The American Civil Liberties Union and U.S. Citizenship and Immigration Services announced that a settlement has been reached in a lawsuit, Alfaro Garcia v. Johnson, filed by the ACLU seeking to compel USCIS to conduct reasonable fear interviews for aliens detained by Immigration and Customs Enforcement who are prior deportees who are found in the United States and make Asylum claims. Under the settlement, USCIS will conduct these interviews within ten days of the alien’s being referred to USCIS for such an interview.
Let’s be clear who this lawsuit affects. Many people seek Asylum and related relief each year:
1. People who come to U.S. borders or airports (arriving aliens) and express fear of return to their countries;
2. People caught sneaking into the U.S. and upon apprehension express a fear of return to their countries;
3. People inside the United States who file Asylum applications with USCIS (affirmative Asylum claims);
4. People inside the United States who are apprehended by ICE and make Asylum claims as a defense to being removed.
Among those in all four of these groups are people who have already been deported – or people who, because of the seriousness of their crimes, are issued removal orders while still in prison for their crimes under a streamlined process. A person who has been deported and found again in the United States is subject to reinstatement of his removal order unless he was able to obtain waivers to bars to reentry to deported aliens or aliens without a proper visa to enter the United States. A prior-deportee is not eligible for Asylum, but is eligible for Withholding of Removal or Convention Against Torture relief if he can show that it is more likely than not he will be persecuted on account of established grounds of persecution or tortured by the government or with the government’s acquiescence if he is returned to his country.
People who make these claims are often people who upon return to their country after deportation had bad things happen to them and flee again to the United States. Others are people whose legal bases for claims for Withholding or CAT became established after their first deportations. For example, until recently, most domestic violence against women claims failed in the immigration system, but now this form of persecution is becoming more and more established as a basis for Asylum or Withholding of Removal. Similarly, gang-related violence, endemic in Mexico and Central America, is slowly emerging as a potential successful basis for am Asylum or Withholding claim. Others, desperate to avoid removal, raise claims perhaps previously denied or abandoned in a Hail Mary attempt to stay in the United States and ward off reinstatement.
Reasonable fear interviews are conducted by Asylum Officers who work for USCIS. This is not the only job of Asylum Officers. They also conduct “credible fear” interviews for arriving aliens seeking Asylum. Also, people who make affirmative Asylum claims are interviewed by Asylum Officers at Asylum Offices around the United States. There are two such offices in California, in San Francisco and Anaheim. There are other minor things Asylum Officers do, like re-issue Asylum grants in cases where a grant for some reason or another has lost its legal effectiveness (a discussion for another day).
Asylum Officers are few in number relative to the demands on the Asylum system. The flood of Asylum seekers from Cuba, Mexico, and Latin America have been in the news. Add to that streams from Syria, Iraq, Libya, Egypt, and African countries such as Ethiopia, Nigeria, and Somalia, all places where normal life is disappearing or disappeared, and one can see how the Asylum-adjudication system is severely overtaxed.
The lawsuit seeking expedition in conducting reasonable fear interviews is based on the fact that a regulation, 8 C.F.R. § 208.31(b), requires that a reasonable fear interview be conducted within ten days of referral to an Asylum Officer. No such timetable exists for the other types of interviews Asylum Officers conduct – reasonable fear interviews for arriving aliens and Asylum adjudications in affirmative Asylum cases. Because of the plain language of the regulation, USCIS acquiesced to working towards the goal of adjudicating reasonable fear interviews within ten days. This was not inevitable. The regulation ordering that an interview be conducted in ten days also contains the phrase, “In the absence of exceptional circumstances.” USCIS could have argued that the sea of humanity flowing to the United States making Asylum, Withholding, and CAT claims and the government’s inability to fund, hire, retain an adequate corps of Asylum Officers is an exceptional circumstance which should excuse delays. For whatever reason, USCIS decided not to fight.
By not fighting, the big winners are prior deportees making Withholding and CAT claims. And the ACLU, I guess. The big losers are anyone else who needs the services of the Asylum Office. For example, the settlement does not apply to arriving aliens making Asylum claims who need credible fear interviews. Curiously, though required by regulation to conduct a credible fear interview before releasing arriving aliens, ICE does send aliens to immigration court to seek Asylum there without such interviews. Perhaps USCIS will just release more arriving aliens without conducting credible fear interviews and allow these aliens to file for Asylum affirmatively or in immigration court – if a case is filed there. Otherwise, these aliens, who have never before had a bite at the Asylum apple and have less exposure to detention, legal processes, and understanding of what is going on (because, in part, of knowing less English), now go to the back of the detainee interview line. Are arriving alien initial Asylum seekers really less deserving of expedited initial interviews than prior deportees who already had an opportunity to seek Asylum?
Then there are the affirmative Asylum applicants. Many have been waiting years, perhaps four or more, for Asylum interviews. In response to a U.S. Congressman who contacted USCIS on behalf of a constituent who has been waiting three years for an Asylum interview, The USCIS Anaheim Asylum Office wrote:
In your inquiry, you expressed concern about the delay in the scheduling of your constituent’s asylum interview. I apologize for the fact that we have been unable to schedule your constituent for an interview in a prompt fashion. You may not be aware of the fact that the USCIS Asylum Division has been faced with a significant increase in individuals seeking asylum at our borders. We prioritize these individuals for screening interviews because they remain in detention until we complete their processing. In addition, we have been faced with an increasing number of individuals, like your constituent, who have applied for asylum. While we are presently trying to hire additional staff to deal with this increased workload, we have a growing backlog of asylum applicants who are waiting for interviews. In our office, we presently have approximately 14,000 other asylum applicants who are waiting for interviews, many for several months longer than your constituent has unfortunately had to wait.
Thanks to the prioritization of prior deportees, these waits are bound to increase. You may say that the wait for these people is less egregious because they are at least free in the United States while waiting for their interviews. Yes, but, remember that many asylees are heads of households. A wife and children are left behind in danger because of their inability to get to the United States to make an Asylum claim. With the goal of winning Asylum and then processing paperwork for ones family afterwards, the head of the family may come to the U.S. alone. Instead of a quick process and an interview and decision within a few weeks so the process of bringing the family can begin, the man languishes alone in the U.S. for three or four or more years while a mother is left alone with children in danger. Even without a family back home to worry about, can you imagine the stress on someone fearing returning to his country not being able to get a protected status and some finality after four years of waiting. Do prior deportees with Withholding claims merit the allocation of interviewer resources over these affirmative Asylum seekers and their families?
As for reissuances, re-issuances occur most often when an Asylee is applying to become a permanent resident. Re-issuances are not happening PERIOD. This means members of a certain group who have been waiting years and years to become permanent residents may never become permanent residents because USCIS will not re-issue Asylum grants.
Had the government been compelled to expand the Asylum Officer workforce and increase productivity without impacting other USCIS functions, then there would be great reasons to celebrate (except for those whose presence in the United States has no basis in the Asylum law and are just staying and staying because of the extreme delays in the handling of cases). As it is, all we have is the government re-determining the size of each slice of the Asylum-Officer pie going to different Asylum-Office functions. And I am not sure that after the settlement in Alfaro Garcia that the biggest slice is going to the most deserving function. Posted August 30, 2015.
Republican Party presidential primary poll leader, Donald Trump, issued a immigration policy plan this week. In the quiz below, excerpts from the plan (in bold) prompt multiple choice questions. See how you do in answering the questions prompted by Mr. Trump’s observations about immigration law and his policy prescriptions.
1. We are the only country in the world whose immigration system puts the needs of other nations ahead of our own. What is the number of refugees per 1,000 people in the following countries?
Jordan, Lebanon, Sweden, United Kingdom, United States:
A. 9, 11, 12, 14, 16
B. 15, 10, 15, 15, 15
C. 0.82, 3, 9, 250, 333
D. 333, 250 , 9, 3, 0.82
2. A nation without borders is not a nation. Which of the following countries has defined, internationally recognized borders?
C. United States
3. Any immigration plan must improve jobs, wages and security for all Americans. The National Center for Policy Analysis, an organization endorsed by Newt Gingrich and John Stossel on its website, discussing the North American Free Trade Agreement, stated:
A. Trade deals with developing countries invariably leads to a decrease in employment for the developed country.
B. Jobs lost in the developed country are replaced by higher paying jobs.
C. United States trade representatives fail to negotiate trade deals that benefit U.S. workers because their goal is fashioning a new world order based on international law.
D. Trade deals are influenced by corporations seeking treaties so they can move factories abroad to reduce labor costs and environmentalists who are anti-development.
4. The effects on jobseekers have also been disastrous, and black Americans have been particularly harmed. The Congressional Black Caucus did the following in response to the Comprehensive Immigration Reform legislation approved by the U.S. Senate in 2013:
A. Unanimously supported the legislation.
B. Met with President Obama and tried to persuade him to abandon the plan.
C. Met with the Senate’s Gang of Eight and implored them to make amendments to their plan so as not to harm employment opportunities for U.S. citizens.
D. Rejected calls to unify with other minority rights organizations and instead voted to defeat the legislation in the House of Representatives.
5. The costs for the United States have been extraordinary: U.S. taxpayers have been asked to pick up hundreds of billions in healthcare costs, housing costs, education costs, welfare costs, etc. Which of the following is true?
A. According to the Institute on Taxation and Policy Analysis, the 11.4 million undocumented immigrants currently living in the United States collectively paid $11.84 billion in state and local taxes in 2012.
B. The Social Security Administration estimates that it collected $13 billion in pay-roll taxes from unauthorized immigrant workers and their employers in 2010, while very few undocumented workers can collect Social Security.
C. The Texas State Comptroller reported in 2006 that the 1.4 million illegal immigrants in Texas alone added almost $18 billion to the state’s budget, and paid $1.2 billion in state services they used.
D. All of the above.
6. Triple the number of ICE officers. Which of the following is true?
A. ICE Special Agents earn between $40,000 to $68,000 per year plus benefits and can retire at age 50 or after 20 years of service.
B. ICE has an estimated 15,000 to 20,000 employees in 400 domestic and 50 international offices.
C. ICE is the second largest criminal investigative agency in the U.S. government, following the FBI.
D. All of the above.
7. ICE officers should be required to issue Notices to Appear to all illegal aliens with criminal convictions, DUI convictions, or a gang affiliation. Which of the following is true?
A. In 1997, Congress passed and President Clinton signed a law that made dozens of crimes aggravated felonies leading to near-certain deportation for tens if not hundreds of thousands of immigrants.
B. As of July 2015, the backlog of removal cases in immigration court is approximately 454,000.
C. The Constitution’s Due Process Clause guarantees illegal aliens a fair hearing before they are deported.
D. All of the above.
8. End birthright citizenship. This remains the biggest magnet for illegal immigration. Which statement is true?
A. Once an illegal immigrant has a child born in the United States, it is virtually impossible to deport that person.
B. The parent of a child born in the United States has an almost automatic opportunity to become a permanent resident.
C. Countries that do not have birthright citizenship have far more generous laws regarding acquiring citizenship by blood than the United States does to avoid widespread statelessness among children.
D. The Constitution provides American citizens the right to be with their foreign immediate relatives, i.e., spouse and children, enforceable under the venerable Writ of Mandamus.
9. End birthright citizenship. This remains the biggest magnet for illegal immigration. Which of the following is required for an illegal alien present in the United States to attain lawful status based on having a child who was born here?
A. The child is at least 21 years old.
B. The parent entered the United States legally.
C. The parent has not broken any of hundreds of criminal or immigration laws.
D. All of the above.
10. We need to stop giving legal immigrant visas to people bent on causing us harm. From the 9-11 hijackers, to the Boston Bombers, and many others, our immigration system is being used to attack us. Which of the following is true?
A. The State Department requires all persons ages 14-79, to undergo an interview before a visa is issued.
B. If the State Department has the slightest suspicion a person belonged or provided any support to a gang, criminal organization, or terrorist group, that person will not be issued a visa to come to the United States regardless of what family he has in the United States and no court can review the decision.
C. Under current law, a person who supported efforts to overthrow a government, even a government the United States may want overthrown, like Syria or Iran or the Taliban in Afghanistan, is inadmissible to the United States.
D. All of the above.
1. D Jordan has 406 times as many refugees per 1000 citizens as the United States.
2. C Obviously, countries without universally accepted borders are still countries.
3. B There are always going to be winners and losers in any agreement; the question is really what the net gain is.
4. A The CBC unanimously supported the legislation. One would think they would vote for what is in the best interests of their constituents and certainly not against their best interests.
5. D While there are costs to illegal immigration, there are offsetting revenue gains even before calculating the positive impact of the labor of illegal immigrants on the economy.
6. D It is not going to be cheap or easy to hire and build an infrastructure for 40,000 more government employees.
7. D ICE is already working full bore to find and deport criminal aliens. The unwillingness of Congress to fund the deportation apparatus causes huge bottlenecks.
8. C Having a U.S. citizen child does not provide much protection against deportation.
9. D The obstacles to immigrating one’s parents are huge and require more than 21 years of planning.
10. D Immigration attorneys deal every day with long delays based on security checks by the Department of State and arbitrary denials of visas for innocuous reasons.
Posted August 23, 2015.
In my last post, I discussed puzzlement that the Ninth Circuit Court of Appeals did not make a Rendon analysis in its decision to remand Madrigal-Barcenas v. Lynch. Just a week later, two days ago, the Court issued a decision in Lopez-Valencia v. Lynch, a case involving theft, Cal. Penal Code § 484. Using a Rendon analysis, the Court concluded that the California theft statute cannot be considered a theft offense as it is overbroad and indivisible. This is the type of result one might expect in a Rendon analysis of a drug paraphernalia statute. A caveat: the case does not address whether Cal. Penal Code § 484 is a crime of moral turpitude, the usual way the statute affects aliens under the immigration laws. Posted August 19, 2015.
On August 10, 2015, the Ninth Circuit remanded Madrigal-Barcenas v. Lynch, which was at the Supreme Court along with Mellouli v. Lynch. Mellouli v. Lynch, is the Supreme Court case decided on June 1, 2015, that held that a Kansas conviction for possession of drug paraphernalia, in the Mellouli case, a sock in which Mr. Mellouli stored four Adderall pills, was not categorically a removable offense as a controlled substance violation, INA § 237(a)(2)(B)(I). The Kansas statute, Kan. Stat. Ann. §21–5709(b), proscribes “possess[ion] with intent to use any drug paraphernalia to,” among other things, “store” or “conceal” a “controlled substance.”
The Supreme Court remanded to the Ninth Circuit to deal with it in light of Mellouli. In Madrigal-Barcenas, Mr. Madrigal-Barcenas was convicted under Section 453.566 of the Nevada Revised Statutes which states, “Any person who uses, or possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, prepare, test, analyze, pack, repack, store, contain, conceal, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this chapter is guilty of a misdemeanor.” This had rendered Mr. Madrigal-Barcenas ineligible for Cancellation of Removal for Certain Nonpermanent Residents, INA § 240A(b)(1). The Ninth Circuit remanded the case to the Board of Immigration Appeals which will in turn remand the case to the immigration court to “consider, in the first instance, the potential application of the modified categorical approach, as well as the merits of Petitioner’s request for cancellation.”
In a nutshell, the issue in Mellouli and Madrigal-Barcenas was whether a statute is overbroad and what to do in such a case. The Immigration and Nationality Act lists scores of reasons a person can be removed from the United States. Many relate to criminal conduct. Many of those reference federal criminal statutes. Of course, persons convicted of state crimes are also removable for criminal convictions. The trick is to see if the state crime is a match for the federal one or a match for federally proscribed conduct. Testing for a match in state criminal elements to federal criminal elements or the elements of an offense that is removable conduct is called the Categorical Analysis or Taylor Analysis, named after the North Carolina law enforcement official, Andy Taylor, I mean based on a Supreme Court case, Taylor v. United States. When a state statute is overbroad, it usually implies that the state statute includes crimes that are analogous to federal crimes (or conduct) and crimes that are not.
The usual next step, the Modified Categorical Approach, tests whether the record of conviction contains information to determine what elements form the basis for the conviction. In the Mellouli and Madrigal-Barcenas cases, the statutes were considered overbroad because a person could be convicted of possessing paraphernalia for using or storing a drug that is not a federally controlled substance as there are some drugs that are illegal in a state but are not found on the federal drug schedules. The modified categorical test would look at the conviction record to see if a drug was named and whether that drug is a federally controlled substance. In Mellouli, apparently there was no need to remand for the modified categorical analysis because it was already implicitly accomplished as no controlled substance was named in the conviction documents. In Madrigal-Barcenas, the case was remanded to conduct the modified categorical analysis. The Categorical and Modified Categorical approaches are not new concepts. I have written about them repeatedly over the years, including initially here.
While the categorical and modified categorical analyses have, as stated in Mellouli, a long pedigree in immigration law, there have been attempts to erode the strictness of the tests as they tend to exonerate people who obviously committed crimes that are removable offenses. The Supreme court, in its 2013 decisions in Descamps v. United States and Moncrieffe v. Holder revalidated the categorical and modified analytical approaches. Moncrieffe explicitly underpins the Supreme Court’s holding in Mellouli.
Based on this analysis, the Ninth Circuit was justified in remanding Madrigal-Barcenas to consider the modified categorical analysis. However, there is another analytical step not mentioned in Madrigal-Barcenas, a step discussed in the Ninth Circuit’s decision in Rendon v. Holder. The Ninth Circuit did not take this step.
Under a Rendon analysis, the issue is not the various types of conduct that can lead to a criminal conviction in a particular criminal statute, but what a judge or jury must find to lead to a conviction. In Rendon, the issue was whether a burglary under Cal. Penal Code § 459 was an aggravated felony. To be an aggravated felony, § 459 had to match the federal definition of a theft offense. The federal definition requires an unlawful entry into a car with the intent to steal the car. The crime under § 459 is entering a locked car to steal or commit a felony. A factfinder does not need to determine whether the defendant intended to steal something or commit some other felony to convict. As the Rendon court termed it, stealing or having some other felonious intent are not alternate elements of the crime (elements need to be found by the factfinder) but rather alternate means of committing the crime (means do not need to be specifically found by the factfinder).
Applying the Rendon analysis to the crime in Madrigal-Barcenas, Section 453.566 of the Nevada Revised Statutes, if a Nevada jury would not have to determine what drug the paraphernalia was for, then the issue of what drug the paraphernalia was for would be an alternative means of conviction and not alternative elements of conviction. A quick perusal of Nevada jury instructions should indicate whether a jury must find a specific drug relating to the paraphernalia making the drug an element of the crime, or whether no finding of a particular drug need be determined by a judge or jury, in which case the crime is not divisible, but rather simply has alternative means of commission. In such a case, the crime would not render one removable for a drug-related offense because a specific drug is not an element of the crime regardless of how obvious it is that a specific, perhaps federally illegal, drug was related to the paraphernalia. Had the Madrigal-Barcenas court taken this step, it might well have found that the paraphernalia conviction was not a divisible offense and remand for the modified categorical approach unnecessary. If it found the statute was not divisible, remand would be warranted so Mr. Madrigal-Barcenas could pursue Cancellation of Removal, but not to determine whether his crime barred him from the relief.
It should be noted that under the California Criminal Jury Instructions, to find a person guilty of possessing drug paraphernalia in California under Cal. Health and Safety Code § 11364(a), a jury must find merely:
1. The defendant [unlawfully] possessed an object used for unlawfully injecting or smoking a controlled substance;
2. The defendant knew of the object’s presence; and
3. The defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance.
As no specific drug needed to be identified, the crime was not divisible and would not be a removable offense.
The Madrigal-Barcenas court should have conducted a Rendon analysis and completely resolved the issue of removability in the case. Posted August 16, 2015.