Recent Ninth Circuit decision could be of monumental significance.

Sunday, September 28th, 2014
By: Jonathan MontagJ.D.

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 That status was revoked in 2006, however, as a result of a 2001 conviction for sexual battery in violation of California Penal Code § 243.4(a).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.


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