It has finally happened. The Ninth Circuit ruled in the case of Almanza-Arenas v. Holder. The case at the Ninth Circuit was on review from the Board of Immigration Appeals. It stood for the proposition that when a record of conviction is ambiguous as to whether a crime makes one ineligible for relief, then the person seeking relief fails to meet the burden of eligibility, which is on the applicant, and therefore cannot be granted the relief. The issue arises mostly in considering whether a crime is a crime of moral turpitude or an aggravated felony, classes of crimes that disqualify aliens from many forms of relief. The Ninth Circuit reversed the BIA. Assuming the government does not seek re-hearing in Almanza-Arenas and assuming the BIA adopts it nationwide, the five year experiment in reading facts from outside of the record of conviction to determine conduct has come to the end with a victory for not reading outside of the record.

It has been a long ride to get to this day. I have discussed it many times, including here. A lot of decisions got us here, including two last year at the Supreme Court, Moncrieffe v. Holder and Descamps v. United States. We had to absorb concepts like categorical versus modified categorical approaches, missing element cases, and divisible element statutes versus indivisible element statutes with multiple means as discussed here. We have yet to have such a case yet, but I have already seen in practice analyses of a divisible statute where the elements of the divisible crime have multiple means and missing elements.

This was not a right wing anti-immigrant versus left wing pro-immigrant struggle. Many on the right abhorred that immigration courts had to make findings about criminal cases that were not what a person admitted as a basis for the conviction or a jury found to render a guilty verdict. Some on the left abhorred that people who did bad things to the defenseless would get off on technicalities. The real split was not left-right, but rather those that adhered to the principle that the only trial about a crime should be the criminal trial and not the immigration court trial, versus those that found detestable that people who everyone knew did bad things could avoid the consequences of them. An adult could avoid the consequences of engaging in sexual conduct with a child by pleading to a charge that avoided age.  A person stealing from a store could avoid responsibility for theft by pleading to burglary.  A person could avoid the consequences of a firearm offense because the statute of conviction included violations involving antique weapons, even though the conviction was not based on an antique.

What to me particularly commends the approach that immigration courts should not retry criminal cases is the large number of cases in which I have been involved where the immigration judge got it wrong, finding an aggravated felony or a crime of moral turpitude was committed without sound basis. Immigration judges would rely on police reports where witness or victim statements contradicted what the perpetrator said. Immigration judges would read turpitude into outside-of-the-record conduct that was not a basis for the conviction. The days of such fanciful judicial imagination hopefully are behind us. This does not mean aliens will be going scot free en masse. Firstly, even if a crime is not an aggravated felony or morally turpitudinous, it can still be a deportable offense. Relief is discretionary and judges can look outside of the record of conviction to consider discretion. As Justice Sotomayor wrote in Moncrieffe:

… having been found not to be an aggravated felon, the noncitizen may seek relief from removal such as asylum or cancellation of removal, assuming he satisfies the other eligibility criteria. But those forms of relief are discretionary. The Attorney General may, in his discretion, deny relief if he finds that the noncitizen is actually a member of one “of the world’s most dangerous drug cartels,” just as he may deny relief if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons. As a result, “to the extent that our rejection of the Government’s broad understanding of the scope of ‘aggravated felony’ may have any practical effect on policing our Nation’s borders, it is a limited one.

I, for one, hope that all this analysis of what is not in the record of conviction as opposed to what is is behind us. There is a ton of stuff to fight about in immigration law interpretation so it is not like practitioners will have nothing to do now. Posted November 11, 2014.

Published Nov 11, 2014 - Comments? None yet

Saying something is “political” is not necessarily pejorative as the making of government policy is a political act. Nonetheless, when you see the actual political biases in actions, it is hard to be sanguine about the hypocrisy. A recent example is the matter of Cubans surging  to America’s shores. This flood is not much smaller than the flood of Central Americans  in the news earlier in the year, which has been largely stemmed despite the rampant gang violence, domestic violence, poverty, and drought endemic to that region which has not abated, thus condemning residents there to misery.

Despite the fact that the Cubans fleeing do not have it as bad as the people fleeing Central America and thus less deserving of our sympathy, and the fact that because of the Cuban Adjustment Act these Cuban arrivals cut to the front of the mythic line people should not cutting to the head of, and the fact that there is no review of the merits of their request to stay in the United States, there is no objection to the influx. No one is accusing the President of trying to destroy America by letting these Cubans in.

Why? Here’s the political hypocrisy. Cubans go to Florida. Cubans historically have voted Republican  though as of late this is less true. They are a large voting bloc in Florida.  Are Republicans going to make a fuss about Communism-fleeing Cubans coming to America and risk alienating Cubans, Republican and Democratic, who vote in this important swing state? Obviously not. The difference between the reaction to the population waives is not based on a different evaluation of human rights concerns, but quite simply because of politics. Posted November 8, 2014.

Published Nov 08, 2014 - Comments? None yet

A couple of weeks someone was talking to me about how she wanted an accommodation from someone within a big bureaucracy. She did not get it and was perplexed and slightly angry that she got know. As she saw it, a little accommodation would have been more efficient not only for her but for the big bureacracy. Ever the contrarian, I explained that if certain things need to be accomplished by tens of thousands of people, part of the large bureaucracy, then having these tens of thousands of people each do what needs to be done their own way at their own speed, on their own clock would lead to disaster.

Invigorated by my positive spin on bureaucracy, I discussed the issue soon thereafter with an immigration lawyer colleague. He added another insight. If everyone was able to be flexible, then corruption could enter the system. A person with the authority over someone, like a boss over a subordinate or a cafeteria cashier over a customer, could exact fees or favors for service. It is this kind of corruption that many clients say they are escaping when they come to the United States. Often clients familiar with the corruption in their homelands expect that I have pull and can make things happen that should not or make things happen faster by greasing the wheels. Fortunately, there is little corruption visible in the immigration system. This is at least partially because the bureaucracy is somewhat inflexible.

Armed with my new magnanimousness towards bureaucracy and thus ready to face the large government immigration bureacracy with a patience and empathy and some gratitude for its incorruptibility, it did not take me long to become disabused of my theory. That is because the theory lacked an important component – that a bureaucracy also has to be efficient. Barring efficiency, you end up with an incorruptible but frustratingly inefficient organization.

In the last two weeks this is some of the shenanigans I had to deal with:

1) A client could not be considered for release from immigration detention until after his first court date, nearly a week later, because the officers in charge of releasing the client had to relinquish their file to the government attorneys to prepare for court a week before the hearing. Giving away the file for nearly a week had to happen even though the attorneys’ office is co-located with the officers’ office and preparation for court could not have lasted more that a few minutes.

2) Paperwork delivery was delayed because government officials would not accept documents I hand delivered to them at a detention center. The same paperwork had to be brought to the same front desk by Fedex.

3) A client’s interview for a green card was divided into two parts scheduled three weeks apart in two separate offices by two separate adjudicators. The first interview could not be completed because the officer did not have the file for the second interview. Three weeks later, the second interview could not be completed because that officer did not have the file from the first interview. These offices have been conducting interviews day after day for fifty years and yet twice the agency could not get two files to the right place at the right time twice.

4) A client’s case is stuck at a USCIS local office. To ask about a case requires making an appointment at the local office. Appointments are mainly unavailable or, if available, availability is two weeks out. Traveling to the office takes a half hour. Waiting for the appointment takes another hour. Then, more often than you would think, the answer you get is not satisfactory. USCIS implemented a new system, e-request, where you can fill out an online form to inquire about a case. The answer is supposed to come by email in a couple of weeks. I made the inquiry about the stuck case through e-request. I never got a response. The rule is that if the e-request does not work, you should call USCIS’s customer service telephone hotline. So I did. When I called, I was told that no officer was available right then and an officer would call me back in an hour and a half. Not often am I able to be at my desk for an hour and a half, but that day I was. An hour an a half later, an officer called me to tell me after a few minutes of computer searching that I would need to make an appointment at the local office. Hey, Officer, I did not set up e-request and the customer service hotline systems, you did. Three weeks down the drain.

I could provide examples of other recent screw ups – an appointment notice set for a day in 1970, or a request for evidence that requested a change on a certain page of form and also informing me that this same certain page was missing, which it wasn’t. But these kind of mistakes are clerical errors which are bound to happen. The four episodes above are systemic bureaucratic problems that will probably never be fixed because the bureaucracies are so large and intractable that the people involved in them would rather just shrug and express resignation than actually fix them. Posted October 18, 2014.

Published Oct 18, 2014 - Comments Off

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 Off