Wednesday, January 29, 2014

Reason to Believe: The All-Encompassing Drug-Related Ground for Removability

Yesterday, the President delivered his annual State of the Union address to a joint session of the U.S. Congress, to the American People, and to the world. As anticipated and as shown below, he referenced Comprehensive Immigration Reform ("CIR"):

NBC's Recording of State of the Union Address, January 28, 2014
Some may be disappointed by such a short and superficial discussion of what they believe to be an extremely important issue, but others may see the political importance of the President's attempt not to interfere with internal discussions within the Republican Party, which as shown below by the comments of Senator Rand Paul, may be willing to have CIR pass this year:

NBC's Meet the Press, January 26, 2014

Both videos and the apparent seriousness of the speakers within them give reason to believe that CIR will be passed this year, or at least has a better chance of passing this year than it did last year.

However, until then, a different "reason to believe" will continue to play a larger role in United States Immigration Law. I'm not talking about the "reason to believe" basis that has plagued the provisional-unlawful-presence-waiver-application adjudications for the past several months, an issue that the United States Department of Homeland Security ("DHS") appears to have corrected at the end of last week by no longer automatically denying those applications for convictions that do not render one inadmissible. Instead, I'm talking about the "reason to believe" ground for inadmissibility regarding drug traffickers.

Typically, in removal proceedings before any of the various United States Immigration Courts nationwide, the United States Department of Homeland Security ("DHS") would need to prove that a foreign national has been convicted of or at least has admitted to the elements of a controlled-substances offense, or drug crime, to establish that foreign national's removability. Many foreign nationals believe that simply by DHS's not having such proof requires that the immigration judge rule that DHS has not met its burden of proof, but DHS has an escape clause: reason to believe.

Under the reason-to-believe ground for inadmissibility, DHS does not need to prove that a conviction exists or even that the foreign national admitted to the elements of a drug crime, but rather may simply prove that there are grounds to conclude that the foreign national is involved in dealing drugs. The decision earlier this week by the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review from the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western states including California, Nevada, Arizona, and Washington, exemplifies this all-encompassing escape clause. In Chavez-Reyes v. Holder, the Ninth Circuit ruled that a man, whose drug-trafficking guilty plea and consequent federal conviction were actually overturned on appeal in his criminal case because of the unreasonableness of the traffic stop by the police officers who discovered the drugs within his car, was still properly found by the BIA to be inadmissible to the U.S. solely based on the reason to believe he is a drug trafficker.

The Ninth Circuit supported its position by finding that the overturning of the man's conviction on appeal in his criminal case, while resulting in the man's not having the conviction at all, had nothing to do with the voluntariness of his initial guilty plea, meaning that he indeed still admitted to being a drug trafficker in federal court even if he ultimately was not convicted of such an offense. Additionally, the Ninth Circuit found that the BIA did not rely on the man's guilty plea alone in making its determination but also referenced the other relevant facts, including the 900 pounds of cocaine found in his car.

The decision gives reason to believe the Ninth Circuit is starting to become tougher on only serious criminal offenders. For example, in Aguilar-Turcios v. Holder, the Ninth Circuit held last week that a Honduran man's conviction under the Uniform Military Code of Justice for using a government computer to view pornography does not constitute an Aggravated Felony and therefore does not fall within the category of crimes that the U.S. Congress found to be of the most egregious to the extent that they bar almost all forms of immigration-related relief. The impact of the Aguilar-Turcios decision is easily trumped by the absurdity of the case, but absent the passage of CIR there is reason to believe that the Ninth Circuit will find ways to save foreign nationals convicted of non-violent, non-weapons, non-drug, and non-child-sex crimes at least from deportation, if not from embarrassment.

Wednesday, January 22, 2014

Another Court Expands Access to Crime-Related Waiver for Certain Green-Card Holders

The U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"), the federal appeals court that reviews the decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings held in Western states including California, Nevada, Arizona, and Washington, explicitly added itself yesterday to the list of five other circuits that have found that adjustment of status, i.e., applying for and acquiring a Green Card here in the U.S. as opposed to obtaining one via application to a consular post abroad, does not necessarily amount to an "admission" for purposes of eligibility for a waiver of crime-based grounds for inadmissibility. The decision, Negrete-Ramirez, may not have even been the most news-worthy decision of the day by the Ninth Circuit, which also separately ruled on the same date that jurors in federal-court trials could not be dismissed simply for being homosexual.

Nevertheless, the decision certainly has a tremendous impact on thousands if not tens of thousands of Green-Card holders who find themselves removable from the U.S. because of certain criminal convictions but who had been previously admitted to the U.S. in some other status prior to adjusting to the status of a Green-Card holder. As a way of background, the waiver at issue falls under Section 212(h) of the Immigration & Nationality Act, wherein a foreign national can have waived the immigration consequences of one or more certain criminal convictions if s/he can prove various requirements. The waiver can even be used to waive almost all Aggravated Felonies, which are specifically defined categories of convictions that the Immigration & Nationality Act deems to be of the most egregious of criminal acts. If the waiver is granted, then the foreign national may receive a Green Card or otherwise keep the Green Card s/he already has.

However, for several years, the BIA has strictly interpreted the eligibility exception relating to foreign nationals who already have Green Cards. That exception pertains to Green-Card holders who, like the woman at issue in Negrete-Ramirez, have been convicted of at least one Aggravated Felony since receiving his/her Green Card or who have not lawfully resided continuously in the U.S. for at least seven years before being placed in removal proceedings. Therefore, many Green-Card holders are not even eligible to receive the waiver because they have already been once granted a Green Card. While some may initially think that such an exception is unconstitutional because it treats non-Green-Card holders including undocumented individuals who are not affected by it better than Green-Card holders, such equal-protection-based challenges have failed because federal courts have determined that the U.S. Congress had not acted unreasonably in limiting access to the waiver to those foreign nationals who have not already been granted the privilege of Green-Card-holder status and who have not therefore betrayed that privilege so soon after receiving such status by committing serious crimes.

The Ninth Circuit's decision does not decide differently and does not even address the issue of equal protection but instead, as with the other circuits that have ruled the same way, simply follows the plain reading of Section 212(h). That plain reading led the Ninth Circuit to interpret the exception to apply only to foreign nationals who did not have an "admission," such as on a tourist or other nonimmigrant visa, prior to their being granted Green-Card-holder status. Specifically, even if one has already been granted a Green Card and assuming the other requirements are met, s/he can still pursue a waiver under Section 212(h) if such previous grant of a Green Card both:

(A) was through adjustment of status, as opposed to consular processing, AND
(B) was preceded by an admission to the U.S. in some nonimmigrant or other non-Green-Card-holding status.

Specifically left out of this decision are those foreign nationals whose first admission to the U.S. was on an immigrant visa and those foreign nationals who entered the U.S. without having been admitted and then later nevertheless obtained a Green Card through, for example, an amnesty program. Because of the complexity of the requirements, foreign nationals who feel they may be affected by this decision, even if they have already been ordered removed for previously having been found ineligible for a Section-212(h) waiver, should seek skilled immigration-related legal counsel immediately.

Sunday, January 12, 2014

No Avenue for Court-Issued Relief for Those Subjected to Expedited Removal

Expeditious removal is applied to certain perceived foreign nationals who are seeking admission to the U.S. at a port of entry, e.g., a border-crossing point or international airport, and who have been determined by U.S. Customs and Border Protection ("CBP"), a component of the U.S. Department of Homeland Security ("DHS"), either to have made a willful misrepresentation to obtain a visa or an admission to the U.S. or to be an immigrant not in possession of requisite documentation. Unlike orders made in regular removal proceedings by an immigration judge, expedited-removal orders are made without a hearing and result in the deportation of the foreign national at issue without the right of an appeal. Oftentimes, the expedited-removal process includes long periods of detention by CBP until a final decision is made, leading many simply to accept the deportation, so as to be released from detention sooner, rather than trying to find a way to avoid it, something that may require much longer detention before actually being achieved. While in the custody of CBP, a foreign national in the process of being expeditiously removed almost never has access to a lawyer. Once expeditiously removed, the relevant foreign national is subject to at the very least a five-year bar to admission to the U.S.

Because the expedited-removal process is conducted solely by CBP without the oversight of a court, whether administrative or judicial, one can see the possibility for abuse by CBP. In fact, recently the U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"), the federal appeals court that reviews the decisions by various federal trial courts in the Western states including California, Nevada, Arizona, and Washington, heard the case of a Canadian man who timely filed a petition for a writ of habeas corpus challenging CBP's expeditious removal of him based on the allegation that he was seeking to the enter the U.S. to work without proper permission.

Rather than considering the Canadian-national man's claim on the merits, the Ninth Circuit in Smith v. U.S. CBP agreed with the government that there was no jurisdiction to consider the relief sought because the man was not in custody at the time he filed his petition for a writ of habeas corpus with the relevant federal trial court. As a general rule, one must be in some type of custody by the government to be eligible for habeas-corpus relief. While it is true that the man was not in the physical custody of CBP following his expeditious removal, the Ninth Circuit could have found that his inability to obtain admission to the U.S. as a result of the five-year bar stemming from such expeditious removal amounts to a form of custody, in much the same way a parolee is still in custody despite being released from prison. However, the Ninth Circuit opted instead to find it was without the authority to review the man's claim and went a little farther in finding that it was without the authority even to refer the man's claim to an immigration court for review.

There is an adage shared frequently among attorneys that, "Bad facts lead to bad law." That the man lied to CBP, something to which he conceded, leads one to conclude that CBP did not necessarily overstep its bounds in his particular case. Had there been genuine abuse by CBP, then maybe the outcome would have been different, even though such an issue in and of itself should be found to be irrelevant to whether or not the Ninth Circuit has jurisdiction in the first place to hear the claim, because federal courts whether correctly or incorrectly sometimes interpret their authority more broadly when there are facts showing actual abuse by the government. Nevertheless, when a case of genuine abuse does arise in the future, this latest decision by the Ninth Circuit makes it all the more difficult for the affected foreign national to obtain justice. Foreign nationals concerned about whether they will have difficulty obtaining admission to the U.S. at a port of entry should consult with an expert immigration attorney before deciding what action to take.

Sunday, January 5, 2014

Choosing Which Maze to Resolve: Comprehensive Immigration Reform, Current Immigration Law, Congress, and the Courts

Happy New Year! As the legislative session begins for the beginning of 2014, there has already been a great deal of discussion about Comprehensive Immigration Reform ("CIR") and the possibility that it may be passed this year. CIR is meant to resolve the maze in which current immigration law appears to leave the country, but obtaining the passage of CIR is a maze in itself. Although Republican John Boehner, the U.S. Congress's Speaker of the House of Representatives, has made clear his intention of moving forward with attempting to have CIR passed, whether CIR becomes a reality depends largely on internal Republican politics, as summarized below by Atlantic Media's Ronald Brownstein on NBC Los Angeles's News Conference:  
NBC Los Angeles's News Conference, January 5, 2014

As can be seen above, there is still a great deal of uncertainty as to whether CIR will actually move forward. Therefore, foreign nationals seeking resolution of their immigration matters continue to be limited to what current law allows. On New Year's Eve, the U.S. Court of Appeals for Ninth Circuit ("Ninth Circuit"), the federal appeals court that hears petitions for review of decisions by the Board of Immigration Appeals ("BIA") regarding immigration-court proceedings within certain Western states including California, Nevada, Arizona, and Washington, held in Li v. Holder that a single material and conscious falsehood in one part of an asylum applicant's testimony makes uncredible all of that applicant's testimony, thereby warranting an adverse-credibility finding that effectively renders an asylum application unapprovable.

The case concerns a Chinese-national woman who is of both Chinese and Korean descent and who sought but was denied asylum in the United States by both an Immigration Judge and later the BIA because of allegedly inconsistent testimony regarding only two parts of her overall asylum application, i.e., when she applied for and received her Chinese passport and for how long she participated in a Christian church, her following of which she claimed led in part to her being persecuted in China. Despite both the woman's and a dissenting judge's arguments to the contrary, the Ninth Circuit said the BIA was not wrong in using an adverse-credibility finding on one claim to support an adverse-credibility finding on another claim.

On the bright side, the same Ninth Circuit held a week earlier in Euceda Hernandez v. Holder that the BIA cannot reject on jurisdictional grounds a motion to reopen (or to reconsider) submitted to the BIA when such motion should have been filed with the relevant immigration court. A jurisdictional ground for dismissing a filing is based on a conclusion that the U.S. Congress did not give the authority to the rejecting body, in this case the BIA, to consider such filing. As with most if not all adjudicating bodies, the BIA has the authority to determine based on the laws passed by the U.S. Congress of the parameters of its jurisdiction, but the federal courts have the authority to decide whether such determination is correct.

In overturning the BIA's determination, the Ninth Circuit found that the BIA's erroneous rejection of a Honduran-national man's motion was based on the BIA's place-of-filing rule, which is only a claims-processing limitation as opposed to a legitimate jurisdictional limitation, meaning that the BIA could consider the merits of such a motion if it wished to do so rather than simply rejecting such motion under the guise that it is without authority from the U.S. Congress to give the motion any consideration.

The decision is unsurprising given the confusion in which current immigration law leaves many people regarding several issues including something that should be so simple as where to file a motion. As a result, the immigration-law maze continues into the New Year at least until, as Ronald Brownstein discusses in the above video, the Republicans can resolve their own internal maze in favor of passing CIR.