Archive for March 2010

Round Up on Silva Trevino

03/30/2010, 12:00 am

– guest blogging by Jenny Pelaez, Immigration Justice Clinic, Benjamin N Cardozo School of Law

We were on notice, following the BIA decisions in Gerstenshteyn and Babaisakov, that the Board was mission driven to erode the “categorical approach” as it applied to aggravated felony determinations. Who would have anticipated the sweeping new rule for moral turpitude determinations announced by former Attorney General Mukasey in Matter of Silva Trevino? We suppose we haven’t grown cynical enough and we state we were more than a bit surprised with the scope and breadth of the decision. With this left-field decision, the AG took away the one sure thing attorneys and judges have always been able to rely on when analyzing the immigration consequences of a crime: that we apply a categorical approach to determine whether the statute of conviction necessarily requires conduct that falls within the moral turpitude removal grounds. Indeed, the approach originated in ancient CIMT cases like US ex rel. Mylius v. Uhl, 210 F. 860 (2d Cir. 1914), decades before the modern Taylor-Shepard framework was born.

The system may not have been perfect, but over a century of case law had established its parameters and the sounds policies behind its use. Apparently struck with reformist zeal in his final days in office, Mukasey swept all of this aside and created a radical new three-step framework. Most significantly, at his new “step three,” the Attorney General directs IJs to consider any and all evidence “necessary and appropriate” to decide the moral turpitude question, eviscerating the core of the categorical approach. The Attorney General also distorts the initial categorical inquiry (“step one”) by defining the scope of criminal statutes not by reference to their text and elements but rather by reference solely to published case law that, as any practitioner knows, represent only the smallest fraction of actual prosecutions. Further, the Attorney General potentially purported to lay out a new definition for moral turpitude. While these rather esoteric and technical changes weren’t exactly making headlines in November ’08, it is hard to overstate the impact this decision could have on countless immigrants.

Immigrant advocates, although caught completely unawares–the AG had never told Mr. Silva-Trevino, let alone the broader legal community, why the case was certified–reacted swiftly. Several organizations submitted an amicus brief to the AG urging reconsideration of his decision because of the defective process behind the certification, its inconsistency with a century of uniform precedent, and the negative practical consequences Silva-Trevino will have on the functioning of immigration and criminal systems. Meanwhile, crim-imm gurus Norton Tooby and Dan Kesselbrenner issued a practice advisory to assist practitioners in navigating the newly-treacherous post-Silva-Trevino landscape.

The immigration bar hasn’t been alone in decrying Mukasey’s shoddy parting shot. The ABA affirmed the importance of the categorical approach and rejected the Silva-Trevino framework. In a 2009 report, the ABA praised the categorical approach as a tool that “promotes uniform treatment of convictions, fairness, and due process.” The ABA subsequently urged Attorney General Holder to withdraw Silva-Trevino, declaring that its “novel fact-based inquiry . . . offends due process, creates inefficiency, and undermines the uniform and predictable administration of justice in the immigration system.” The ABA reiterated these findings in a 2010 report, where it again recommended the withdrawal Silva-Trevino and a return to the categorical approach.

However, how the decision’s novel experiments for CIMT determinations will shake out in the circuits is still largely unknown. This is cause for hope, concern, and action.

As of this posting, no federal court has yet approved of or applied Silva-Trevino’s unprecedented moral turpitude framework. The Third Circuit, the only circuit court thus far to squarely address Silva-Trevino on the merits, emphatically rejected Mukasey’s interpretation as manifestly contrary to the text of the INA and affirmed the historically applied categorical approach in Jean-Louis v. Attorney General of U.S. The court refused to accord Chevron deference to the Attorney General’s decision, finding it patently unreasonable. While this was certainly a heartening decision that placed a lovely red flag on Silva-Trevino on Westlaw, there are still many more fights to come. The government has moved for a rehearing in Jean-Louis itself, thus threatening the important victory there.

From our recent survey of the rest of the field, it seems a number of circuits are continuing to apply the traditional framework rather than look beyond the record of conviction as instructed in the “third step” of the Silva-Trevino analysis. In Mustafaj v. Holder, the Second Circuit reaffirmed that it applies the categorical and modified categorical analyses for CIMT determinations. The case cites Silva-Trevino only with regard to the definition of moral turpitude. Similarly, in a somewhat confused passage, the Sixth Circuit in Kellermann v. Holder cited Silva-Trevino but opined that under the modified categorical approach, “the court conducts a limited examination of documents in the record to determine whether the particular offense for which the alien was convicted constitutes a CIMT”—i.e., the familiar modified categorical inquiry. In Marmolejo-Campos v. Holder, the Ninth Circuit expressly noted the tension between Silva-Trevino’s instruction to look beyond the record of conviction and its own prior circuit precedent requiring a more cabined inquiry. However, the court chose to reserve judgment on the conflict and continued to apply the traditional approach in the circuit. More recently, the Ninth Circuit also declined to expand the modified categorical inquiry beyond the record of conviction in Nunez v. Holder. All of this could signal an implicit disapproval of Silva-Trevino or a general preference for circuit precedent—or courts could be waiting for cases that more squarely present the deference issue before deciding where to come down.

While courts have been hesitant to adopt Silva-Trevino’s radical “step three” — holding that they should look to evidence beyond the record of conviction in making moral turpitude determinations — a number of courts have more readily applied Silva Trevino’s problematic “step one” approach — relying on published case law rather than statutory text to define the reach of a statute. In Destin v. U.S. Att’y Gen, the Eleventh Circuit called the Silva-Trevino “step one” approach “controlling.” However, the Ninth Circuit’s decision in United States v. Grisel suggests that the court is not applying Mukasey’s idiosyncratic “show me a case” analysis. There, the Ninth Circuit made clear that no reference to a particular case is necessary to establish a realistic probability where it is plain from the statutory text that an offense reaches non-turpitudinous conduct.

Another open question is how the circuits will apply the definition of moral turpitude articulated in Silva-Trevino, which requires “both reprehensible conduct and some degree of scienter, whether specific intent, deliberateness, willfulness, or recklessness.” Thus far, the Second (Mustafaj v. Holder), Sixth (Serrato-Soto v. Holder), and Ninth Circuits (Marmolejo-Campos v. Holder) have read Silva-Trevino as requiring scienter as an essential element of a CIMT—though this was generally understood as a requirement prior to Silva-Trevino as well. Whether Silva-Trevino will be understood to change the traditional requirement that reckless crimes include some aggravating dimension to be CIMTs remains to be seen.

The Ninth Circuit seems poised to consider the validity of the Silva-Trevino analysis. Oral argument is scheduled in mid-April for Castruita-Gomez v. Holder, 06-74582, which may present the issue. The court has asked parties to be prepared to discuss whether Silva-Trevino should have retroactive effect. In addition, several amici have submitted a brief in the Ninth Circuit in support of Petitioner in Zamudio-Ramirez v. Holder, No. 09-71083, a case which has clearly opened the can of worms that is Silva-Trevino’s step three. That brief, along with the resources listed throughout the above, should serve as great resource to advocates litigating Silva-Trevino issues.

The first step in containing the damage Silva-Trevino is causing is to find those cases where other courts will rule on whether or not to defer to the decision. No doubt OIL is using its resources to track these issues in the circuits, and immigrant advocates need to coordinate to do the same. Readers with a pending petition for review or who have experienced particularly problematic application of Silva-Trevino by the immigration courts, please contact the Immigration Justice Clinic at Cardozo Law School at menschel@yu.edu.

Category: Criminal  |  Comments Off

BIA Round Up: Looking Ahead, Cases to Watch

03/25/2010, 7:01 pm

We here at Immigration Slip Opinion have been keeping on eye on the BIA. We’ve posted about some recent significant BIA decisions. In this post, we concentrate on issues presently before the BIA that could be resolved by precedent decisions. It’s the Ghost of Immigration Past and the Ghost of Immigration Future.

The BIA has been very busy of late. In addition to an increase in precedent decisions (7 already in 2010; 34 in 2009), it is hearing oral arguments in more cases now than in the past. Recently, it also requested supplemental briefing on specific issues in a number of cases, providing insight into some of its concerns. In one case, it even sought participation of amicus curiae – a request that AILA fulfilled. Here is a summary of what’s brewing at the BIA:

“Aging out” issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21. In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent. After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday. In numerous cases, children enter with only a few days to spare before turning 21. Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable. The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment. A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong. We have asked the BIA to schedule oral argument on this issue and to decide these cases together.

On a related “aging-out” issue, the BIA asked the parties in a CSPA case to submit supplemental briefs on the meaning of the requirement that a child have “sought to acquire” LPR status within one year of visa availability. Both DHS and DOS interpret this requirement narrowly as being limited to filing an application for an immigrant visa or adjustment of status. As explained in an amicus brief that the Immigration Council filed with the BIA, this interpretation conflicts with at least two unpublished BIA decisions, both of which concluded – quite sensibly – that because Congress did not use the word “filed” it could not have meant to limit this phrase to the act of “filing.”

Asylum-related concerns

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases. Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief demonstrates that this standard does apply to withholding cases. At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard. Unfortunately, AILA is not alone as amicus. The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief.

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici. There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases. At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits. For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Matter of Shanu and the meaning of “admission”

In a case that ultimately was dismissed on other grounds, the BIA requested briefing and set oral argument on whether Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), remains viable since it now has been rejected by four courts of appeals. Another case raising Shanu remains pending before the BIA, however, and the Board recently indicated to the Immigration Counsel, amicus in the case, that it would ask for additional briefing and set oral argument in that case instead. Shanu holds that the term “admission” in INA § 237(a)(2)(A)(i)(I) includes “adjustment of status,” a conclusion the courts have rejected as inconsistent with the statutory definition of this term. Section 237(a)(2)(A)(i) provides that a person who is convicted of a crime involving moral turpitude committed within five years after the date of “admission” is removable. As a result, under Shanu, the date of a person’s adjustment may trigger the five year inadmissibility period even if the person previously had a lawful admission consistent with the statutory definition. In its amicus brief, the Immigration Council argues that the statute unambiguously provides that the date of adjustment is not the date of “admission” for purposes of this statute.

Watch for future postings on developments in these and other cases at the Board.

– guest blogging by Mary Kenney, Senior Attorney, American Immigration Council.

Category: Adjustment of Status, Asylum, Family  |  Comments Off

Matter of Saysana revisited: AILA Amicus Committee files brief to BIA

03/17/2010, 3:34 pm

In Matter of Saysana, 24 I&N Dec. 602 (BIA 2008), the Board of Immigration Appeals concluded that mandatory detention was triggered when an alien (1) is removable due to one of the triggering offenses listed at INA § 236(c)(1) and (2) the alien is “released” from any non-DHS custodial setting, whether the release is related to the triggering offense or not. To date, the BIA has had a hard time finding one federal judge that agrees with this legal conclusion. Last December, the 1st Circuit directly rejected the BIA’s decision and agreed that Mr. Saysana was entitled to a bond hearing. Saysana v. Gillen, 590 F.3d 7 (1st Cir. 2009). However, the Board’s precedential Saysana decision continues to control in the remainder of the country’s Immigration Courts, a position the AILA Amicus Committee believes is untenable. Why? Because this particular brand of mandatory detention typically preys upon noncitizens who have long put their criminal history behind them and stand the best chance of winning relief before an Immigration Court.

A classic example of this came to the Committee’s attention recently. Luis Felipe Garcia-Arreola was convicted of a drug offense prior to 1996, which made him removable but eligible for INA § 212(c) relief. He was also not subject to mandatory detention because his release from the drug offense pre-dated the effective date of the mandatory detention statute. However, Mr. Garcia-Arreola was arrested last year for misdemeanor assault. The charge was dismissed by the State of North Carolina, but ICE used this “non-DHS custodial encounter” to make an immigration arrest and hold him pursuant to mandatory detention. AILA member Gerry Chapman represented Garcia-Arreola before the Charlotte Immigration Court. In a courageous decision, Immigration Judge Teresa Holmes-Simmons granted bond to Garcia-Arreola and distinguished Saysana. The government appealed the judge’s decision and, for a few days, attempted to enforce an automatic stay of Garcia-Arreola’s detention. The prompt filing of a habeas petition by a member of the AILA Amicus Committee resulted in ICE dropping the automatic stay. Mr. Garcia-Arreola is currently out of ICE custody but his bond appeal remains pending.

In its brief filed in late 2009, the government rehashed their standard mandatory detention arguments. However, earlier this year, in light of the First Circuit’s decision, Immigration and Customs Enforcement sent a letter to the BIA asking for the court to reconsider Matter of Saysana in the context of Mr. Garcia Arreola’s bond appeal. Due to the importance of this issue and the distinct possibility of a positive change of national mandatory detention policy, AILA’s Amicus Committee notified the BIA that an amicus brief in support of Mr. Garcia Arreola and the Immigration Judge’s decision would be filed.

Today, the AILA Amicus Committee filed a brief in support of Mr. Garcia Arreola’s bond with the Board of Immigration Appeals (BIA).

The brief outlines the Board’s losing streak in the District Court via habeas corpus filings challenging the government’s mandatory detention statutory interpretations under Matter of Saysana and culminating with the First Circuit overturning Matter of Saysana for Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island. While encouraging the Board to overturn Saysana, concomitantly AILA Amicus Committee asked the tribunal to reconsider its overall approach to mandatory detention. The Board’s on-going support for the broad interpretations of INA § 236(c), even beyond Saysana, has resulted in large numbers of additional detainees filing the nation’s detention centers, not to mention untold emotional, financial and psychological hardship and suffering imposed on both detainees and their families. The Amicus Committee urged the BIA to reconsider its heretofore strict and frequently overturned interpretations of INA § 236(c) in favor of a narrower and more tightly applied mandatory detention policy.

In short, the Amicus team is asking the BIA to follow the plain language of the law: mandatory detention applies when ICE detains a noncitizen removable for one of the INA § 236(c)(1) offenses “when released” from criminal custody. The statute (and anyone’s simple notion of justice) requires a nexus between the triggering offense and the criminal custody. It is our hope that the BIA will see the writing on the wall and do the right thing.

—Co-written by AILA Amicus Committee Members Kerry Doyle and Jeremy McKinney

Category: Detention  |  Comments Off

Diaz & Lopez, Briones, Acosta

03/06/2010, 7:06 pm

As much as it pains us to write this, Matter of Diaz and Lopez is a correct statement of Brand X law. In the immigration field, there are three and only three parties that can exercise power under Brand X to declare interpretations in derogation of on point circuit precedent: the Attorney General, the Secretary of Homeland Security, and the Board of Immigration Appeals. That’s it. No immigration judges, no district directors, no regional directors, no AAO, not even the head honchos at CIS in Washington, D.C. (unless acting under 8 C.F.R. 103.3(c)). Let’s put an asterisk by BALCA – it is a bit hazy if they have law-making power (we’ll explain later or you can read this AILA Amicus brief).

Right now, it is true (in our opinion) that every administrative adjudicator within the Ninth Circuit must follow Matter of Diaz and Lopez – which mandates that Matter of Briones, not Acosta v. Gonzales, 439 F.3d 550 (CA9 2006), is the law. Accordingly, individuals who are caught up in the 212(a)(9)(C) mess will have their adjustment applications denied by administrative adjudicators and that is a correct result under administrative principles. (Note: Padilla-Caldera v. Gonzales, 453 F.3d 1237 (CA10 2006) still controls in the Tenth Circuit and every administrative adjudicator therein ought to follow Padilla, not Briones. We know that is not happening – but unlawful conduct by the immigration agencies doesn’t exactly shock us.)

Make no mistake: we think Briones, and Diaz & Lopez are substantively wrong. However, in the Ninth Circuit, the substantive fight is now at the Circuit Court level. If you have a case raising an Acosta question before the Ninth Circuit, consider dropping AILA Amicus a line – we are identifying cases and may be able to help.

There are still several statutory and fairness questions that are not controlled by Briones, Diaz & Lopez, or even Acosta. First, if Acosta is a Chevron step-one decision, then Diaz & Lopez will be vacated and possibly Briones. Second, if Briones represents an unreasonable Chevron step-two interpretation of the statute, then it will also be vacated. Third, there are unresolved retroactivity questions: for individuals who filed for adjustment in reliance on the Acosta decision – shouldn’t they be entitled to an adjudication under that interpretation? This is a complex question and involves some funky Supreme Court and Ninth Circuit precedent such as Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971) and George v. Camacho, 119 F.3d 1391 (CA9 1997) (en banc). To preserve these issues, they might need to be raised before the agency and certainly before the Ninth Circuit. Some of the retroactivity questions will be clarified (we hope, favorably) in the Duran-Gonzales litigation (updates here).

We continue to ponder other statutory arguments and will post again soon on this point. Please contact an AILA Amicus circuit monitor about your case or your statutory or fairness arguments.

Category: Deference  |  Comments Off

Asylum Seekers in the Middle of a 4th Circuit Tug of War

03/05/2010, 9:29 pm

There is an internal struggle in the 4th Circuit regarding the Court’s review of asylum claims. The fact that there is a struggle at all is a sign of progress as the Fourth Circuit (based in Richmond, VA) is traditionally viewed as a very conservative court.

Last summer, a divided panel of the 4th Circuit held, in part, that the record did not compel reversal of a BIA Withholding of Removal denial – a claim involving an adult Senegalese woman who fears female genital mutilation (FGM). The majority upheld the BIA denial because the record established FGM was “rare in large urban areas” and “90% of the women who undergo FGM in Senegal are between the ages of two and five.” Gomis v. Holder, 571 F.3d 353, 360 (4th Cir. 2009). Judge Gregory wrote a vigorous dissent, finding Gomis’ facts and fears “indistinguishable” from a Judge King-penned FGM decision, Haoua v. Gonzales, 472 F.3d 227 (4th Cir. 2007). Judge Gregory closed his dissent as follows:

The IJ found Gomis credible, which means that her testimony regarding the practices of her specific ethnic group should have been properly considered, along with the abundance of evidence from her family that she will be circumcised upon her return. Only by reading the State Department’s report generally, and isolating Gomis’s age and urban upbringing in order to apply them blindly to the statistics presented, can one possibly conclude that Gomis is unlikely to undergo FGM. To deny her withholding of removal and send her back to Senegal, to virtually certain circumcision, would be a great miscarriage of justice. If we choose to ignore the blatant evidence before us of her specific situation by shielding our eyes with general statistics, then we will be sending her to a torturous future of which I shudder to imagine.

Id. at 364 -365. Judge Gregory felt so strongly about the potential “miscarriage of justice” that he requested en banc review. Gomis, herself, did not request rehearing or en banc review, but rather unsuccessfully sought certiorari before the U.S. Supreme Court. Judges Michael, Motz, King, Gregory, and Duncan voted to rehear this case, and Chief Judge Traxler along with Judges Wilkinson, Niemeyer, Shedd, and Agee voted to deny rehearing en banc. FIVE TO FIVE! But you need a majority for en banc review – so review was denied in another published decision released last September. Gomis v. Holder, 585 F.3d 197 (4th Cir. 2009). Judge Gregory wrote another blistering dissent.

While Gomis herself lost, subsequent published asylum decisions reveal that the 4th Circuit may be reexamining its self-described “deferential role” in reviewing asylum, withholding, and CAT denials. In fact, asylum seekers have been on a roll in the 4th Circuit all fall and winter! In Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009), a panel led by Judge Gregory found the BIA’s conclusion that Baharon was not subjected to past persecution in Yemen was “clearly erroneous.” The IJ and BIA erred by reducing Baharon’s treatment to a single, three-day detention, despite crediting his testimony as credible. The panel concluded the IJ and BIA had ignored the other evidence of past persecution that was within the record. In Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir.2009), another panel led by Judge Gregory concluded an adverse credibility finding was not supported by substantial evidence, and that Kourouma has established past persecution in the form of female genital mutilation. The Court concluded the IJ was hung up on Kourouma’s nationality, but the BIA found she was from Guinea. Significantly, Judge Gregory noted that the BIA should have considered how the country condition documents of record corroborated Kourouma’s testimony. Finally, in Marynenka v. Holder, 592 F.3d 594 (4th Cir. 2010), a panel (which included Judges Michael and Gregory) concluded the IJ improperly denied a rape-based asylum claim based on lack of corroborating evidence. For example, the panel found a physician’s letter should not have been discredited solely because it was “not written on printed letterhead” and was lacking a “chain of custody.” Id. at 601. The IJ should not have found that waiting “overnight to seek medical attention after a traumatic sexual assault” implausible. “[I]f anything,” Judge Michael wrote, “it is understandable.” Finally, the panel rejected the IJ’s discrediting of an affidavit written by a person seemingly available to testify. In what later may be the most quoted sentence of the opinion, Judge Michael wrote, “There is no general rule that evidence offered in corroboration requires independent corroboration.” Id. at 602.

Clearly, these three cases reveal a less deferential Circuit Court. We shall see how asylum law continues to develop within the Fourth Circuit. A new Immigration Court opened in Charlotte, North Carolina in late 2008, which will have the effect of sending additional cases to the 4th Circuit. And the Gomis tie will now be broken with the addition of new judges. Three days ago, the Senate unanimously confirmed Virginia Supreme Court Justice Barbara Milano Keenan to a seat. There remain four more vacancies to the Court.

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