An argument often raised in favor of a non-specialist appellate body reviewing immigration decisions is that the fresh eyes of an outsider will see things that those deeply involved immigration law don’t. Practitioners and judges deeply involved in immigration just don’t sit down and challenge the way the law works in certain areas because it is the way they have always worked. An example of a fallen axiom is our ideas about what happens when an alien’s U.S. citizen petitioning spouse dies. The old axiom was that to be able to adjust status based on a petition of a deceased U.S. citizen petitioner, the couple had to have been married for two years before the petitioning U.S. citizen died. The axiom came from the definition of “immediate relative” found at INA § 201(b)(2)(A)(I):
For purposes of this subsection, the term “immediate relatives” means the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the spouse files a petition under section 204(a)(1)(A)(ii) of this title within 2 years after such date and only until the date the spouse remarries.
The Ninth Circuit, in a 2006 decision, Freeman v. Gonzales, explained the axiomatic interpretation of INA § 201(b)(2)(A)(I) as follows:
The government, relying primarily on the statute’s second sentence (“In the case of an alien who was the spouse of a citizen ·”), reads § (b)(2)(A)(I) as “requir[ing] that in order to be an ‘immediate relative’ under immigration law the alien ‘spouse’ (wife) must have been married to the United States citizen ‘spouse’ (husband) ‘for at least 2 years at the time of the citizen’s death.’ ” Under the government’s proffered reading, if the citizen spouse dies before the second anniversary of the qualifying marriage, the alien spouse is no longer considered a “spouse” and is no longer entitled to an adjustment of status.
The court then obliterated this axiom, holding:
We conclude, through our review of the language, structure, purpose and application of the statute, that Congress clearly intended an alien widow whose citizen spouse has filed the necessary forms to be and to remain an immediate relative (spouse) for purposes of § (b)(2)(A)(I), even if the citizen spouse dies within two years of the marriage. As such, the widowed spouse remains entitled to the process that flows from a properly filed adjustment of status application. The two-year durational language in the second sentence of § 1151(b)(2)(A)(I) grants a separate right to an alien widow to self-petition, within two years of the citizen spouse’s death, by filing a form I-360 where the citizen spouse had not filed an immediate relative petition prior to his death.
With the axiom shattered, new rules had to be written and then Congress passed a new law making things even better for widows by eliminating the two-years-of-marriage requirement even when no petition was filed.
Recently, two other axioms fell by the wayside. One axiom held that if an alien in immigration proceedings left the United States, the immigration court lost jurisdiction and would terminate the case. The alien avoided an order of removal, though the alien still would not be able to return to the United States unless he or she had a visa and was admissible. Not too many years ago I represented a foreign student who was accused of violating his status and was placed in removal proceedings. Because of backlogs in the immigration court, his final hearing was not for a year and a half from when Immigration and Customs Enforcement started the removal process. The client was a young student set to graduate and did not want to stay in the United States for a year and a half, away from his country, his family, and employment his new degree would provide back home to vindicate his right to attend a school he was about to graduate from. I contacted ICE with the proposition that we arrange for the agency to grant him voluntary departure in lieu of proceedings and terminate removal proceedings. ICE had a better idea. It would give the young man his passport back and allow him to leave. Then, once he provided proof that he was gone, ICE would agree to terminate proceedings because he was out of the country. I scratched my head and went along as the plan, based on the axiom that the court lost jurisdiction when my client left.
The Board of Immigration Appeals shattered that axiom in a November 2012 decision, Matter of Sanchez-Herbert concluding that “[w]here an alien fails to appear for a hearing because he has departed the United States, termination of the pending proceedings is not appropriate if the alien received proper notice of the hearing and is removable as charged.”
Another axiom was that California state superior courts could reduce and expunge felony convictions. I remember as a new clerk at a law office, we filed papers to expunge a felony conviction. At the time, expunging a conviction often could ward of removability which is no longer the case. The California Expungement statute, Cal. Penal Code § 1203.4, applies to misdemeanors. Under California criminal law, many crimes are designated as both felonies and misdemeanors, referred to as “wobblers.” If a defendant was convicted as a felon for such a wobbler, the superior court judge would reduce the offense to a misdemeanor and then expunge it. The problem was that the client we filed the expungement motion for was not convicted of a misdemeanor, but rather a straight felony. I questioned how a straight felony could be reduced to a misdemeanor. I was told not to worry – the courts do it, it is axiomatic. Sure enough, the court did. Gnawing at me for years afterward is how this could happen – how could a felony be reduced to a misdemeanor when the crime could not be a misdemeanor by statute. In a decision this week, Lopez-Vasquez v. Holder, the Ninth Circuit stated the obvious, that a superior court that reduced a felony to a misdemeanor when the crime was not a wobbler was making a mistake. In the case, an alien was convicted of a straight felony drug selling crime, Cal. Penal Code § 11359. A superior court judge reduced it to a misdemeanor and expunged it. The alien argued that because the crime was reduced to a misdemeanor, it could not have been the straight felony that was reduced, but rather the superior court judge must have vacated the drug sales conviction and instead sentenced him to a wobbler drug possession charge, Cal. Penal Code § 11357, reduced it to a misdemeanor, and then expunged it. The Ninth Circuit rejected this hypothesis. The court wrote, “A more likely explanation of the inconsistency between the section 11359 conviction and the misdemeanor designation, is that the state court simply erred under state law in designating Lopez-Vasquez’s conviction as a misdemeanor. Such errors by state trial courts are not unknown.” After all these years, now I understand how a straight felony got reduced to a misdemeanor and expunged; not by some universal truth like how two parallel lines never intersect, but by mistake. Posted February 3, 2013.