Archive for March, 2010

Beware of secondary source errors when conducting legal research.

Sunday, March 28th, 2010

Something very big is happening in May at a U.S. Consulate abroad. More details later, but rest assured, if all goes well, it could be a highlight of my career. To prepare, I had to do some research today. What I learned is that sometimes writers can be very careless. They write things that just are not so, or at least appear not to be so. The issue I was researching is the effect of the 10-year bar at INA § 212(a)(9)(B) on battered spouses who are immigrating to the United States. The law says that there is an exception at 212(a)(9)(B) for battered women and children (they better not mean “women,” but rather, “people”) if there was a substantial connection between the battery or cruelty and the alien’s violation of the terms of the alien’s nonimmigrant visa. 212(a)(9)(B)(iii)(IV).

AILA put out a long “practice advisory” on a May 6, 2009, USCIS memo on the subject. The advisory states:

Certain battered spouses, parents and children are protected from accumulating ULP [unlawful presence]. An approved VAWA self-petitioner, and her children, can claim an exception from the three and ten year bars where there is a substantial connection between the abuse, the ULP, and her departure from the U.S.”

There is no footnote or reference to where these two sentences come from. It cannot be from 212(a)(9)(B)(iii)(IV), because that exception is if there is a abuse-related reason for violating a nonimmigrant visa, not departure. A strict reading seems to indicate that if an alien entered the country legally and then violated the terms of the visa because of abuse, the 212(a)(9) bars would not apply. However, it does not say that an alien who entered the United States without inspection or fraudulently would not be subject to the bar. Nor does it say that an alien who entered with a visa, overstayed or otherwise violated the terms of a visa, then got involved in an abusive relationship and then left the country because of the abuser is exempt from the bar. This is the implication of the practice advisory and it seems wrong to me. It is violation of the terms of a visa after lawful entry because of abuse that is the exception to the bar, not leaving because of abuse after unlawful entry or for violating the terms of a visa before encountering abuse that then motivates a departure.

Gordon, Mailman, and Yale Loehr, write, “Qualified self-petitioners are exempt from the three-year and ten-year bars to admissibility triggered by previous unlawful presence, if they demonstrate a “substantial connection” between the abuse that they suffered and their unlawful presence.” Immigration Law and Procedure§ 41.05(6)(b). This implies that if an alien enters the United States independently of abuse either legally, without inspection, or by fraud (again, say the alien did not meet the abuser until after he or she entered the United States) and then gets caught up in abuse that causes the alien to accrue too much unlawful presence, the bar would not apply. This is not what the statute says. Only if the alien entered with a valid visa and then violated its terms or overstayed because of abuse, would there be no 212(a)(9)(B) bars.

Kurzban’s Immigration Law Sourcebook gets it right. It states,”The provision does not apply to spouses or children subjected to battery or extreme, if there is a relationship between the battery or cruelty and the violation of the term of the spouse or child’s nonimmigrant stay.”

Kurzban and Gordon, Mailman and Yale Loehr both note that the bar does not apply if the alien arrived before April 1, 1997, citing IIRIRA § 301(c)(2). The AILA Practice Advisory does not mention this tidbit. Neither source that does mention it goes through the painstaking chain of statutes that leads to that conclusion which is somewhat ambiguous. Unfortunately, there does not appear to be any government source of interpretation to confirm that observation. I will find out in May if the government accepts the chain of statutes as leading to that conclusion. It is always good to go back and check original sources and to rely on sources that footnote their wisdom. The stakes are too high not too.  Published March 28, 2010.

 

The Ninth Circuit Issues a Counterpunch to Aden in Chawla

Sunday, March 28th, 2010

On February 14, 2009, I posted a column on Aden v. Holder in which the Ninth Circuit Court of Appeals denied the appeal of the denial of an asylum case for a Somali, Hassan Aden, because of his failure to present evidence requested by the immigration judge. The judge requested corroboration regarding the existence of the clan Mr. Aden asserted he belonged to and Mr. Aden’s membership in it. Mr. Aden presented some evidence, letters from three people from Minneapolis, Minnesota, the largest Somali community in the United States. The immigration judge was unsatisfied with this evidence because none of the three writers claimed to know Hassan Aden and no ethnological or other country evidence from scholarly sources was produced to show that the clan existed. The immigration judge denied asylum and the Board of Immigration Appeals agreed with the denial. In Aden, the Ninth Circuit concluded, based on the REAL ID Act, that credible testimony alone was not enough to prevail in an asylum case if corroborating evidence was requested and not presented. The court quoted the REAL ID ACT where it states, “Where 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. The court interpreted the requirement thusly, “Congress has installed a bias toward corroboration in the statute to provide greater reliability.” The Aden court, after quite thoroughly explaining all the reasons why a poor Somali asylum seeker would not be able to get evidence from “violently disorderly” Somalia or hire expert ethnologists to assist him, concluded that the immigration judge and the BIA could disregard his evidence. In my February 14, 2009, posting I discussed in some detail why rejecting the evidence was wrong.

As happens a lot, the opinion in Aden is representative of a faction in the Ninth Circuit; a faction that is opposed to the practice of second-guessing the determinations of the BIA in asylum cases. A few years ago I published an article on this subject. The arguments the faction make in support of its position are based on a principled application of the standard of review of asylum decisions found in the immigration act at INA § 242(b)(4)(B), “The administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” As a partisan of those opposed to second guessing, Chief Judge Alex Kozinski, put it in a 2004 case:

The question in this case is, in the immortal words of Humpty Dumpty, which is to be the master–that’s all. When it comes to the granting of asylum, Congress has said the BIA is the master. The statute provides it, the other courts of appeals recognize it and the Supreme Court keeps reminding us of it. But to no avail. Maybe there’s something in the water out here, but our court seems bent on denying the BIA the deference a reviewing court owes an administrative agency. Instead, my colleagues prefer to tinker–to do the job of the Immigration Judge and the BIA, rather than their own.

I personally cannot help but believe that the real objection to reviewing asylum cases is that many judges do not want to spend their time plodding through thousands of fact-specific asylum cases that ordinarily affect just a few people (the asylum seeker and perhaps his or her family), when they would prefer to spend their time and energy on more substantial legal and constitutional questions. Why would an appellate court judge want to spend hours and hours thinking about Hassan Aden when he can think about the meaning of an election law, the war on terrorism, or the first amendment? [See a retraction of this observation.]

After the attack in Aden by those favoring deference and their use of the REAL ID to foreclose meaningful judicial review, one would expect there would be a counter-attack. It came swiftly in a March 26, 2010, case, Chawla v. Holder.

There is an initial curious thing about the case. The court does not indicate whether the REAL ID applies to it. The court goes out of its way to conceal the date that Mr. Chawla applied for asylum and the date of the hearing. For cases commenced on or after May 11, 2005, the REAL ID applies. A little delving and one learns that the case was decided by an immigration judge in 2004 (the agency number is in the decision), so the REAL ID does not apply. However, the panel in Chawla does not indicate this. Instead of writing something like, “this lengthy decision is pre-REAL ID so its holdings are not relevant in the post-REAL ID world,” it hides the ball on the date the case commenced so holdings in the case appear relevant for post REAL ID cases. This is a problem in the case because any rule that is pro-alien in the case can be read as irrelevant to a case commenced after May 10, 2005. Nonetheless, the Chawla court, perhaps with the best case available to it after Aden, makes its rebuttal to the super-high burden Aden puts on aliens.

In Chawla, a Sikh sought asylum based on incidents of persecution he endured in India. The immigration judge denied relief, articulating six reasons for finding Mr. Chawla not credible. The BIA agreed with the immigration judge, and in fact articulated a seventh reason why Mr. Chawla was not credible. The court of appeals painstakingly went through all seven reasons and concluded that none of the reasons articulated by the IJ or BIA, considered either separately or in combination, provide a legitimate basis to question Mr. Chawla’s credibility. Interesting is that in Aden, the court did not explore what Mr. Aden’s explanations were for problems with the evidence, while in Chawla the court stressed that an immigration judge must consider an alien’s explanation for inconsistencies. One can imagine that during the Aden trial he was asked why he presented no ethnological reports about Somalia or why a letter writer spelled Mr. Aden’s name the way he did, or why he dids not know people in the United States – all problems the immigration judge noted in the case. Yet the court does not take his explanations into account. If Mr. Aden’s counsel or the government’s counsel did not ask to explain the inconsistencies, the immigration judge had to.

Another interesting thing about Chawla is that it is similar to Aden in that the case hinges not on contradictions in testimony, but on issues regarding documentary evidence – letters and newspaper articles in Chawla and letters in Aden. Both also discuss unavailable evidence. While failure to provide evidence from Somalia, a place more anarchical than simply disorderly, as the Aden court characterized it, doomed him, the Chawla court accepted that some evidence was not available. The missing document in Chawla was a “charge sheet.” The court wrote, “Here, however, the charge sheet was not easily available to Chawla because it was in India and under the control of a third party, the ITDC (India Tourism Development Corporation). Further, because the charge sheet was not easily available, Chawla’s failure to provide that corroborating evidence does not support the adverse credibility finding.” The Chawla case thus stands for the proposition that when an alien presents evidence or testimony that a document is not available, his case is not doomed. In Aden, to the contrary, problems with obtaining evidence will doom an asylum seeker even when it is quite obvious that the document is not available if the immigration judge decides that he should have gotten it and the BIA agrees because the Ninth Circuit will not second guess the immigration judge. In essence then, in Aden, an alien is doomed the moment he draws an immigration judge who resists granting asylum while under Chawla the alien can at least hope for a remedy in the court of appeals.

The Chawla court does give away that it is a pre-REAL ID case because it makes findings that Mr. Chawla is credible and these findings are determinative in the case. After the REAL ID, credibility is not determinative for not only must an alien be credible, but persuasive, and refer to specific facts, and mut also provide corroborative evidence if requested unless it is not reasonably obtainable. INA § 208(b)(1)(B).

Those sympathetic to those making asylum claims and concerned about the burdens placed on asylum seekers imposed by the REAL ID and Aden, can only hope that a panel of judges that takes seriously the need to review immigration judge and BIA decisions in asylum cases (and is sympathetic to asylum seekers) will soon get before it a case rich in questionable rulings on corroborating documentary evidence and provide a more-powerful counterpunch to Aden. Until then, we are better off with Chawla than with nothing.  Posted on March 28, 2010.

 

If you leave, there’s no coming back.

Sunday, March 7th, 2010

In 2005, immigration lawyers were all embroiled in advocacy and outrage over REAL ID legislation pending in Congress. The media covered the major purpose of the bill, requiring the states to issue drivers licenses and other identification only to documented aliens. The fact that undocumented aliens now cannot get drivers licenses or renew existing licenses in most states is attributable to the REAL ID Act. Immigration lawyers were not that involved in ID issues. Rather there were other aspects of the law we were concerned about. Most important to us was fear that the REAL ID Act would end judicial review. Of lesser concern were provisions that raised the level of proof required of aliens seeking asylum or other benefits from an immigration judge.

Like what happens so often when new legislation or new court cases come out, pundits and scholars misapprehend what the real impact will be. In the case of REAL ID, the affect of the legislation was to ease access to judicial review – nearly every appellate court decision since 2005 finds its jurisdiction in the REAL ID Act. The proof issues have become the major issue since 2005, and several recent posts in this blog have addressed post REAL ID proof problems.

Similarly, appellate court decisions that sometimes appear to fundamentally change how immigration law operates are not noticed and decisions that we fear will change everything, don’t seem to make any impact at all. One case that I believe is a stealth game changer, not necessarily because of the numbers of people affected by the case, but by the conceptualization it destroys, is Hassan v. Chertoff. Here’s what happened to Mr. Hassan. He applied for adjustment of status to that of a lawful permanent resident. The case does not say under what basis. It could have been through marriage to a United States citizen or some other family member or through his employment or investments or any number of other reasons. The fact that we do not get these facts is a foreshadowing that he is going to lose his case.

When an alien applies for permanent residence in the United States he has certain rights. Most important is that if he is denied, he can get his case re-heard in immigration court and can appeal a denial there to a higher administrative tribunal, the Board of Immigration Appeals (BIA), and in some cases [and thanks to the REAL ID Act] to a court of appeals. The law indicates that when an alien applies for adjustment of status, leaving the country causes the application to be abandoned. However, the law, in many cases, allows the alien to leave the country while the case is pending by first applying for and receiving an advance parole document. Mr. Hassan applied for and received an advance parole document.

The government accused Mr. Hassan of having links to terrorists. In a case like this, it is particularly beneficial to the alien that he can have access to the immigration court and the BIA, because it is not unusual that assertions of terrorist links are made of very thin cloth. In an amazing coincidence, the Hassan case informs us, Mr. Hassan traveled outside of the country and while he was away, his case was denied. The case facts share that he traveled to Saudi Arabia, another foreshadowing that he is going to lose. When he got back to the country and tried to enter with his advance parole document, he was told, “Sorry, pal. The advance parole allows you back in when you have an adjustment of status application pending. You do not have an adjustment of status application pending any longer, so you ain’t coming back.” He was ordered deported at the airport and presumably sent home. Having been sent home, he cannot go to immigration court and seek review of the denial of the adjustment of status application.

Mr. Hassan sued in federal district court saying two things: 1) I am supposed to be allowed back into the country to see an immigration judge, according to 8 C.F.R. § 1245.2(a)(1)(B).  2) The government had no right to deny my adjustment of status based on the flimsy evidence it had about my associations with terrorists. [I do not know Mr. Hassan and do not know if he had associations with terrorists or not and what the nature of the associations were. I think if they were bad, the court would have told us what they were. It is not like they were bending over backwards to protect his privacy.]

The Court of Appeals concluded that the advance parole expired when his case was denied. The fact that the amazing coincidence that his case was denied while he was outside of the country and the result was his inability to seek administrative review of the decision did not enter into the decision. The fact that all the government needs to do when it has a problem case is wait until the applicant leaves the country and then deny the case and then exclude and deport the alien when he shows up with this advance parole document also did not enter into the decision.

As for the second issue, the adequacy of the evidence that Mr. Hassan consorted with terrorists, the court concluded that while administrative courts have jurisdiction to review such issues, the judicial courts lack jurisdiction to consider them.

So, in light of Hassan, if you are an applicant for permanent residence and the government does not like you, forget about burying your grandmother, going on a business trip, making a religious pilgrimage (The hajj is to Saudi Arabia. Could that have been the purpose of Mr. Hassan’s trip there?), or even taking a vacation, as all the government has to do is hurry up and deny your case while you are gone and then when you come back, they can just deport you. The Hassan case says that is fine no matter how strong your family, property, and professional ties are to the United States, how long you have been here, or how many layers of review of an arbitrary decision you would have had if you never left.

It was not like the court had to decide the case this way. It could have easily held that concomitant with an adjustment of status application is the right to a review of a denial of it in immigration court. Until that right is either exhausted or waived, an alien with a valid advance parole document should be deemed an applicant for adjustment of status and allowed to re-enter the United States with the advance parole document. Otherwise, tha applicant’s due process right to administrative review is denied. Now that would have been a nifty decision and one that immigration practitioners would have assumed was the case before Hassan.  Posted 03/07/2010