F.3d at 1099-1100. Thus, the deadline for Mr. X to file a motion to reopen is July 23, 2013. See 8 C.F.R. § 1003.23(b)(1). Where, as here, Mr. X’s prior

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

representatives failed to provide effective assistance of counsel, and Mr. X acted with due diligence, equitable tolling is justified. Accordingly, Mr. X has demonstrated that he is entitled to equitable tolling of the time limitations, as well as the numerical limitations, on his motion to reopen. See Rodriguez-Lariz, 282 F.3d at 1224 (applying the same standard for equitable tolling of time and number limitations on a motion to reopen). Here, Mr. X is filing his motion to reopen within 90 days of learning of the full extent of the ineffective assistance by Mr. C and Mr. D. Therefore, his motion to reopen is timely. II.

MR. C’S AND MR. D’S REPRESENTATION INDISPUTABLY CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL THAT PREJUDICES TO MR. X. “Ineffective assistance of counsel in a deportation proceeding is a denial of due

process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (internal quotation marks omitted); see also Maravilla

an ineffective assistance of counsel claim, an alien in removal proceedings must make two showings. First, he must demonstrate that “counsel failed to perform with sufficient

until the petitioner ‘definitively learns’ of counsel’s defectiveness,” Ghahremani, 498 F.3d at 999, the fact that Mr. X was aware of some IAC prior to April 24, 2013 does not change his eligibility for equitable tolling.

Appendix Z-13

Appendices

Maravilla v. Ashcroft, 381 F.3d 855, 857-858 (9th Cir. 2004) (per curiam). To prevail on

competence.” Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). Second, an alien claiming ineffective assistance of counsel must generally show that he was “prejudiced by counsel’s performance.” Id. A showing of prejudice can be made if counsel’s performance “was so inadequate that it may have affected the outcome of the proceedings.” Iturribarria, 321 F.3d at 889-890 (internal quotation marks omitted); see also Maravilla Maravilla, 381 F.3d at 858. Where the facts surrounding allegedly ineffective representation by counsel were unavailable to the respondent at an earlier stage of the administrative process, “motions . . . based on claims of ineffective assistance of counsel are properly deemed motions to reopen.” Iturribarria, 321 F.3d at 891; see also Iavorski v. INS, 232 F.3d 124, 129 (2d Cir. 2000) (“Claims of ineffective assistance of counsel satisfy the general requirement that motions to reopen present ‘new facts’ that are ‘material and [were] not available and could not have been discovered or presented at the former hearing.’”) (quoting 8 C.F.R. § 3.23(b)(3)(2000)). Mr. X’s instant motion fits squarely into the holding in Iturribarria Appendices

and is a proper motion to reopen. A.

The Failure of Mr. C to Submit Evidence To The Immigration Court Illustrating That Mr. X Is A Dalit, And Evidence That The Indian Government Is Unable or Unwilling To Protect Him, Constitutes Ineffective Assistance of Counsel.

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Rule 1.1, Model Rules of Professional

Appendix Z-14

Tab Position 1

Immigrant Legal Resource Center June 2017

Conduct. “A lawyer shall act with reasonable diligence and promptness in representing a client.” Rule 1.3, Model Rules of Professional Conduct. To establish that Mr. C rendered

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

representation that fell below the standard of competent representation, first, Mr. X must allege facts to allow the Board “to infer that competent counsel would have acted otherwise.” Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986). Here, Mr. C clearly did not perform with sufficient competence when he: 1) failed to provide evidence that a Chamar is a Dalit; and 2) failed to submit evidence that the Indian goverment is unable or unwilling to protect him.

In preparation for his Immigration Court proceedings, Mr. X specifically asked Mr. C if he needed any additional evidence from Mr. X in support of his asylum claim, but Mr. C responded that he would take care of everything, and that Mr. X did not need to provide anything beyond his caste certificate. See Att. A (Declaration of Mr. X) at ¶ 310. However, competent counsel would have realized that Mr. X’s caste certificate only lists that he is a “Chamar,” and would have sought to procure easily available evidence,

(“India: The Ramdasi faction/group/sect of Sikhism, including the number of members, where they are located, and any differences in social/religious practices from “mainstream” Sikhs,” Immigration and Refugee Board of Canada, May 1, 1998) (article which was readily available during Mr. X’s 2005 proceedings showing that Chamars are “untouchables” or “Dalits.”). Further, Mr. C also failed to provide any evidence that

Appendix Z-15

Appendices

which indicated that a Chamar is a Dalit. See Att. B (Mr. X’s Caste Certificate); Att. V

because Mr. X was a Dalit, the Indian government would be unable or unwilling to protect him. See Att. A (Declaration of Mr. X) at ¶ 3-10. Any competent counsel would have understood that in order for an applicant to qualify for asylum, the applicant must prove that the government is unable or unwilling protect him. See Avetovo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000) (holding that in order to qualify for asylum, the source of the persecution must be the government, a quasi-official group, or persons or groups that the government is unwilling or unable to control). However, Mr. X failed to provide the Immigration Court, prior to Mr. X’s 2005 proceedings, with the numerous and easily available country conditions evidence which made it clear that the Indian government is both unable and unwilling to protect Dalits from severe persecution and torture. See Att. W (“World: South Asia ‘Widespread abuse’ of untouchabes,” BBC News, April 13, 1999); Att. X (“Brutal police attack claims 17 lives in southern India,” wsws.org, August 11, 1999); Att. Y (“Justice Delayed for Dalits,” Christianity Today, November 13, 2000); Att. Z (“Activist urges action over Dalits,” BBC News, August 26, Appendices

2001); Att. AA (“Caste Discrimination: A Global Concern” Human Rights Watch for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, September 2001); Att. BB (“Human Rights World Report 2002: India,” Human Rights Watch, December 2001); Att. CC (“Country Reports on Human Rights Practices: India 2001,” United States Department of State, March 4, 2002); Att. DD (“India: Break the cycle of impunity and torture in Punjab,”Amnesty International, January 2003); Att. EE (“India’s ‘Untouchables’ Face Violence, Discrimination,”

Appendix Z-16

Tab Position 1

Immigrant Legal Resource Center June 2017

National Geographic News, June 2, 2003); Att. FF (“India: Probe Police Attacks on ‘Untouchables’,” Human Rights Watch, July 10, 2004); Att. GG (“Human Rights Watch

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

World Report 2005: India,” Human Rights Watch, January 1, 2005). Such actions fall well below that of reasonably diligent counsel, and constitute defective representation. B.

Mr. C’s Ineffective Representation Unquestionably Prejudiced Mr. X Because The Immigration Judge, The BIA, And the Ninth Circuit All Cited The Lack Of Evidence Mr. C Failed To Provide As The Basis For Denying Mr. X’s Asylum Application.

When establishing prejudice, an alien does not need to demonstrate that he would necessarily be entitled to relief, but only that he has “a plausible ground for relief” or that, but for the errors of his former counsel, he may have been granted relief from removal. Arreola-Arreola v. Ashcroft, 383 F.3d 956, 962 n.9 (9th Cir. 2004), citing United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) (internal citation omitted); see also Lin, 377 F.3d at 1027 (to show prejudice, the alien “only needs to show that he has plausible grounds for relief.”) (internal quotation marks omitted). The Ninth Circuit has repeatedly explained that “[p]rejudice results when the performance of counsel was so inadequate

(internal citation and punctuation omitted) (emphasis in original); see also Iturribarria, 321 F.3d at 899-90. The Board should “consider the underlying merits of the case to come to a tentative conclusion as to whether [respondent’s] claim, if properly presented, would be viable.” Lin, 377 F.3d at 1027. The Board “need not conclude that [he] would

Appendix Z-17

Appendices

that it may have affected the outcome of the proceedings.” Mohammed, 400 F.3d at 794

win or lose on any claim, only that [his] claims merit full consideration.” Mohammed, 400 F.3d at 794. Here, it is beyond dispute that Mr. X was severely prejudiced by Mr. X’s IAC. The IJ specifically stated as a reason for his denial of Mr. X’s application the failure by Mr. X to prove that a Chamar is a Dalit. See IJ Oral Decision, 10/12/05 at 4. Further, the prejudice Mr. X suffered is magnified in the Board’s affirmance of the IJ’s decision. First, the Board overturned the IJ’s adverse credibility finding. Second, the Board nonetheless affirmed the IJ’s decision because Mr. X did not provide evidence that he was a Dalit, and that the Indian government was unable or unwilling to protect him. See BIA Decision, 12/10/07 at 2. Additionally, even the Ninth Circuit cited this lack of evidence when it denied Mr. X PFR of the Board’s decision. See Att. D (Ninth Circuit Memorandum, 12/27/10) at 2. Therefore, it becomes clear that but for Mr. C’s IAC, Mr. X would have had a substantial possibility of being granted asylum.

Appendices

C.

Mr. D’s Failure to Explain to Mr. X His Previous Counsel’s Ineffective Assistance and His Failure to File A Motion To Reopen Based On That Clear Deficient Performance Also Constitutes Ineffective Assistance of Counsel.

Mr. D also did not perform with sufficient competence when he: 1) failed to inform Mr. X that Mr. C had rendered clear IAC and 2) failed to file a motion to reopen on that basis. Competent counsel would have immediately recognized that Mr. C’s failures constitute egregious IAC, and would have carefully explained all of Mr. C’s deficient actions to Mr. X. Further, competent counsel would also have realized that a

Appendix Z-18

Tab Position 1

Immigrant Legal Resource Center June 2017

motion to reopen on that basis would toll the time and numerical limitations on motions to reopen, and would provide Mr. X with the highest chance of having his proceedings

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

reopened. See Section I, supra. However, Mr. D failed to do any of those things and simply filed a woeful motion to reopen based on changed circumstances which was subsequently denied. See BIA Decision, 12/4/12. Such actions also constitute defective representation. D.

Mr. D’s Ineffective Assistance of Counsel Prejudiced Mr. X Because It Left Him Oblivious to All the Deficient Actions of Mr. C And Led To The Denial of A Second Motion to Reopen.

Mr. X was clearly prejudiced by Mr. D’s IAC because it continued to keep him in the dark as to all of the deficient performance Mr. X had previously received. Further, Mr. D’s failure to inform Mr. X that he could file a motion to reopen on that basis, which provided him a higher likelihood of success, led to the denial of second motion to reopen and has made it much more difficult for Mr. X to reopen his proceedings. It simply cannot be disputed that had Mr. D presented the IAC of Mr. C in a motion to reopen to the Board in July 2012, Mr. X’s chances of success would have been greater. As such,

III.

MR. X HAS FULLY COMPLIED WITH THE BOARD’S REQUIREMENTS FOR MAKING A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL. In Matter of Lozada, the Board held that “[i]neffective assistance of counsel in a

deportation proceedings is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.

Appendix Z-19

Appendices

Mr. D’s actions and inactions prejudiced Mr. X.

One must show, moreover, that he was prejudiced by his representative’s performance.” 19 I. & N. Dec. 637 (BIA 1988), affirmed 857 F.2d 10 (1st Cir. 1988); see also Section II., infra. In the instant case, Mr. X was clearly prejudiced his two prior counsel’s actions and has satisfied the three procedural requirements of Lozada: (1) an affidavit by the alien setting forth the agreement with counsel regarding the alien’s representation; (2) evidence that counsel was informed of the allegations and allowed to respond; and (3) an indication that a complaint has been lodged with the bar, or reasons explaining why not. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 1999) (adopting the Lozada requirements). Mr. X’s declaration carefully details his reliance on both Mr. C and Mr. D. See Att. A (Declaration of Mr. X). Further, on July 22, 2013, undersigned counsel mailed and faxed both Mr. C and Mr. D copies of Mr. X’s declaration setting forth his allegations, the bar complaint he filed, and invited them to respond. See Att. S (Copy of letter sent to Harsh Chhabra regarding his ineffective assistance of counsel, with attachments and proof of mailing); Att. U (Copy of letter sent to Howard Mr. D regarding his ineffective assistance

Appendices

of counsel, with attachments and proof of mailing). As soon as Mr. X receives responses from either counsel he will duly forward copies to the Board. Finally, Mr. X has filed complaints against Mr. C and Mr. D with their respective state bars. Att. R (Copy of Lozada complaint against Harsh Chhabra sent to the Washington State Bar Association, with proof of mailing); Att. T (Copy of Lozada complaint against Howard Mr. D sent to the California State Bar Association, with proof of mailing). Accordingly, Mr. X has satisfied each of the Lozada procedural requirements.

Appendix Z-20

Tab Position 1

Immigrant Legal Resource Center June 2017

IV.

ALTERNATIVELY, THE BOARD SHOULD SUA SPONTE REOPEN MR. X’S PROCEEDINGS BASED ON THE EGREGIOUS IAC HE SUFFERED AND HIS CONTINUED FEAR OF RETURN TO INDIA.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

“The Board may at any time reopen or reconsider on its own motion any case in which a decision has been made by the Board.” 8 C.F.R. § 1003.2. Where the Board exercises its sua sponte authority to reopen, the time and numerical limits do not apply. 8 C.F.R. § 1003.2(g)(1); 8 C.F.R. § 1003.2(a). Although this power is “not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship,” it is available where “exceptional circumstances” exist and justify the sua sponte reopening of a removal proceedings. Matter of J-J-, 21 I & N Dec. 976, 984 (BIA 1997).

Appendices

Appendix Z-21

Here, “exceptional circumstances” clearly exist where Mr. X was the victim of clearly egregious IAC. See Section II, supra. Besides the IAC that forms the basis for this motion to reopen, Mr. X was also the victim of additional forms of IAC at the hands of Mr. C. See Att. A (Declaration of Mr. X) at ¶ 3-10. Specifically, Mr. X details how Mr. C erroneously advised Mr. X not to include his and his father’s political activism in his asylum claim because his caste alone was sufficient to succeed before the Court. Id. at ¶ 5. Unfortunately, Mr. X trusted Mr. C and he relied on his attorney’s advice. Id. However, this was a critical mistake by Mr. C because Mr. X’s political involvement would have shed additional light on the reasons the police arrested and tortured him. Since this evidence was not presented to the Immigration Court based on his attorney’s erroneous advice, the Board should reopen his proceedings and allow him to properly present his claim for relief. Furthermore, “exceptional circumstances” also exist because since Mr. X’s applications for relief were denied, the police have continued searching for him by Appendices

harassing his father, which eventually led to his father’s death. See Att. A (Declaration of Mr. X) at ¶ 19-21. In addition, Mr. X’s son has been arrested and severely tortured twice by the Indian police because they are searching for Mr. X. Id. The police continues to believe Mr. X is associated with terrorists, and this has caused them to harass, beat, and torture members of Mr. X’s family. Id. With this motion, Mr. X has submitted numerous corroborating documents which illustrate that the police is still searching for him, and that they are willing to do anything to find him. See Att. H (Letter

Appendix Z-22

Tab Position 1

Immigrant Legal Resource Center June 2017

from Jang Bahadur Singh) (describing the harassment Mr. X’s father endured which led to his death and the two times he was arrested by the police because they were searching

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

for Mr. X); Att. I (Letter from Sumanjit Kaur) (corroborating the harassment of Mr. X’s father, arrest and torture of Mr. X’s son, and fact that police continue to search for Mr. X); Att. J (Letter from Sukhchandan Kaur) (same); Att. K (Letter from Charanjit Singh) (same); Att. L (Letter from Dr. Chander Shekhar Bhatia Regarding Treatment of Jang Bhahadur Singh) (same); Att. N (Letter from Dr. Chander Shekhar Bhatia Regarding Treatment of Sohan Singh) (same); Att. P (Copy of letter from Khushi Ram, Lambardar of Village Saido Patti, with certified English translation and copy of photo ID); Att. M (Copy of letter from Satwant Singh Nandachaur, District Vice President of the Bahujan Samaj Party) (regarding Mr. X’s father’s party membership); Att. B (Copy of Sohan Singh’s Death Certificate). Moreover, current country conditions evidence make clear that Dalits face severe persecution in India both at the hands of higher caste persons and the Indian government, and that the Indian government is unwilling to protect Dalits in any meaningful way. See Att. HH (“Keywords: India - Punjab - Balmiki - Inter-caste

27, 2006); Att. II (“Hidden Apartheid: Caste Discrimination against India’s ‘Untouchables’,” Human Rights Watch, February 14, 2007); Att. JJ (“Dalits and the Emancipatory Sikh Religion,” Raj Kumar Hans, December 3-5, 2008); Att. KK (“Caste and Class of Violence in India: Assertion Among Dalits,” Sudhir Hindwan, Journal of Peace Studies, October - December, 2010); Att. LL (Annual Report: 2011,” Amnesty

Appendix Z-23

Appendices

Marriage - BJP,” Refugee Review Tribunal, Australia RRT Research Response, October

International, May 11, 2011); Att. MM (“India Dalit boy ‘killed over high-caste man’s name’,” BBC News, December 2, 2011); Att. NN (“India Dalit woman beaten, paraded naken in Maharashtra,” BBC News, January 12, 2012); Att. OO (“India: Treatment of Dalits by society and government authorities, including the state response to mistreatment (2010-March 2012),” Immigration and Refugee Board of Canada, May 7, 2012); Att. PP (“India: UN Members Should Act to End Caste Discrimination,” Human Rights Watch, May 14, 2012); Att. QQ (“Country Reports on Human Rights Practices: India 2011,” United States Department of State, May 24, 2012); Att. RR (“Indian woman ostracised from village for taking sweeping job,” Telegraph, June 4, 2012); Att. SS (“India’s ‘untouchables’ and the violence of imperialism,” rabble.ca, August 8, 2012); Att. TT (“Dalit Muslims, Christians demand Scheduled Caste status,” The Hindu, November 16, 2012); Att. UU (“For 200 Million Indians, a Life Steeped in Discrimination,” NYTimes, July 19, 2013); Att. VV (“World Report 2013: India,” Human Rights Watch, January 31, 2013); Att. WW (“Country Reports on Human Rights Appendices

Practices: India 2012,” United States Department of State, April 19, 2013). This corroborating evidence makes it clear that Mr. X has a well-founded fear of future persecution based on his caste and imputed political opinion, and the Board should give Mr. X an opportunity to present this evidence in support of his asylum claim. This is especially so, since Mr. X was prevented from properly presenting his claim for asylum due to egregious IAC by Mr. C which Mr. X has been diligently trying to correct ever since.

Appendix Z-24

Tab Position 1

Immigrant Legal Resource Center June 2017

In light of theses exceptional circumstances, Mr. X respectfully requests that the Board reopen his removal proceedings sua sponte, to allow him to properly present his

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

applications for asylum, withholding of removal, and protection under the Convention Against Torture. CONCLUSION For the foregoing reasons, Mr. X respectfully requests that the Board reopen his removal proceedings and remand his case to an IJ for consideration of his applications for asylum, withholding of removal, and protection under the CAT. Alternatively, the Board should reopen Mr. X’s proceedings sua sponte based on the egregious IAC he has suffered and his continued well-founded fear of returning to India. Date:

Respectfully submitted,

_______________________________ ATTORNEY NAME Attorney for Respondent Appendices

Appendix Z-25

Tab Position 1

Immigrant Legal Resource Center June 2017

Attorney Name Address Address Ph: Fax: E-Mail: Attorney for Respondent.

BOARD OF IMMIGRATION APPEALS EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES DEPARTMENT OF JUSTICE FALLS CHURCH, VIRGINIA

Appendices

In the Matter of:

) A 000-000-000 ) ) NAME, ) MOTION TO REOPEN PURSUANT TO ) 8 C.F.R §§ 1003.2(c)(1), (3)(ii) ) Respondent, ) ) ) In Removal Proceedings. ) ____________________________________) INTRODUCTION Respondent, GH (“Mr. H”), moves the Board of Immigration Appeals (“the Board” or “BIA”) to reopen his removal proceedings and remand his case to the Immigration Judge (“IJ”) based on changed country conditions in India and his presentation of material

Appendix Z-26

evidence that was not available and could not have been discovered or presented at his former hearing. See 8 C.F.R. §§ 1003.2(c)(1), 1003.2(c)(3)(ii).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

STATEMENT OF THE FACTS AND CASE USE RECORD OF PROCEEDINGS AND ATTACHED EVIDENCE TO ESTABLISH A MATERIAL CHANGE IN CIRCUMSTANCES IN RESPONDENT’S COUNTRY OF REMOVAL, SUCH THAT HE NOW HAS A WELL-FOUNDED FEAR OF PERSECUTION. ARGUMENT I.

THE STANDARDS FOR MOTIONS TO REOPEN BASED ON CHANGED COUNTRY CONDITIONS. Pursuant to 8 C.F.R. § 1003.2(c)(3), an individual may file a motion to reopen in

order to apply or reapply for asylum or withholding of deportation “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” See also Matter of J-J-, 21 I. & N.

a motion to reopen is not subject to numerical or time limitations. See 8 C.F.R. § 1003.2(c)(3)(ii).

Appendix Z-27

Appendices

Dec. 976 (BIA 1997); Matter of A-N- and R-M-N-, 22 I. & N. Dec. 953 (BIA 1999). Such

“To justify reopening, a petitioner must make a prima facie showing that he is eligible for the relief sought.” 3 Aviles-Torres v. INS, 790 F.2d 1433, 1435-36 (9th Cir. 1986). That is, he “must proffer . . . sufficient evidence to demonstrate a reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues further at a full evidentiary hearing.” Matter of A-N- & R-M-, 22 I. & N. Dec. at 956. In other words, the Board must find only that “there is a reasonable likelihood that the statutory requirements for the relief sought have been satisfied, and that there is a reasonable likelihood that relief will be granted in the exercise of discretion.” Id.; see also Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); see also Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985). II.

THE EVIDENCE THAT MR. H PRESENTS IN THE INSTANT MOTION IS MATERIAL AND COULD NOT HAVE BEEN DISCOVERED OR PRESENTED AT HIS PRIOR HEARING. Since his last hearing before the IJ on December 9, 2002, Mr. H learned that the

Indian police are aggressively seeking his whereabouts and have brutally abused members Appendices

of his immediate family when they did not deliver Mr. H to their custody. Significantly, Mr. H recently learned that the police had arrested, detained, and/or beaten his father on

“A prima facie case is established when an alien presents affidavits or other evidentiary material, which, if true, would satisfy the requirements for substantive relief.” Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985) (internal quotations marks and citation omitted). “The movant . . . need not conclusively establish that he warrants relief.” Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003). 3

Appendix Z-28

Tab Position 1

Immigrant Legal Resource Center June 2017

three occasions since his last hearing: April 2004, March 21, 2007, and October 8, 2010. See Att. A (Mr. H’s Dec.) at ¶¶ 5, 10, 25; Att. J (Father’s Dec.); Att. P (Photos of Mr. H’s Father’s Injuries); Att. Q (Medical Report).

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

The foregoing facts are material in

establishing that Mr. H possesses a well-founded fear of persecution in India. Information about these developments was not available at the time of his prior hearing – because they had not yet occurred – and warrants reopening for consideration by the IJ. The Board may reopen removal proceedings where the Respondent presents evidence that “is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1); see INS v. Doherty, 502 U.S. 314, 324 (1992); Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (explaining that the statute and 8 C.F.R. § 1003.2(c)(1) require that the evidence must not have been available to be presented at the former hearing before the IJ). Since Mr. H’s flight to the United States, his family’s problems with the Punjab police have escalated. See Att. A (Mr. H’s Dec.) at ¶ 6. The abuse to which Mr. H’s family was subject dramatically intensified when, on February 11, 2007, a picture appeared in The Spokesman newspaper

was running for the MLA in the 2007 elections. See Att. A (Mr. H’s Dec.) at ¶ 8; Att. I (Newspaper Article); Att. J (Father’s Dec.). Police mistakenly believed that a man, pictured in the right-hand side of the photograph, was actually Mr. H, and concluded that he had returned to India and appeared in the photo. See Att. A (Mr. H’s Dec.) at ¶ 8; Att. I (Newspaper Article); Att. J (Father’s Dec.). When the police began increasing their

Appendix Z-29

Appendices

featuring Mr. H’s father shaking hands with a Shiromani Akali Dal Mann candidate who

search for Mr. H on the basis of this belief, his father filed a complaint against them with the Punjab State Human Rights Commission, chronicling the police’s abuse of Mr. H’s family. See Att. A (Mr. H’s Dec.) at ¶ 9; Att. J (Father’s Dec.); Att. K (Human Rights Commission Complaint (“Complaint”)). In response, police again arrested Mr. H’s father, on March 21, 2007. See Att. A (Mr. H’s Dec.) at ¶ 10; Att. J (Father’s Dec.); Att. L (Mother’s Dec.). While they held him in custody, the police beat Mr. H’s father, verbally abused him for filing the human rights complaint, and pressured his father, through physical abuse, to tell them where Mr. H was. Id.; see also Att. P (Photos of Mr. H’s Father’s Injuries); Att. Q (Medical Report). When a friend of Mr. H’s father filed a criminal writ against the police, the police threatened to kill Mr. H’s father if it were not withdrawn. See Att. M (Surjit’s Dec.); Att. N (Criminal Writ Petition No. 269 of 2007). This evidence is material to Mr. H’s claim as it demonstrates that the Indian authorities continue to search for Mr. H, and that his life would be in danger if he returns to India. Since Mr. H left his village in December 2000, the police have continued to seek Appendices

him out. However, since May 2007, their search for Mr. H has significantly intensified because of their mistaken belief that Mr. H had returned home and that they would find him. The police have explicitly threatened Mr. H’s family members that they will kill him if they find him. Although “threats alone are typically insufficient [to demonstrate past persecution],” they are “evidence probative of the reasonableness of a fear of future persecution.” Gui v. INS, 280 F.3d 1217, 1229 (9th Cir. 2002). Moreover, the Ninth Circuit has held that “death threats alone can constitute persecution.” Navas v. INS, 217 F.3d 646,

Appendix Z-30

Tab Position 1

Immigrant Legal Resource Center June 2017

658 (9th Cir. 2000). Specifically, “[t]hreats on one’s life, within a context of political and social turmoil or violence, have long been held sufficient to satisfy a petitioner’s burden of

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

showing an objective basis for fear of persecution.” Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004). The determining factor is “whether the group making the threat has the will or the ability to carry it out.” Id. (citations omitted). It is beyond dispute that the Indian police are able and willing to carry out their threats. See Att. S (Department of State, 2010 Human Rights Report: India) (noting that “[m]ajor problems included extrajudicial killings of persons in custody, disappearances, and torture and rape by police and other security forces”). In addition, the Indian police have harassed, intimidated and arrested human rights activists on false and politically motivated charges. See Att. U (Amnesty International India Annual Report 2011). This harassment and intimidation has included accusations that human rights activists support terrorist organizations and placing them under constant surveillance. See Att. V (India: Information on Treatment of Human Rights Activists in Punjab, Sept. 4, 2003). This illustrates how Mr. H and his family are at heightened risk due to their pursuit of the violation of their human rights at the hands of

Further, because Mr. H is currently out of the country, the police have turned their attention to his father and other family members. The abuse of Mr. H’s immediate family – which is closely tied to the police’s search for Mr. H himself – unquestionably demonstrates that Mr. H possesses an objectively reasonable fear of future persecution, should he be returned to India. See Section III, supra. Because these events occurred

Appendix Z-31

Appendices

the Indian police.

recently and several years after Mr. H’s last hearing before the IJ, the Board should reopen these proceedings and remand Mr. H’s case to the IJ for further proceedings in light of the new evidence presented herein. III.

NEW EVIDENCE RENDERS MR. H PRIMA FACIE ELIGIBLE FOR ASYLUM AND WITHHOLDING OF REMOVAL BASED ON HIS MEMBERSHIP IN A PARTICULAR SOCIAL GROUP AND IMPUTED POLITICAL OPINION. With this motion, Mr. H presents compelling evidence 4 which renders him prima

facie eligible for asylum, withholding of removal and protection under the CAT. The abuse of Mr. H’s immediate family clearly indicates that Mr. H possesses a well-founded fear, and likelihood, of future persecution. See Maishiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (recognizing “that violence against family members . . . may support an applicant’s asylum claim”); Baballah v. Ashcroft, 367 F.3d 1067, 1074-75 (9th Cir. 2004) (“Violence directed against an applicant’s family members provides support for a claim of

Appendices

4

“Where factual assertions in affidavits supporting a motion to reopen are specific and not conclusory . . . the BIA must accept their truth unless they are inherently incredible.” Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985); see also Limisco v. INS, 951 F.2d 210, 213 (9th Cir. 1991). Although the Board can reject even an unrebutted sworn statement if it is “inherently incredible,” see Hamid v. INS, 648 F.2d 635, 636 (9th Cir. 1981), the Board must at least state that it is doing so and give some explanation for its action. Here, the affidavits, independent medical, and court documents submitted by Mr. H present detailed evidence of the events that took place surrounding his father’s arrest. These documents are detailed, credible, internally consistent, and derived from a variety of sources. Accordingly, there is no reason for the Board not to accept their truth for the purposes of the instant motion to reopen. See Mattis, 774 F.2d at 968.

Appendix Z-32

Tab Position 1

Immigrant Legal Resource Center June 2017

persecution and in some instances is sufficient to establish persecution”); Salazar-Paucar v. INS, 281 F.3d 1069, 1075 (9th Cir. 2002) (“evidence of harm to Petitioner’s family

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

supports a finding of past persecution”). Further, the abuse he would suffer clearly rises to the level of torture. See, i.e., Att. J (Father’s Dec.); Att. P (Photos of Mr. H’s Father’s Injuries); Att. Q (Medical Report); 8 C.F.R. § 208.18(a)(1). The evidence contained herein further demonstrates a clear nexus between the harms Mr. H would face in India and several protected grounds. First, the statements of the police, made while interrogating Mr. H’s family about his whereabouts, demonstrate that they seek to harm him because of a political opinion they have imputed to him. “It is settled law that an applicant may establish a political opinion for purposes of asylum relief by showing an ‘imputed political opinion.’” Kumar v. Gonzales, 444 F.3d 1043, 1054 (9th Cir. 2006), citing Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997). The Ninth Circuit has repeatedly held that an applicant can establish imputed political opinion based upon the persecutor’s erroneous belief as to the applicant’s political affiliation or opinion. Kumar, 444 F.3d at 1054. See, e.g., Singh v. Ilchert, 63 F.3d 1501, 1509-9 (9th Cir. 1995)

based upon the false belief that he was affiliated with Sikh militants); Blanco-Lopez v. INS, 858 F.2d 531, 533-34 (9th Cir. 1988). Furthermore, the Ninth Circuit has said that “[i]f there is no evidence of a legitimate prosecutorial purpose for a government's harassment of a person . . . there arises a presumption that the motive for harassment is political.” Singh v. Ilchert, 63 F.3d at 1509, quoting Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th

Appendix Z-33

Appendices

(finding an imputed political opinion where Indian police officers persecuted the petitioner

Cir. 1985). Moreover, the Court has “held persecution to be on account of political opinion where there appears to be no other logical reason for the persecution at issue.” Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000), citing Sangha v. INS, 103 F.3d 1482, 1490 (9th Cir. 1997). Second, political opinion is a broad concept, which the Ninth Circuit has repeatedly construed to include opposition to, and exposure of, government corruption. See Grava v. INS, 205 F.3d 1177, 1181 (9th Cir. 2000) (“Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status.”); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir. 2004) (“Retaliation against an individual who has acted against government corruption can be ‘on account of’ political opinion.”); Hasan v. Ashcroft, 380 F.3d 1114, 1121 (9th Cir. 2004); Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir. 1989).

The evidence presented herein, including statements made by the police,

demonstrates that they are further motivated to harm Mr. H because of his and his family’s exposure of police corruption. See Att. A (Mr. H’s Dec.) at ¶ 9; Att. J (Father’s Dec.); Att. Appendices

K (Complaint). Finally, it is well-established that a family constitutes a particular social group for purposes of asylum and withholding of removal. See Mashiri v. Ashcroft, 383 F.3d 1112, 1120-21 (9th Cir. 2004); Lin v. Ashcroft, 377 F.3d 1014, 1028-29 (9th Cir. 2004); MolinaEstrada v. INS, 293 F.3d 1089, 1095 (9th Cir. 2002); Sanchez-Trujillo v. INS, 801 F.3d 1572, 1576-77 (9th Cir. 1986) (family is a “prototypical example” of a social group); see also Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds by,

Appendix Z-34

Tab Position 1

Immigrant Legal Resource Center June 2017

Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987). The police have demonstrated their commitment to harming Mr. H on account of his family group membership; police

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

initially identified him as a target because his father, grandfather, and uncles were all members of the Shiromani Akali Dal Mann party. See Att. A (Mr. H’s Dec.) at ¶ 2. Two of Mr. H’s uncles were arrested and disappeared by the Indian police in the mid-1990's. Id. Two of his other uncles fled following their own arrests and torture at the hands of the Indian police; they were never seen again. Id. Mr. H’s father has also suffered numerous arrests and serious mistreatment by the Indian police, and was even arrested by the police in an effort to force Mr. H to surrender himself to them. Id. at ¶ 7. This legacy provides compelling circumstantial evidence that the Indian police are motivated to harm Mr. H because of his family group membership. In this case, police are actively pursuing Mr. H and his family because of their connections to, and imputed support for, the Akali Dal Mann party, see Att. A (Mr. H’s Dec.) at ¶ 8; Att. I (Newspaper Article); Att. J (Father’s Dec.), because of their demonstrated opposition to police corruption, see Att. A (Mr. H’s Dec.) at ¶ 9; Att. J

relationship to each other. See Att A. (Mr. H’s Dec.) at ¶ 4, 7; Att. J (Father’s Dec.); Att. L (Mother’s Dec.). Accordingly, Mr. H has demonstrated that the harm he would face were he to return to India is on account of a protected ground. Further, given the police’s recent search for him, it is clear that Mr. H cannot safely avoid future harm through relocation as his persecutor is the Indian government. See Singh

Appendix Z-35

Appendices

(Father’s Dec.); Att. K (Complaint), Att. M (Surjit’s Dec.), and because of their

v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995) (where the persecutor is the government, “[i]t has never been thought that there are safe places within a nation” for the applicant to return”); see also 8 C.F.R. § 1208.13(b)(3)(ii) (“In cases in which the persecutor is a government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that under all the circumstances, it would be reasonable for the applicant to relocate.”). In light of this information, Mr. H has demonstrated prima facie eligibility for relief from removal. Because Mr. H has stated new facts, supported by affidavits and other evidentiary material, which establish his prima facie eligibility for asylum, withholding of removal, and protection under the CAT, the Board should remand this matter to the Immigration Judge to develop the issues further at a full evidentiary hearing. 8 C.F.R. § 1003.2(c)(3); Matter of A-N- and R-M-N-, 22 I. & N. Dec. at 958; see also INS v. Wang, 450 U.S. 139 (1981). Appendices

IV.

BECAUSE MR. H NOW PROVIDES AMPLE EVIDENCE OF HIS IDENTITY AND THE IMMIGRATION JUDGE’S ADVERSE CREDIBILITY FINDING WAS BASED ON THE LACK OF THIS EVIDENCE, SUCH ADVERSE CREDIBILITY FINDING IS NOW UNSUPPORTED BY SUBSTANTIAL EVIDENCE. In its denial of Mr. H’s second motion to reopen, the Board cited to the lack of

evidence of Mr. H’s identity for its refusal to give the evidence submitted by Mr. H’s family any weight. See Att. R (BIA Decision, dated Feb. 19, 2010). In addition, the Board also noted that the previous motion failed to address the adverse credibility finding of the IJ and

Appendix Z-36

Tab Position 1

Immigrant Legal Resource Center June 2017

indicated that the adverse credibility finding prevented Mr. H from establishing prima facie eligibility for relief. Id. In response, Mr. H has submitted copies of his Indian passport,

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Indian drivers license, and school identification card which clearly establish his identity. See Att. T (Identity Documents). In doing so, Mr. H corrects the only concern the IJ had regarding Mr. H’s credibility. Since every additional discrepancy identified by the IJ in his decision to deny Mr. H asylum was either minor or non-existent, Mr. H’s current affidavit and the supporting documentation from his family must be deemed credible and should be fully considered by the Board. Because Mr. H’s application was filed before May 11, 2005, it is not governed by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). Therefore, “[m]inor inconsistencies in the record that do not relate to the basis of [his] alleged fear of persecution, go to the heart of the asylum claim, or reveal anything about [his] fear for [his] safety are insufficient to support an adverse credibility finding.” Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003); see also Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999); Chawla v. Holder, 599 F.3d 998, 1006 (9th Cir. 2010). “Any such reason

1234, 1238 (9th Cir. 2000) (per curiam) (internal quotation marks and citations omitted). If the IJ or the Board perceive an inconsistency, it can only form a basis for an adverse credibility finding if the applicant is given an opportunity to explain the perceived discrepancy and his explanation is thoroughly considered. Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009); Quan v. Gonzales, 428 F.3d 883, 886 (9th Cir. 2005).

Appendix Z-37

Appendices

must be substantial and bear a legitimate nexus to the finding.” Salaam v. INS, 229 F.3d

Furthermore, when making an adverse credibility finding, the Board must identify specific, cogent reasons for the finding, and the reasons must be substantial and legitimately connected to the findings. Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006). The Board may not base these determinations on speculation or conjecture unsupported by evidence in the record. Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000); see also Joseph v. Holder, 600 F.3d 1235, 1245 (9th Cir. 2010). Each reason on which the IJ relied, besides the lack of sufficient proof of identity, in making his adverse credibility finding in Mr. H’s case is unsupported by substantial evidence. Further, the recent events are well documented, thus, the IJ would not have found Mr. H incredible if he had the benefit of these documents. See Sections II, III, infra. As such, the IJ must reevaluate Mr. H’s credibility in the context of the wealth of new evidence. A.

Mr. H Has Now Provided Ample Proof of His Identity Which Eliminates the Only Discrepancy That Supports an Adverse Credibility Finding.

Appendices

In his decision denying Mr. H asylum, the IJ noted that Mr. H’s failure to provide any proof of his identity, besides a matriculation examination certificate, was “the most concerning to the Court.” Att. D (IJ Decision) at 14. This lack of corroboration of identity, along with alleged inconsistencies and vagueness in Mr. H’s testimony prompted the IJ to make an adverse credibility finding. Id.

On appeal before the Ninth Circuit Court of

Appeals, the Court affirmed that credibility finding. Att. G (Ninth Cir. Decision). In its decision, the Court specifically noted that identity was central to an asylum claim and, thus,

Appendix Z-38

Tab Position 1

Immigrant Legal Resource Center June 2017

agreed that Mr. H’s failure to offer sufficient corroboration of his identity supported an adverse credibility finding. Id. However, Mr. H has submitted with this motion copies of

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

his passport issued by the Indian government, copies of his Indian driver’s license, and copies of his school identification card. Att. T (Identity Documents). These documents clearly corroborate Mr. H’s testimony as to his identity. Thus, the main reason the IJ found Mr. H not credible and the only reason the Ninth Circuit affirmed such a finding no longer exists. As such, the Board must consider the documentation from Mr. H’s family and friends evidencing changed country conditions into consideration. B.

Any Other Inconsistencies or Alleged Vagueness in Mr. H’s Testimony the IJ Identified in Support of His Adverse Credibility Finding, are Either Minor or Nonexistent.

Besides the lack of corroboration of Mr. H’s identity, the IJ specifically identified two instances when Mr. H’s testimony was vague. Specifically, the IJ asserted that Mr. H’s testimony was vague in regards to describing the goals of the Shiromani Akali Dal Mann Party and in regards to his involvement in Mann Party activities. Att. D (IJ Decision) at 4, 8. In addition, the IJ claimed that Mr. H made a “material omission” in his testimony

record does not support the IJ’s findings because Mr. H testified with sufficient detail as to the purpose of the Mann Party and his involvement in their activities. Even if his testimony was vague, such vagueness does not go to the heart of his asylum claim. Further, Mr. H’s omission into the reasons for the police wanting to arrest his father was not material

Appendix Z-39

Appendices

concerning reasons why the police wanted to arrest his father. See Id. at 12. However, the

because he timely explained the omission and testified in detail regarding the additional reasons for his father’s arrest. 1.

Mr. H Testified in Detail Regarding the Shiromani Akali Dal Mann Party and His Involvement in its Activities.

The IJ’s conclusion that Mr. H’s testimony regarding the purpose of the Mann Party and his involvement in its activities is simply not supported by the record. As an initial matter, Mr. H was never a member of the Mann Party and never claimed such membership. Att. C (Transcript) at p. 19. Thus, it is not reasonable to expect Mr. H to be able to recite minute details regarding every goal of the party. Nevertheless, Mr. H testified with sufficient detail regarding the aims of the Mann party. Specifically, Mr. H testified that the Mann Party is “supporters of Sikh, a religion” and are requesting “Khalistan.” Id. at 3334. When asked what “Khalistan” stands for Mr. H responded that its for Sikhs and stands “for a separate country called Khalistan.” Id. at 20. For a non-member of the party, it is completely reasonable for Mr. H to be aware of the two main platforms of the Mann party

Appendices

which are lobbying for Sikh rights and demanding a separate Sikh state. Mr. H specifically identified these goals. In addition, contrary to the IJ’s assertions, Mr. H described in detail the activities that he participated in support of the Mann party and the activities that prompted his Father to be arrested. Mr. H testified that his father was arrested because “[they] were getting ready to observe the anniversary of Harjinder Singh Jinda and Sukhdeb Singh Sukha on October 9th.” Id. at 25. When asked what the anniversary was about Mr. H explained that

Appendix Z-40

Tab Position 1

Immigrant Legal Resource Center June 2017

Harjinder and Sukhdeb “were martyred on October 9th, 1992, while fighting for their religion.” Id. at 26. Mr. H then testified that in preparation for this event he and his father

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

would make “arrangements for this anniversary[] 10 to 15 days before . . . putting up posters on the wall, and . . . to set up the tent where all the people were going to gather.” Id. This testimony is sufficiently detailed and illustrates Mr. H’s knowledge not only of his father’s arrest but the event that caused him to be arrested. Tellingly, on cross the government attorney asked Mr. H detailed questions about what occurred during the October 9th celebrations and Mr. H testified “every year they observe the anniversary, in October, by observing the akhandpath . . .and after the akhandpath on the 9th, they have the final ceremony, which is called a Bhog.” Id. at 45. He then testified that the anniversary stood for the 1992 killing of Harjinder and Sakhdeb who were fighting for their religion. Id. at 45-46. Mr. H also testified that he and his father would also “anytime there was any meeting of the Akali Dal Mann Amristar [we would] attend it . . . [if] there were any program in our village from the Akali Dal Mann party, then from the village we would transport people on our tractor trolley.” Id. at 47. Similarly, when Mr. H was questioned

surrounding the arrest. Mr. H testified that his father was arrested the second time because his father was making arrangements for Baisakhi which “in [his] village [they] observe Baisakhi on 13th April.” Id. at 29. He continued testifying that “[they] made arrangements of langar” which is a holy food and “15 days before . . . [they] were collecting money for that occasion.” Id. at 29-30. This testimony illustrates that the IJ was simply incorrect in

Appendix Z-41

Appendices

about the second time his father was arrested he testified in detail regarding the events

holding that Mr. H testified vaguely regarding his activities in support of the Mann Party. Mr. H specifically described the events in which he assisted and described their significance. Additionally, he mentioned the exact manner in which he would assist in the preparation for these events. Thus, the IJ’s finding of vagueness was not supported by the record. 2.

Mr. H’s Omission Regarding His Family’s Alleged Involvement with Terrorists was Quickly Corrected by Mr. H’s Subsequent Testimony.

In his decision, the IJ considered it a “material omission” when Mr. H did not testify about the fact that Mr. H’s father was also arrested because the police suspected him of being involved with terrorists until asked about it on cross examination. See Att. D (IJ Decision) at 12. However, Mr. H was never asked about this on direct examination as his attorney only asked questions regarding Mr. H’s and his family’s involvement in the Mann Party. See Att. C (Transcript) at 17-41. Thus, he had no opportunity to discuss these allegations by the police until he was asked about them on cross examination. Once asked, Appendices

Mr. H testified in detail regarding the allegation, how they were unfounded, and how the police used that as an excuse to arrest his father and harass his family. See Id. at 52-53. It is completely reasonable that Mr. H did not mention this when government counsel asked him about the reason his father was arrested as the entire hearing up to that point had been predicated on his family’s participation in the Mann party. Thus, it is easy for a person to overlook this if it was not the focus during the entire hearing until the end. Consequently,

Appendix Z-42

Tab Position 1

Immigrant Legal Resource Center June 2017

this omission is simply not material because it is reasonable for Mr. H not to have discussed it until cross. Poignantly, when he did discuss it, Mr. H did so in detail.

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

Further, even if the Board believes that it was not reasonable for Mr. H to have omitted theses allegations, this alone, without the issue of identity and the alleged vague testimony, is not sufficient to sustain an adverse credibility finding. CONCLUSION Thus, because Mr. H has provided substantial proof of his identity and any other alleged discrepancy in his testimony is not supported by the record, the IJ’s credibility finding is unsustainable. Therefore, the Board must consider his affidavit credible and must consider the supporting documentation from his family and friends. Upon doing so, it is clear that country conditions have changed in India since Mr. H’s last hearing and he respectfully requests that the Board reopen his removal proceedings and remand his case to the Immigration Judge for consideration of the aforementioned new, material evidence which was unavailable at the time of his last hearing. DATED:

Respectfully Submitted,

Appendix Z-43

Appendices

__________________________ ATTORNEY NAME Attorney for Respondent

In re: Harsimran SINGH A# 079-974-211 PROOF OF SERVICE BY HAND DELIVERY I, XXX., declare:

Appendices

I am employed in the City and County of San Francisco California. My business address is XXXXX San Francisco, CA, 94108. I am over the age of 18 and not a party to the above named action.

Appendix Z-44

Tab Position 1

Immigrant Legal Resource Center June 2017

On July 11, 2011, I served a true copy of the following: RESPONDENT’S MOTION TO REOPEN PURSUANT TO 8 C.F.R. §§ 1003.2(c)(1), (3)(ii)

Tab Position 1

Removal Defense: Defending Immigrants in Immigration Court June 2017

by hand delivery to: U.S. Department of Homeland Security Office of the Chief Counsel 120 Montgomery St., Suite 200 San Francisco, CA 94104 I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration, made in conformity with 28 U.S.C. 1746, was executed at San Francisco, California on July XX.

__________________________ XXX

Appendices

Appendix Z-45

Appendices

Tab Position 1

Attorney of the Day Service ILRC Technical Assistance

Since 1979, the ILRC has provided a unique, nationwide consultation service called Attorney of the Day (AOD), in which your immigration case questions are answered by our expert staff attorneys. We offer consultations on several aspects of immigration law to attorneys, employees of nonprofit organizations, public defenders, and other practitioners that assist immigrants. There are two options available:

Contract Service

This option allows you to secure an on-going contract with us for a lower rate than the one-time consultation fee. You can create an individual or group contract so that members of your organization have access to this service. To begin the process, we obtain a signed contract and collect an initial deposit. Each time you contact us with a question, we will deduct the pro-rated charge from this deposit. You will be billed when your account falls below $50.

One-Time Consultation

This option allows you to ask questions on a one-time basis. Payment must be made by VISA, MasterCard, or American Express. Please have your credit card information handy when you contact us. There is a minimum charge of 1/10 hour. All charges will be prorated. AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm Pacific time. Inquiries will be answered within two business days, excluding Fridays. Questions can be sent to [email protected]. For more information, please visit https://www.ilrc.org/technical-assistance or call 415255-9499.

Reprint Permissions To reprint any of the information contained in an ILRC publication, please see our Reprint Permissions Policy available on our website at: https://www.ilrc.org/publications/reprint-permissions The following are guidelines for ILRC materials to appear in printed or electronic* format: All materials produced or published by the ILRC are protected by copyright. By submitting a request form, you agree to abide by our copyright restrictions and requirements. *For access to ILRC materials on intranets or public websites, ILRC will only allow for hyperlinking to the electronic materials already available on ILRC’s website, and grantee will specifically state that the ILRC material is available only for internal use and not for commercial use or mass distribution. For materials to appear in printed, electronic, or audio format, you may be granted a one-time usage license to copy and distribute the materials. You may not modify, delete or add any text, images or audio to the materials without express permission from the ILRC. All materials must be copied or distributed in whole, not in part. If the materials are to appear within another medium, or as a shortened version of the original, ILRC must review the particular usage before it can grant permission. All materials must be used in conjunction with the following credit line: Reprinted from [insert name of the original material] with permission of the Immigrant Legal Resource Center, San Francisco, CA, 415-255-9499; www.ilrc.org.

Subscribe to ILRC Listservs The ILRC maintains several e-mail listservs that address developments within specific areas of immigration law. We welcome you to join one or all of them. To do so, follow these instructions for each hotline, and YOU must self-subscribe to the ones of your choosing. You can join the listservs by visiting https://www.ilrc.org/subscribe, then select “Subscribe” and complete the simple form as instructed. There are eight lists to choose from: Education @ ILRC Want to stay informed about ILRC training opportunities and recent publication releases? This listserv will be dedicated to keeping you updated about our unique and timely educational resources. Famvisa Family immigration topics and updates, including legal developments and practitioner materials pertaining to accessing and applying the benefits of 245(i) through the LIFE Act. SIJS (Special Immigrant Juvenile Status) Immigrant children’s rights advocacy and policy updates. NACARA (Nicaraguan Adjustment & Central American Relief Act) Network of advocates, pro bono attorneys, and nonprofit agencies who are working directly with clients in the adjustment process.

ESSENTIAL ILRC PUBLICATIONS

Remedies and Strategies for Permanent Resident Clients ___________ Designed as a “how to” manual, we provide clear, concise and detailed explanations of the grounds of removal permanent residents are most likely to face; when the grounds of inadmissibility and deportation do and don’t apply; how to argue that they don’t apply, and the immigration remedies available for each. We also discuss our tips for working with clients to elicit the evidence necessary to successfully defend their cases. Hardship in Immigration Law How to Prepare a Winning Case in Waiver and Cancellation of Removal Cases. This uniquely useful manual, designed as a toolbox, is an essential reference tool for immigration practitioners. Practical and informative, it breaks down the elements that the BIA and federal courts have identified as relevant to claims of hardship, and demonstrates how to work with clients to elicit the information that will best present their hardship claims. Inadmissibility & Deportability A practical and easy-to-use manual for beginning immigration attorneys, paralegals, non-profit community-based organizations, and other advocates on the grounds of inadmissibility, deportability, and waivers. Written in plain English and filled with explanatory examples, charts, tips, samples, and practical suggestions, this guide covers the essential topics for representing immigrant clients, including health-related inadmissibility grounds, alien smuggling, visa fraud, document fraud, false claims to citizenship, public charge, unlawful presence, three-year bars, ten-year bars, permanent bars, past removals, criminal records, crimes involving moral turpitude, petty offense and youth exceptions, and more. A Guide for Immigration Advocates The Guide is unique among immigration law manuals because it is a comprehensive, detailed overview of immigration law that is both practical and easy to use. Instead of merely containing articles on immigration law topics, it is a how-to manual, containing clearly worded explanations of each subject and includes sample applications, charts, and practical advice on working with your clients to elicit the information you need in order to assist them efficiently and accurately.

To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/subscribe