Matter of Alfredo Diaz-Garcia

May 212012
 

In this case, the government unlawfully removed the respondent before the removal order was administratively final, i.e., while the case was on direct appeal to the Board. The regulations provide that a removal order shall not be executed during the period for filing an appeal to the Board (unless appeal is waived) or while the appeal is pending. The regulations also provide that the departure of a respondent from the U.S. while a direct appeal is pending constitutes a withdrawal of the appeal. 8 C.F.R. § 1003.4. DHS argued that even its removal of the respondent “in error” is a departure that strips the Board of jurisdiction over the appeal. The Board rejected that argument and found, “Fundamental fairness dictates that an unlawful act by the DHS should not serve to deprive us of jurisdiction to review an alien’s appeal.”

On the merits of the appeal, the Board held that a conviction for being an “accomplice” to an aggravated felony offense makes an alien removable for an aggravated felony if the conviction is for aiding and abetting the principal offender. The respondent in this case was convicted under an Arkansas statute that defined accomplice more broadly to include “a person who (1) solicits another to commit an offense, (2) aids another in the commission of the offense, or (3) fails to prevent the commission of the offense, so the Board held it was not categorically an aggravated felony. The reviewable record of conviction, however, made it clear the respondent assisted the principal at the scene of the crime. The conviction thus satisfied the modified categorical analysis.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3751.pdf.

Panagis Vartelas v. Holder

Apr 052012
 

The Supreme Court held that a permanent resident who pled guilty to a crime involving moral turpitude before the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 still benefits from the Supreme Court’s 1963 decision in Fleuti, which provides he would not be considered to be “seeking entry” after a innocent, casual, and brief trip abroad. If the resident is not seeking entry, then he is not subject to numerous additional criminal and noncriminal grounds for removal.

IIRAIRA created a new rule that returning residents are considered to be seeking admission upon return from abroad if they have committed an offense that makes them inadmissible. The Supreme Court held that rule is not retroactive because Congress did not explicitly make it retroactive and it creates a new disability (the noncitizen’s inability in this case to travel to Greece briefly to visit his ill parents without being subject to removal upon return). It is thus another application of Landgraf v. USI Film Products, 511 U. S. 244, 263 (1994).

Notably, the Supreme Court held that explicit reliance on prior law by the individual is not required to avoid retroactive application. The majority of the Court also rejected the dissent’s argument that the noncitizen’s own travel after IIRAIRA is what triggered his removal proceedings and he could have avoided those problems by not traveling.

Vartelas is not a big change for those of us in the Ninth Circuit or Fourth Circuit, since they already had found that the new definition of when a permanent resident would be seeking admission was not retroactive for noncitizens who pled guilty before IIRAIRA. Camins v. Gonzales, 500 F. 3d 872 (CA9 2007); Olatunji v. Ashcroft, 387 F. 3d 383 (CA4 2004).

Read the decision at http://www.supremecourt.gov/opinions/11pdf/10-1211.pdf.

Matter of J.R. Velasquez

Jan 242012
 

The Board held that mere submission of a conviction document by DHS is not enough to establish its admissibility, at least where the respondent denies the alleged conviction. The government must provide some form of authentication, and it must be sufficiently reliable to comport with due process. The Board held that 8 C.F.R. § 1003.41(a), (b), and (c) establish safe harbors for conviction documents that are originals, certified copies, and electronic records certified in writing by both the state repository and DHS, but it also held that those were not the only admissible conviction documents.

In this case, DHS submitted an electronic conviction record that was not certified by either the court that generated it or by the DHS officer who received it. Nor was there any attempt to authenticate it in any other way. The Board therefore found that the document was not admissible and remanded for further factfinding.

Read the decision at http://www.justice.gov/eoir/vll/intdec/vol25/3739.pdf.

Matter of Benno Rivens

Oct 192011
 

Definitively answering a long-standing question, the Board held the government bears the burden of proving that a permanent resident returning to the U.S. after travel abroad should be treated as an “applicant for admission.” Permanent residents generally are not considered applicants for admission unless one of the exceptions at INA 101(a)(13)(C) applies. If an exception applies, then the permanent resident is subject to additional stricter grounds for removal than would otherwise apply. For example, a single conviction for a crime involving moral turpitude might not make a permanent resident removable unless he is considered an applicant for admission.

The allocation of the burden of proof can be determinative because whether a crime involves moral turpitude often is not clear from the record of conviction. If the noncitizen bore the burden of proof, an inconclusive record of conviction might make him removable. By placing the burden on the government, of clear and convincing evidence no less, Rivens protects permanent residents from loss of their status and removal based on inconclusive evidence.

In a second holding, the Board found that the crime of being an accessory after the fact, 18 U.S.C. § 3, is a crime involving moral turpitude only if the underlying offense involved moral turpitude. The Board found that helping someone after he commits a crime is turpitudinous (base, vile, or depraved) if the crime committed was turpitudinous. This contrasts with the Ninth Circuit’s decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), overruled on other grounds by United States v. Aguila-Montes de Oca, No. 05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), although the Board suggested otherwise.

The Board’s holding does not stand to reason, though, since an accessory after the fact does not participate in the underlying crime. Rather, being an accessory after the fact is a completely separate crime that should not depend on the nature of the underlying offense.

For example, being an accessory after the fact would include giving your son $100 when you know he is on the run from the police. Does giving your son the money become more or less turpitudinous depending on whether the police are after him for grand theft (a crime of moral turpitude) or possessing an unregistered firearm (not a crime of moral turpitude)? No, in either case the mother is not helping her son commit the crime; she is helping him to avoid standing trial for it. This is a crime and bad parenting, but not vile or depraved.

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3731.pdf

Vartelas v. Holder

Oct 032011
 

The Supreme Court has agreed to address whether IIRAIRA’s definition of when a lawful permanent resident is seeking “admission” should be applied to an LPR returning after a brief, innocent, and casual trip abroad who pled guilty to a crime of moral turpitude prior to IIRAIRA.  Vartelas is a Second Circuit case that conflicts with decisions from the Ninth and Fourth Circuits. See Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004).

View the docket at http://www.supremecourt.gov/qp/10-01211qp.pdf

Juan Carlos Tapia Luna v. Holder

Sep 202011
 

The Ninth Circuit held that the deadline for special motions to reopen proceedings to apply for 212(c) relief under St. Cyr was a constitutionally sound procedural rule.

Luna filed late and had argued that the deadline “irrationally disallows any alien not made aware of the time limitation from seeking a reopening.” The Ninth Circuit noted, though, that the rule was published in the Federal Register and that persons are presumed to know the law.

Further, the Ninth Circuit rejected Luna’s argument for tolling of the deadline because the record did not show due diligence. It left open the possibility of tolling under other circumstances, though.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/09/19/08-71086.pdf.

Vijendra Kumar Singh v. Holder

Apr 022011
 

In this opinion, the Ninth Circuit provided more details about the bond hearing required under Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).  Casas-Castrillon provided for a bond hearing before an immigration judge for detained aliens while they petition for review of an administratively final order of removal.

Singh held DHS has the burden of proving by clear and convincing evidence that the alien is a flight risk or a danger to the community.  Casas-Castrillon had held DHS had the burden of justifying continued detention, but did not state the showing required.  Clear and convincing is a heightened standard appropriate to the interests at stake when a person is detained in civil proceedings for several years.

Singh also held that the agency must provide contemporaneous record of the bond proceedings, such as a audio recording.  Immigration judges typically do not record bond proceedings and instead just prepare a memorandum if the alien chooses to appeal.  The current practice severely impedes judicial review of errors or due process violations.  The court’s decision recognizes this, while not imposing the additional burden of requiring a transcription of the proceedings.

Singh also noted that the mere existence of a criminal record is not enough to deny bond.  Instead, the alien must constitute a present danger to the community.  So, the adjudicator must consider the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/31/1015715.pdf

Diouf v. Napolitano (“Diouf II”)

Mar 082011
 

In Diouf II, the U.S. Court of Appeals for the Ninth Circuit held that prolonged detention under 8 U.S.C. 1231(a)(6) raises serious constitutional concerns, which require additional procedural safeguards beyond those provided under the regulations. Section 1231(a)(6) authorizes detention of an alien subject to a removal order if the government is not able to physically remove the alien within the initial 90 days after the order becomes final.

Under the regulations, ICE officers periodically determine whether aliens subject to final removal orders should remain in detention or be released on bond or other conditions. Detention under this regime may continue for years.  ICE follows these procedures because the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001) that the government could not indefinitely detain aliens subject to final removal orders, at least where removal is not reasonably foreseeable.

Diouf II, however, holds that the procedures adopted by ICE are not sufficient where the detention significantly exceeds six months.  It holds that an alien subject to final removal order must receive a bond hearing before a neutral immigration judge where removal is not imminent and the alien has been detained for six months. Further, it holds that the alien should receive bond unless ICE establishes to the satisfaction of the immigration judge that the alien is a flight risk or poses a danger to the community.

These are the same safeguards that the Ninth Circuit found necessary for aliens subject to prolonged detention under 8 U.S.C. 1226(a) (detention during direct challenge to a removal order).  See Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/09-56774.pdf.

Matter of Alla Adel Alyazji

Feb 082011
 
For removability under 237(a)(2)(A)(i), a crime of moral turpitude must occur within 5 years after “the date of admission.”  In Alyazji, the Board (re)defined “the date of admission,” abrogating Matter of Shanu in part.
The date of admission for this purpose is now the date of the admission by virtue which the person was present in the United States at the time of committing the crime of moral turpitude.  A few different scenarios illustrate the application:
  • A person who entered the U.S. without inspection would never be subject to this ground of deportability because he has not been admitted.
  • For a person who last entered the U.S. without inspection and then adjusts to permanent resident status (perhaps under 245(i)), the date of admission is the date of adjustment.  This is the case even if the person had a prior inspection and admission (perhaps on a tourist visa as a child), but then departed.
  • For a person who last entered the U.S. on a visa and then overstays or violates the terms of the admission before adjusting status to lawful permanent residence, the date of arrival on the visa is still the date of admission.
  • After obtaining lawful permanent resident status, a noncitizen does not obtain a new date of admission unless one of the exceptions at INA 101(a)(13)(C) applies (seeking return to the U.S. after abandonment of residence, absence of more than 180 days, removal, illegal activity abroad, commission of a crime identified in INA 212(a)(2) absent a waiver, etc.).

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3703.pdf

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