On September 5, 2014, the Ninth Circuit issued a very important decision, Torres-Valdivias v. Holder. The decision held that when seeking a discretionary benefit, an alien who committed a violent or dangerous crime will not receive that benefit except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of status adjustment would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, such a showing might still be insufficient.

As courts are wont to do, the Ninth Circuit made it seem that this result is the natural result of existing precedent and there is nothing new here. Except the result was not foreordained and could be a dramatic change in immigration law.

The case involves a gentleman, Mr. Torres-Valdivias. At the outset, I must confess that the facts of the case as laid out by the court in the decision do not make a whole lot of sense to me, though, if misstated, admittedly do not make the holdings plainly wrong.

Here is how the court laid out the facts:

Petitioner Jose Guadalupe Torres-Valdivias, a native and citizen of Mexico, has resided in the United States since coming in illegally in 1989. He married a U.S. citizen, through whom he was granted conditional permanent resident status in 2003. That status was revoked in 2006, however, as a result of a 2001 conviction for sexual battery in violation of California Penal Code § 243.4(a). Upon revocation of his status, Torres-Valdivias was charged with being an alien illegally present in the United States and therefore removable under 8 U.S.C. § 1182(a)(6)(A)(I) [INA § 1182(a)(6)(A)(I)]. In removal proceedings in front of an Immigration Judge (“IJ ”), Torres-Valdivias applied for adjustment of status under 8 U.S.C. § 1255(i).

Mr. Torres-Valdivias  did sexual things to his step-sister who was four years younger than he. He did them before and after he turned 18. He was convicted in 2001 of violating Cal. Penal Code § 243.4(a), which states:

 (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

The case later informs us that Mr. Torres-Valdivias was sentenced to a misdemeanor (maximum sentence possible was one year) and received a sentence of confinement of no more than six months. The crime thus fell under what is termed the “petty crime exception,” discussed here.

Why I don’t understand the facts is that Mr. Torres-Valdivias was a conditional permanent resident as of 2003. USCIS could not revoke his permanent residence as taking away permanent residence is the job of the immigration judge, not USCIS, so I assume that USCIS terminated his permanent residence status when he applied to remove the condition on his residence because of the 2003 conviction. I also have to assume that USCIS did not know of the conviction in 2003 and Mr. Torres-Valdivias did not disclose it, or else it would have been dealt with before he became a permanent resident. Mr. Torres-Valdivias thus was a permanent resident that USCIS asserted should not have been granted permanent residence and placed him into proceedings based on his status before he became a permanent resident – a person unlawfully present in the United States.

The usual course for a person who became a permanent resident improperly is to be charged under INA § 237(a)(1)(A), a person who was actually inadmissible at time of his adjustment of status. The usual course for a person whose conditional permanent resident status is terminated is to be charged under INA § 237(a)(1)(D), a person whose conditional permanent residence status was terminated.

Because of the anomalies, I would hazard a guess that most likely USCIS actually improperly revoked his residence and no one challenged their authority to do it and then put him back in his prior unadmitted status, which again no one challenged. If someone knows the facts with all the details, please let me know.

Having been placed in his previous posture as a person present in the United States without having been admitted, he sought the same relief he sought in 2003, getting his green card through his United States citizen wife. Again, trying to fill in the gaps, if USCIS, and then the ICE attorneys prosecuting the case, operated under the fiction that he never was a permanent resident, they also must have operated under the fiction that he never used the benefit of an old petition to adjust under INA § 245(i).

By way of explanation, a person who entered the United States without being admitted or paroled cannot adjust status – obtain permanent residence status in the United States. There is an exception, INA § 245(i). To benefit under 245(i), there must be an old petition filed before May 1, 2001, related to Mr.Torres-Valdivias (how this works is a little complex and not necessary to understand for this posting). The old petition that makes 245(i) eligibility possible only works once. To re-adjust under  245(i) would thus require the existence of two old petitions, which is quite unlikely, or allowing him to use the petition a second time because the first adjustment was deemed a nullity. Anyway, a whole lot of novel and some improper things seem to have happened to get us to where we are now.

That the prior course of the proceedings is baffling is not the trouble with the case. The trouble is what happened when Mr. Torres-Valdivias applied for permanent residence. The stumbling block in front of him in seeking adjustment of status was the California Penal Code § 243.4(a) conviction. Aliens seeking adjustment of status cannot be inadmissible – there are scores of reasons a person cannot become a permanent resident. Some are waivable and some are not. But recall, the conviction causing all the trouble here was as a misdemeanor and with a sentence of less than six months, a petty offense which does not render someone inadmissible. So, Mr. Torres-Valdivias was adjustable under INA § 245(i) and was subject to no grounds of inadmissibility. While ordinarily, such a case would result well for Mr. Torres-Valdivias, after all, he had long residence, U.S. citizen relatives, including his wife, and presumably other equities, which would have weighed favorably against one misdemeanor conviction with minimal punishment. In fact, a BIA decision indicated that relief should not be that difficult to receive. The decision, Matter of Arai, stated:

Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.

In this case it did not and that is the hugely important issue in this case.

Had Mr. Torres-Valdivias needed a waiver for his crime, it would have been under INA § 212(h), a waiver for crimes of moral turpitude (and some other things). A regulation relating to 212(h), 8 C.F.R. § 212.7(d), promulgated in 2003, states that:

The Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.

Getting this waiver would have been extremely tough for Mr. Torres-Valdivias based on this regulation. But he didn’t need the waiver, so one might think he would have been able to adjust status. But this is not what happened. Instead, the immigration judge, the BIA, and the 9th Circuit held that as a matter of the immigration judge’s discretion, Mr.  Torres-Valdivias had to meet the extraordinary circumstances or exceptional and extremely unusual hardship tests laid out in the regulation and in an earlier decision of the Attorney General, Matter of Jean.

Matter of Jean was a case where an alien who was convicted of a serious crime, a shaken baby death case, was denied a waiver for her crime, found at INA § 209(c), so she could adjust status from her refugee status and she was denied asylum because the seriousness of the crime disqualified her as a matter of discretion. The conventional wisdom was that the case applied to those seeking waivers to adjust status and those seeking asylum. No one considered that the  extraordinary circumstances or exceptional and extremely unusual hardship tests applied to all applications in all circumstances.

After Torres-Valdivias v. Holder, these tests seem to apply to all aliens seeking any discretionary benefit from USCIS or the immigration court. The Torres-Valdivias court wrote:

Given the broad language employed by the Attorney General in Matter of Jean and its focus on his discretion, we uphold the BIA’s broad reading of Matter of Jean. In Matter of Jean, the Attorney General effectively overruled the BIA’s practice of granting discretionary forms of relief to aliens having been convicted of violent or dangerous crimes. Whether an alien applying for relief from removal has shaken a baby to death as in Matter of Jean or has committed sexual battery of a ten-year-old as in this case, the Attorney General has determined that these are reprehensible aliens to whom relief should be denied in all but the most extraordinary circumstances. Matter of Jean by its own terms is not limited to the waiver of inadmissibility context, as it also applied its standard to denying Jean’s application for asylum as a matter of discretion.

The Torres-Valdivias decision specifically allowed for overturning Matter of Arai. The decision also seems to overturn another case, Matter of C-V-T-, which enunciated the standard for evaluating waiving removability for permanent residents who committed crimes, Cancellation of Removal for Certain Permanent Residents, INA § 240A(a):

… an Immigration Judge, upon review of the record as a whole, “must balance the adverse factors evidencing the alien’s undesirability as a permanent resident with the social and humane considerations presented in his [or her] behalf to determine whether the granting of . . . relief appears in the best interest of this country.

Permanent residents with long residence up until now have been able to seek forgiveness for many crimes, many of which are violent or dangerous, particularly domestic violence-related crimes which lead many permanent residents to immigration court. After Torres-Valdivias, all discretionary relief becomes virtually barred to people who committed violent or dangerous crimes. Thus, this case is a game changer of monumental proportions – perhaps as monumental as IIRIRA. To make it worse, the Torres-Valdivias court concluded it has no jurisdiction to determine whether a crime is violent or dangerous. So far this case seems to have been overlooked. It may soon turn out to be one of the most important cases of this generation. Posted September 28, 2014.

Published Sep 28, 2014 - Comments? None yet

There was immigration-practice-related developments in the main stream news this week. First, the President announced that any executive orders he will make about immigration law will be after the November (2014) elections.  Also, it was reported that the immigration court backlog has reached 400,000.

The popular wisdom is that the President needs to issue executive orders to placate the pro-immigration forces that are part of his base. As the President cannot run for president again, why he has to keep his base happy is a little elusive to me, there may be some truth to this. Why he decided to wait till after the elections is obviously more of a political decision, which does not mean it is a bad reason, as running an administration, a country and a world is politics. That is why we call the study of running administrations, governments, countries and managing the global order is called political science. Just ask Frank Underwood.

I believe there is more than a political motive to take executive actions. Across the political spectrum  it is acknowledged that the immigration system is broken. When something is broken, if it matters, it needs to be fixed. If Congress cannot fix it, the chief executive has a duty to.

This is where the news of a 400,00 backlog in immigration cases comes from. Think about that number for a while. The government placed 400,000 in proceedings to remove them from the country, obviously because of their undesirability to live amongst us (or else, why deport them?). At least 370,000 are freely roaming the country, i.e., living their lives. Yet, their cases are hung up is a 400,000 long queue that gets longer and longer each year.

When I first began practicing immigration law in San Diego in 1994, there were three immigration judges. Within a few years the number expanded to eight judges. It has remained eight judges ever since. In 1994, there were about five deportation officers and some supervisors. They shared floor space with other government functions on two floor of the federal building – including a huge file room and three immigration courtrooms with room for staff, offices, and chambers(es?). They have since taken over both of the floors as well as space at a giant detention center. There are now more officers than any one practitioner could ever know and people behind the scenes practitioners never see. In other words, the business of arresting and detaining aliens became big business and the business of adjudicating their deportations stayed at the same Mom and Pop level for nearly two decades.
There were some modest stabs at reducing the backlog. The Department of Justice implemented “completion goals” in the mid-2000’s that hung over immigration judges heads, and like anyone who knows anything about litigation knows, actually hung over the litigants’ heads, and anyone who ever defended rather than prosecuted knows, hung over the defendants’ heads. The Board of Immigration Appeals began issuing one judge decisions, but at the same time it cut its size in half – perhaps some EOIR http://www.justice.gov/eoir/ bravado: “Appeals, we don’t need no stinkin’ appeals.” The backlogs persisted.  Draconian detention laws came into force to coerce aliens not to fight their deportations, yet still the backlogs grew.

The 400,000 backlog number probably is not the true picture of the backlogs. I assume the 400,000 reflects active cases pending. There are thousands upon thousands of inactive cases – administratively closed cases – where immigration judges decided that they wanted to allow cases to sit dormant rather than deciding them one way or the other. These days this is happening in cases of undocumented aliens eligible for the form of relief most can pursue – Cancellation of Removal for Certain Nonpermanent Residents.  Because only 4,000 of these can be granted in a year and the number granted far exceeds that number, immigration judges are administratively closing these cases rather than deciding on relief that cannot be granted. Other cases are being closed because the government is exercising its “prosecutorial discretion” not to pursue them or because the aliens are protected from removal by Temporary Protected Status, Deferred Action, because legal issues remain unclarified, or because other relief, such as adjustment of status, will ripen in the near future, to list some reasons.
With hundreds upon hundreds of thousands of cases pending, Congress could allocate money for more immigration judges and BIA members. But Congress won’t. If you consider the fact that aliens subject to deportation run the gamut from serious criminals to long-term undocumented who have families and homes and jobs, from people who have been here for 30 years to people who have been here for 3 months, if the immigration courts can only deal with a fraction of cases pending, triage is appropriate. Some sort of system to allow those less undesirable and, in fact, desirable, to stay so resources can be devoted to getting rid of people who “should be” gotten rid of should be implemented. “Should be” is the touchiest and hardest political issue of all, of course.

If you feel that the rising backlogs are not of any consequence – it does not matter – than executive action seems like an unnecessary, political move. However, if you believe that the laws designed to get rid of the undeserving and undesirable should be properly administered, but cannot be because of irrational resource allocation, then you should agree that some kind of prioritization should be enacted to try to give some semblance of rationality to who shall leave and who shall stay. Executive action is not the act of an over-reaching executive. It is the act of a man doing his job. Posted September 7, 2014.

Published Sep 07, 2014 - Comments? None yet

A few months ago I attended a talk by a judge on the 9th Circuit Court of Appeals. She stated that about two thirds of immigration appeals before the court are resolved before the cases are briefed. Because of active efforts by the court to reduce the docket, by compelling mediation, by reviewing cases initially to see if they are properly filed, and by ruling on initial motions to dismiss, the court is working to control its docket.

Recently, I received a notice from the Board of Immigration Appeals, the administrative appellate body above the immigration courts. Regarding motions to remand – motions to send the case back to the immigration court, the Board wrote:

The Board generally does not separately adjudicate motions to remand. Due to the Board’s heavy caseload, it cannot be predicted when a decision will be rendered in this case. If a briefing schedule has been set in this matter, the filing of [a] motion to remand does not change the deadlines. The briefs must arrive at the Board by the dates set in the briefing schedule.

Hypothetically, suppose a motion to remand is filed with the Court of Appeals and at the same time, in another case, a motion to remand is filed with the Board of Immigration Appeals. Now, suppose the opposing parties notify the Court of Appeals and the Board of Immigration Appeals that they do not oppose the remand motions.

In the case of the Court of Appeals, desiring to reduce its docket, will review the motion and non-opposition, and because the parties agree and assuming no glaring error has been discovered when the case is reviewed, remand the case. The case then moves to the next forum and can be presumably be resolved quickly. The Court of Appeals rids itself of a case, a decision is made quicker, needless briefing that no one will read is eliminated, and the entire system becomes more efficient and cheaper to the litigants and to the taxpayers that pay the judges and pay the government’s litigators.

In the case of the BIA, despite an unopposed remand motion, the case sits on the shelf. The parties get no resolution. The BIA’s docket remains large, meaning the case will take even longer to be looked at. The BIA may even require briefing on issues that the parties have indicated do not need resolution. The BIA’s docket remains large, the case is not resolved, and the system remains bogged down.

The BIA should reconsider its policy of letting easily-resolvable cases fester on its storage shelves. Culling the easily resolved cases will speed up justice and save money. It may even make participants in the system a little less cynical about how the immigration court and BIA function. Maybe. Posted August 28, 2014.

Published Aug 28, 2014 - Comments Off

I have written previously about how the Board of Immigration Appeals, the courts of appeal, and the Supreme Court have been struggling over how to determine whether an individual’s crime is a crime or moral turpitude or an aggravated felony. I wrote  three years ago about the 9th Circuit Court of Appeals’ en banc adventure in creating a missing element rule in trying to determine if a particular crime was a crime of moral turpitude or an aggravated felony in U.S. v. Aguila-Montes de Oca. A little more than a year ago I wrote  about how the Supreme Court overturned that decision in Descamps v. United States. I noted that there was still one issue still hot and unresolved in the area of determining how to characterize a conviction. This is the issue of whether an indeterminant record of conviction as to whether a person was convicted of an aggravated felony or a crime of moral turpitude can meet his burden of proving his eligibility for certain relief from being deported if those forms of relief require that one not be an aggravated felon or someone who committed a crime of moral turpitude. The BIA in Matter of Almanza-Arenas, and the Ninth Circuit Court of Appeals in Young v. Holder have said that a person cannot meet the burden when the conviction documents are indeterminant.

I wrote about how the Supreme Court, in Moncrieffe v. Holder,  shook the foundation of Matter of Almanza-Arenas and Young v. Holder,  but the decisions still stand. Last week, the 9th Circuit limited the impact of these cases in its decision in Rendon v. Holder. In Rendon v. Holder, the Court of Appeals explained that a person can only be found to have been convicted of the elements of a crime that specifically must have been found by the fact finder. The Court distinguished between divisible statutes, where a defendant is convicted of a crime defined by a distinct set of elements but other crimes with unique elements are bunched in the same statute, and a crime where any of a broad range of elements, of which the fact finders do not need to agree or which do not need to be specifically ascertained, result in a conviction. In such a case of “divisible elements,” one cannot be said to have been convicted of a crime defined by one of the divisible elements if it is possible to be convicted by another in the set of divisible elements. Specifically addressing Young  v. Holder, the Rendon court wrote:

Young held that, when a court applies the modified categorical approach, a petitioner cannot demonstrate eligibility for cancellation of removal on an inconclusive record because, in such a case, it is both “possible that Petitioner’s prior conviction constitutes an aggravated felony” and “possible that it does not.” []. That is because the modified categorical approach allows a court reviewing a prior conviction under a divisible statute to determine which of “several different . . . crimes” was at issue. [] In contrast, a defendant convicted of an indivisible statute has necessarily committed the one crime at issue, and that crime is either a match to the federal, generic crime, or it is not. The record is never inconclusive. Thus, if the petitioner establishes that the statute under which he was convicted is indivisible and punishes a broader range of conduct than the federal, generic crime, it is never possible for that conviction to qualify as an aggravated felony, and the petitioner has met his burden.

Rendon “clarifies” what is meant by ambiguity or indeterminantness in a conviction. It remains to be seen if the full court will allow for this weakening of Young or if it will hear Young en banc. Or, will the 9th Circuit finally rule on Matter of Almaza-Arenas, which has been pending before it since December 2010.  Posted August 27, 2014.

Published Aug 27, 2014 - Comments Off