Tuesday, March 18, 2014

Cutting to the Heart of the Matter: Determinations in Removal Proceedings

Many people in the U.S. are tired of the debate on Comprehensive Immigration Reform ("CIR") and simply want to have some finality on whether or not it is going to pass. Unfortunately, such a determination despite the efforts by some including Dan Pfeiffer, Assistant to the President, appears to be far from becoming final, and instead more discretion in how the law is enforced, rather than a change in the law itself, appears to be the proposed interim solution:

NBC's Meet the Press, March 16, 2014

Nevertheless, in spite of the continued refusal of the U.S. Congress, particularly the U.S. House of Representatives, to have a final vote on CIR, the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court that hears petitions for review from decisions by the Board of Immigration Appeals ("BIA") regarding removal proceedings conducted within the Western States, issued four decisions that may be best summarized as cutting to the heart of the matter.

Three of the four published decisions pertained to whether a person's conviction rendered him/her removable or otherwise ineligible for relief from removal. For instance, in Coronado v. Holder, the court first determined that a Mexican man's state conviction for possession of methamphetamine was not categorically a controlled-substances offense as defined by the Immigration and Nationality Act ("INA"), meaning there was at least some activity for which one could be convicted under the state criminal law that would nevertheless not affect the convicted person's immigration status. Next, the court determined that because the state law was divisible, i.e., it references different drugs in the alternative rather than in the aggregate to establish its basis, the modified categorical approach could be pursued, meaning that the actual details of the alleged offense could be reviewed. After conducting the modified-categorical analysis, the court concluded the man had been convicted of a controlled-substances offense as defined by the INA.

Similarly, in Turijan v. Holder, the court ruled that a Mexican man's state conviction for false imprisonment, which was specifically charged as a felony effected by violence, menace, fraud, or deceit, was not categorically a crime involving moral turpitude ("CIMT"). However, in a footnote, the court noted that because the record did not contain any further details regarding the conviction, the modified-categoral could not be used to determine whether the conviction amounted to a CIMT.

Moreover, in Perez-Palafox v. Holder, the court ruled that the BIA did not engage in impermissible factfinding that led to the conclusion that a Mexican man's state conviction for transportation of methamphetamine constituted a particularly serious crime that rendered him ineligible to maintain his prior grant of withholding of removal.

The Ninth Circuit also discussed this past week the issue of credibility. In Huang v. Holder, the court sided with the relevant immigration judge's conclusion that a Chinese woman's demeanor while testifying, in part, conveyed that she was not being in honest regarding her asylum application.

All four cases show a concerted effort by the Ninth Circuit to clarify as much as possible what is permissible and what is not permissible during removal proceedings, something that CIR should accomplish if passed, but there still continues to be anything but clarity regarding whether such passage will occur.

Sunday, March 9, 2014

Courts are Plugging Several Holes in the Immigration Dam: Child Abduction, SIJS, CAT, & Reinstatement

In the absence of any action on Comprehensive Immigration Reform ("CIR") by the U.S. Congress, this past week saw a great deal of activity by the courts regarding immigration-related matters in an attempt to clarify often confusing rules. For instance, the U.S. Supreme Court held that there is no exception to the one-year filing deadline for a petition filed under the Hague Convention on the Civil Aspects of International Child Abduction to return a child to the U.S. following the child's removal out of the country by one of his/her parents. In Lozano v. Montoya Alvarez, all of the Justices found that the crucial deadline, by which the filing of a relevant petition would mandate the return of the child to the U.S. but after which such return may not be ordered if the child is now settled in his/her new environment, simply could not be postponed or "equitably tolled" because, to summarize as briefly as possible, such tolling does not apply to treaties.

The California Court of Appeal's Fourth Appellate District also addressed immigration-related matters concerning children, in particular a specific avenue for minors to obtain Lawful Permanent Residence ("a Green Card") known as Special Immigrant Juvenile Status ("SIJS"). In Leslie H. v. Superior Court (People), the court found that a California Superior Court Judge is without authority to deny a minor an order allowing him/her to apply for SIJS despite that judge's making the required factual findings, namely that the child (1) is either a dependent of the court or is legally placed with a state agency, a private agency, or a private person; (2) is not best served by being returned either to his/her home country or country in which s/he last resided; and (3) cannot be reunited with his/her parent(s).

Finally, the U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit"), which is the federal appeals court that hears petitions for review regarding removal proceedings conducted within the Western States, held in Go v. Holder that motions to reopen regarding claims under the Convention Against Torture, another treaty, are subject to the normal time- and number-related limitations that apply to all other motions to reopen.  On the same day, the Ninth Circuit also held in Montoya v. Holder that the U.S. Department of Homeland Security ("DHS") is permitted to reinstate a previously executed removal order against someone who reentered the U.S. after such removal even if that person had an ultimately approved immigrant petition filed for him/her before the change in the law relating to reinstatement because such a petition failed to create any type of right to any immigration-related relief.

Sunday, March 2, 2014

Unnecessary Drama: Providing a Legally Sufficient Affidavit of Support

Many Americans were tuned in today to see what various celebrities were wearing to the Academy Awards and who would take home the Oscars. However, there appears to be more drama in the rest of the world than even Hollywood could conjure. For example, internationally there continues to be worrying news about the deteriorating situation in eastern Ukraine and the territorial ambitions of the Russian Federation, which shocked many with its military incursion into Crimea. Domestically, we are seeing even more evidence that conservative lawmakers are under pressure not to move forward with Comprehensive Immigration Reform ("CIR") as shown by the publicized negative reaction to Republican U.S. Senator Marco Rubio, whose work on the issue many believed was refreshing:

NBC's Meet the Press, March 2, 2014

Last Wednesday alone saw several other out-of-character portrayals: the veto by Republican Arizona Governor Jan Brewer, who is no stranger to the CIR debate, of a bill that would permit businesses to refuse services to gay and lesbian individuals on the basis of religious belief; the release by U.S. Customs and Border Protection ("CBP"), a sub-agency of the U.S. Department of Homeland Security ("DHS"), of a negative report regarding tactics used by its U.S. Border Patrol to engage with potential and actual unlawful border crossings; and the onset of torrential storms in Southern California.

Not to be outdone by the drama exhibited by, among other things, Los Angeles commuters attempting to drive in the rain, the United States 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, provided what some would perceive as an award-winning critique of a decision by the BIA. That critique came in the form of Tadevosyan v. Holder, a case concerning an Armenian-citizen man who following the dismissal by the BIA of his administrative appeal filed a timely motion to reopen based on his marriage to a U.S. citizen who had pending for him an immediate-relative family-based immigrant petition. Although the man attached to his motion evidence that that petition was pending, his Green-Card application to be heard prospectively by the relevant U.S. Immigration Court, and an affidavit of support including income-related documents by a joint sponsor, DHS opposed the motion on the basis that the petition had not yet been approved and on the perceived insufficiency of the affidavit of support. Instead of following what many believe would be a reasonable course of action and granting the man's timely motion to reopen, the BIA opted to side with DHS and to deny the motion on the very same bases cited by DHS, thereby extending the drama of the man's immigration case.

The Ninth Circuit sought to put an end to the man's immigration-related drama by stating in its own form of dramatic fashion, "As we read the BIA's decision here, it is one of those in which the BIA improperly accorded controlling weight to the fact that DHS opposed the motion, without regard to whether the basis of that opposition was correct. The BIA recounted, in one sentence, the substance of the DHS's opposition. It did not analyze at all whether DHS's position ... held water." After subsequently engaging in the appropriate analysis and deciding that the pending nature of the relevant petition and the documents in support of the affidavit of support were adequate to warrant reopening of the man's removal proceedings, the Ninth Circuit concluded by stating, "[T]he failure to provide any reasoned explanation confirms that the [BIA] denied the motion because DHS objected, not because it considered DHS's objection on the merits and agreed with its reasoning."

Aside from the dramatic language used, the opinion's extensive analysis of what is required for a legally sufficient affidavit of support is what makes the decision noteworthy. Using that analysis to one's benefit by ensuring an affidavit of support is legally sufficient may require skilled immigration-related legal advice, which can be used to ensure an unsurprising and consequently undramatic resolution to one's immigration matter.