Appellate courts reticent to get involved in interagency disputes.

Saturday, November 30th, 2013
By: Jonathan MontagJ.D.

Government agencies. There are lots of them. Their functions overlap. People uninvolved from day to day with the interaction of government agencies and learn about them from the media are probably most aware of the interactivity of the intelligence agencies. A fault found after 9-11 was the failure of the many intelligence agencies and law enforcement agencies with intelligence functions to interact.

Immigration law execution and enforcement are controlled by several agencies in different departments. There is the Department of State which issues visas abroad among other immigration functions, The Department of Homeland Security which is in charge of U.S. Citizenship and Immigration Services (USCIS), which issues immigration benefits in the United States, Immigration and Customs Enforcement (ICE), which enforces immigration laws within the United States and runs its own benefit programs, Customs and Border Protection (CBP) which polices the border and inland checkpoints and provides some benefits, the Department of Justice which is in charge of the immigration courts and the Board of Immigration Appeals (BIA) and some employment enforcement and adjudicatory functions, and the Department of Labor which provides benefits and enforcement in the workplace.

All these agencies must interact from time to time and obviously must strive not to overlap functions or step on each others toes, but like too many cooks, unwanted jostling occurs and the broth of justice could be spoiled. As a result an individual customer, people or companies (corporations are customers, my friend) can find themselves in dispute with several government agencies at once or can have one agency agreeing with him or her or it and another in opposition.

When people are in dispute with the government, people are wise, as we know from Judge Wapner  (please don’t try to learn anything from Judge Judy), not to take the law into their own hands, but rather to seek resolution in court. My thesis today is that when a person is in dispute with the government and the different agencies are in dispute, the courts are indifferent to the agencies’ restraints in resolving the dispute and leave it to the agencies to resolve their turf wars. I provide three examples.

The Immigration and Nationality Act calls for the mandatory detention of certain aliens while they fight or await deportation. Regulations define the roles of different government players in the process. One distinction in the regulations is that detaining arriving aliens is the function solely of CBP and ICE. Immigration courts have nothing to do with it.  This is in contrast to aliens found in the country where custody determinations are first made by CBP or ICE, but are reviewable by immigration judges and the BIA.

The mandatory detention of aliens can stretch for many years. People have sued that such prolonged detention is unconstitutional. Remember, immigration proceedings are civil matters resolving issues relating to forcing someone to leave the United States, and not criminal matters where the detention is a punishment. Courts have agreed, particularly in the Ninth Circuit, and have placed requirements that aliens receive bond hearings from neutral immigration judges. Many aliens subject to mandatory detention are arriving aliens. Contrary to a long history and clear regulations, arriving alien custody issues now are under the jurisdiction of immigration courts because the appellate courts are uninterested in the jurisdictional borders between agencies and departments.

Another example is battered spouse adjudications and removal proceedings. A person can seek permanent residence in the United States after being abused by a U.S. citizen or permanent resident spouse. The first step is filing a self-petition with USCIS asking to qualify as a spouse who has been battered spouse in a real relationship with a  U.S. citizen or permanent resident spouse. USCIS has a team of adjudicators trained specifically to make such battered spouse determinations. If a person finds himself in removal proceedings and the self-petition is approved, he then makes an application with the immigration court to adjust status, i.e., become a permanent resident. Now, what happens if the immigration judge, for vague reasons decides, contrary to USCIS, that the individual is not a battered spouse. If an appeal is made to a court of appeals, is it going to parse through the USCIS regulations and immigration courts rules and governing cases and decide whether th USCIS decision or the immigration judge’s decision is supreme? No. It will look at the last action by the agency and see if it is illegal. If not, it doesn’t care about the USCIS – Immigration Court turf war. This is what happened in the case of Abdulrahim Kewan (9th Circuit Case No. 04-70630).

Finally, under the immigration laws, aliens in removal proceedings can apply for permanent residence in immigration court. However, immigration courts have no jurisdiction to adjust the status of an arriving alien (part of the segregation of immigration courts from arriving aliens discussed above). USCIS has this role. Now what happens if an arriving alien is ordered deported by an immigration court (for those really into this, assume the arriving alien sought asylum) and then applies for permanent residence (assume the arriving alien married a United States citizen). When the arriving alien becomes a permanent resident, he will get a green card in the mail. He will now have a green card and a removal order. As a kid would ask, “What would win – the deportation order or the green card?”

The savvy reader may say, file a motion to reopen with the immigration court or the BIA to show the person is now a permanent resident and the court or BIA should reopen and vacate the deportation order. Except, the Immigration and Nationality Act places numerical and time restrictions on motions to reopen. (INA § 240(c)(7)(one motion to reopen within 90 days of the removal order). Regulations (8 CFR §§ 1003.2 and 1003.23) and BIA case law  limit the immigration court and BIA to reopening cases (albeit, cryptically and indirectly) only when there will be something pending before the court or BIA.  So we are stuck in the situation of having two outcomes – a deportation order and a green card – and no way to resolve it.

The BIA in Matter of Yauri, held that because of the numerical and time limitations on motions to reopen as well as its lacking authority to delay removal based on issues outside of its jurisdiction (except with the agreement of the government, curiously), it will not reopen proceedings to give an arriving alien the opportunity to adjust status with USCIS. The Board wrote, “Accordingly, we conclude that we have not been granted authority to reopen the proceedings of respondents who are under a final administrative order of removal to pursue matters that could affect their removability if we have no jurisdiction over such matters.” However, the Board conceded that it would reopen if USCIS did adjust status, though it did not explain why it would ignore the statute and regulations to do this and under what authority it would do it.
A year before the BIA decision in Matter of Yauri, the Ninth Circuit weighed into the issue of reopening cases so an arriving alien with a removal order would have time to adjust status. In the case, Kalilu v. Mukasey, the Ninth Circuit concluded that the BIA could not rely on its “lack of jurisdiction over the underlying adjustment of status” to deny reopening. A problem with understanding Kalilu is that the nomenclature was all wrong. Mr. Kalilu was not filing a motion to reopen after a final order of removal was entered, but rather a motion to remand to the BIA, so the BIA had jurisdiction. That aside, the BIA took the position that its regulations and caselaw precluded delaying removal so an adjustment by USCIS could continue. The Ninth Circuit concluded that their regulations and case law made no sense in light of the right to adjust status with USCIS, writing:

The opportunity that the Interim Rule affords for an arriving alien in removal proceedings to establish his eligibility for adjustment based on a bona fide marriage is rendered worthless where the BIA, as it purports to do in the present case, denies a motion to reopen (or continue) that is sought in order to provide time for USCIS to adjudicate a pending application. Without a reopening or a continuance, an alien is subject to a final order of removal, despite the fact that he may have a prima facie valid I-130 and adjustment application pending before USCIS. If an alien is removed, he is no longer eligible for adjustment of status.

So like the other examples, the Ninth Circuit saw a problem between the agencies and did not get into who was right and who was wrong, but just told them that the outcome wrong and left it to them to fix it despite potentially conflicting statutes, regulations, and case law.

One final note about Matter of Yauri. The Board articulated quite adamantly that it disfavored delaying cases for relief that the Board had no jurisdiction over. It seems that events on the ground in immigration courts have led to a certain amount of ignoring the Board as cases are now continued in immigration court for all kinds of reasons outside of the Board’s (or immigration court’s) jurisdiction, like to consider requests for prosecutorial discretion (under ICE jurisdiction), pending I-130’s even without satisfying the evidentiary requirements in Matter of Hashmi  (under USCIS jurisdiction), applications for TPS  (under USCIS jurisdiction), and DACA  (under USCIS jurisdiction). Matter of Yauri seems antiquated in these kinder and gentler times. Thank heavens. Posted November 30, 2013.


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