by Kathy Moccio

Last summer a Minnesota Public Defender commented that the commonly held notion that immigration matters are collateral to the criminal cases of non-citizens “makes no sense at all. It’s part of their circumstances, just as much as if my client has chemical dependency issues. I have to be aware of that, and I need to give advice based upon what their circumstances are.”

On March 31, 2009 the Supreme Court agreed. In Padilla v. Kentucky, 559 U.S. ____(2010) the Court held that the Sixth Amendment right to counsel requires that non-citizen defendants receive competent immigration advice regarding the deportation risks of a plea. The Court’s recognition that deportation is inherently part of the punishment meted out to non-citizen defendants reflects the reality that immigration penalties are overly punitive. The decision paves the way for necessary changes to ensure the rights of the indigent, and others, are protected.

First, public defenders have notorious caseloads. In Minnesota budget cuts have resulted in attorneys handling double the ABA recommended caseload. Padilla clarifies the role of public defenders requiring them to focus on the immigration consequences that drive their clients’ decisions. While at initial blush this may seem a terrible burden to place on overworked attorneys, it actually frees public defenders to obtain immigration counsel to assist in the negotiation of more favorable plea agreements. This will likely alleviate the frustration and lingering doubt many attorneys struggle with when they negotiate a plea uncertain of its immigration consequences. Furthermore, working with competent immigration counsel enables public defenders to confidently argue for sentences that avoid devastating immigration consequences. The result is more effective and efficient representation which in turn benefits the criminal justice system.

Second, legislative fixes have to date inadequately protected defendants’ rights. State laws that require criminal law judges to warn defendants that a plea may carry immigration consequences amount to a warning to obtain competent immigration advice before entering a plea. Not all defendants are able to hire private immigration counsel. Padilla protects indigent immigrants who would otherwise be forced to plea without a full understanding of the immigration consequences. Furthermore, it protects immigrants who are located in jurisdictions that lack a vibrant immigration bar. This protection is particularly important for detained immigrants who are unable to travel to or call private immigration counsel.

The constitutional right to competent immigration counsel for non-citizen defendants provides needed protections against the deprivation of property, life, or all that makes life worth living. It’s not a radical idea. It’s not using the constitution to create a perfect world. It’s simply an important step towards justice.

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.

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 1^st 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

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.

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 4^th 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 (4^th 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 (4^th 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 (4^th Cir. 2009). Judge Gregory wrote another blistering dissent.

While Gomis herself lost, subsequent published asylum decisions reveal that the 4^th 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 4^th Circuit all fall and winter! In Baharon v. Holder, 588 F.3d 228 (4^th 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 (4^th 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 4^th 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.

We here at Immigration Slip Opinion are skeptical about a lot of things. We are skeptical that the Courts of Appeals understand the Chevron doctrine, we are skeptical that Congressional intent can ever be divined from the text of a statute so badly written as the Immigration and Nationality Act, and we are skeptical that random old women lurking in the woods bearing invisibility cloaks ought to be trusted (especially the ones from Grimms Fairy Tales). Allow us to explain.

It seems that not too long ago, in the course of its adjudication of the case that became Matter of S-E-G- , the Board of Immigration Appeals, apparently, encountered just such a random old woman. We don’t know what the Board was doing in the woods around Falls Church unchaperoned (wasn’t the Attorney General supposed to be keeping an eye on them?) and we don’t know why the Board felt she could be trusted, but we admit that we know so little sometimes. True, we haven’t a lot of experience with such things, but most of the invisibility cloaks we know of are either not so big or are of such rare material that one would be hard pressed to cut a swath large enough and light enough to conceal an entire class of people from the protection of our asylum laws. But that is what they did. Perhaps they know someone at JoAnn Fabrics that we do not.

Social Visibility as the Board conceives of the subject is about, well, visibility or, in the case of S-E-G, it was about invisibility. The folks at the Immigrant Law Center of Minnesota (ILCM), along with Latham & Watkins, L.L.P., represent the S-E-G- respondents, and have asked the Attorney General to certify and reverse the Board’s decision. ILCM has this web page tracking both the certification request and how S-E-G- is being received in the courts of appeals. S-E-G- itself was reopened and remanded, after an application for a stay of removal was filed with the Supreme Court, because at least two of the respondents qualified to apply for benefits under the recent reauthorization of the anti-trafficking law (the TVPRA – more on this in a subsequent post). OIL is convinced that S-E-G- retains precedential force in spite of its reopening. We are skeptical.

While a number of circuit courts now appear to accept S-E-G-, others thankfully share our skepticism of the social visibility test. In the Seventh Circuit, at the hands of Judge Posner, S-E-G- has not faired well at all, and the social visibility test has been rejected outright. The Third Circuit heard spirited oral argument on the question February 3, 2010, with one judge calling the Board’s test “gobbeldy gook” (yes, that’s a quote). And the Fifth Circuit granted rehearing in a gang asylum case (an unusual move for certain) to re-examine the social visibility test after seeing that the Seventh Circuit rejected it. OIL appears quite concerned about another strike against S-E-G- in the Fifth Circuit, judging by the eleventh hour switch in their litigation position. Just days in advance of oral argument in the panel rehearing of Orellana-Monson v. Holder, No 08-60394 (5th Cir.) (oral argument March 1, 2010), OIL is telling the Fifth Circuit that they will no longer seek to defend the underlying BIA decision as consistent with the social visibility and particularity criteria of Matter of S-E-G-.

The Supreme Court will soon consider a petition for certiorari in the gang-asylum case of Balmoras Alexander Contreras-Martinez. AILA was agnostic on Contreras-Martinez’s cert petition when it was filed and remains so today — it might be too soon for this issue to be at the Supreme Court. The petition is unlikely to be considered in conference until much later this Spring. If cert were granted (a big if), the case would not be argued until next fall at the earliest.

The Immigrant Law Center of Minnesota is tracking S-E-G- and the social visibility-gang cases.

– guest blogging by Benjamin Casper, Director of the Pro Bono Litigation Project of the Immigrant Law Center of Minnesota, with Stephen Manning, AILA Amicus Committee chair.

We begin a regular review at what’s happened and happening at the BIA.

Matter of Gamero, 25 I&N Dec. 164 (BIA 2010) (Jan. 13, 2010)

Has voluntary departure gotten complicated enough for you? Well, the BIA has added another chapter to the Vol. Dep. Book now with this decision. The BIA has determined that voluntary departure may only be reinstated by the Board if the Respondent provides proof of the posting a voluntary departure bond with the notice of appeal. As Gamero was not on notice of this requirement and the Immigration Judge failed to provide warnings of the need to provide proof of the voluntary departure bond with the notice of appeal, the case was remanded to permit warnings to be given. Presumably the Board is also allowing Gamero to comply with this new requirement.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)(Jan. 27, 2010)

Just when you thought it was safe to live in the 9th Circuit, the BIA comes back with another repudiation of 9th Circuit precedent. The legal issue at hand is whether or not INA §254(i) trumps the permanent bar on admission found in INA §212(a)(9)(C)(i)(I)? Previously in Acosta v. Gonzales, 4329 F.3d 580 (9th Cir. 2006) determined that §245(i) did trump the permanent bar.

Since that time, however, the BIA directly addressed the question of the interplay between the two statutes and in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) found the opposite of the 9th Circuit. The Board found the §212(a)(9)(C)(i) could not be overcome, even through adjustment under §245(i).

Both cases, now consolidated by the BIA, arose in the 9th Circuit and the Board directly challenges the Circuit’s previous finding and urges the Circuit to adopt the Board’s administrative interpretation of the two statutes pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) and Chevron, USA., Inc. V. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Board points out in its decision that the Second, Sixth and Seventh Circuits have given deference under Chevron to the BIA’s interpretation of the two statutes.

Additionally, the BIA pointed out that the 9th Circuit had recently adopted it’s interpretation of the interaction between INA §§245(i) and 212(a)(9)(C)(i)(II) by giving deference to the Board because of the ambiguity of the statutes and in the process overturning prior 9th Circuit precedent.

In it’s analysis, the Board rejected the argument that it was bound by Mercado-Zzueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that precludes an agency from “repeatedly putting forward an interpretation . . .” that has already been rejected as unreasonable. Diaz & Lopez at 190. The BIA says “take THAT 9th Circuit.”

Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

The on-going saga of INA §204(j) and Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) may be finally coming to a close. Under Perez-Vargas, the Board had determined that an Immigration Judge lacked jurisdiction to determine whether an employment-based visa petition remained valid under §204(j). The decision caused great confusion and a few Circuit Court cases as well. Three circuits, including the Fourth, Fifth and Sixth rejected the Board’s analysis after Perez-Vargas. As a result, the Board adopted the Circuit Courts’ interpretations and explicitly recognizes the Board’s and Immigration Judge’s authority to determine whether, despite a change of employment, an employment-based visa petition remains valid.

Sanity has now been restored—at least on this issue.

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010).

A husband and wife, natives and citizens of China were granted asylum under INA §208. Their asylum applications were filed within one year following the birth of their second child. The Court determined that applicants are not allowed a year to file asylum following “changed circumstances.” The BIA points out that the regulations require such applications to be filed “within a reasonable period . . ..” T-M-H- & S-W-C- at 194, citing 8 C.F.R. §1208.4(a)(4)(ii).

The BIA refers to prior decisions and Supplementary Information included with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), that states that a person whose immigration status is terminated or expired is generally required to file for asylum within a “reasonable period,” which has been determined to be less than six months. T-M-H- & S-W-C- at 195.

The case is remanded to determine whether the 9 month delay by the female respondent in filing for asylum and a one-year delay in filing by the male respondent following the birth of their second child is reasonable. The IJ has been instructed to make additional findings of fact “with respect to the particular circumstances involved in the delay[s] . . ….” T-M-H- & S-W-C- at 196.

Matter of Morales, 25 I&N Dec. 186 (BIA 2010).

Respondent had filed for cancellation of removal for non-permanent residents pursuant to INA §240A(b). The Immigration Judge (“IJ”) denied the application and granted voluntary departure.

The IJ had failed to consider Respondent’s step-father as a qualifying relative in determining whether the requisite hardship standard had been met. The Board points out that the definition of “parent” under the INA includes step-parents who meet particular requirements and moreover, Board cases had recognized step-parents ahs visa petitioners for many years.

The BIA found that a step-parent meeting the definition of “parent” under INA§101(b)(2) and must be considered in making a hardship determination under INA §240A(b)(1)(D).

When this decision came out, it seemed unnecessary, but apparently at least one judge in Los Angeles, CA was unable to properly evaluate the meaning of “parent” pursuant to the Immigration Laws. Another positive step forward for the Board.

Matter of Rose, 25 I&N Dec. (BIA 2010).

Ms. Rose was married to a United States citizenship and received conditional permanent resident status through her husband’s petition on her behalf. Unfortunately, he died prior to the removal of conditions on Ms. Rose’s permanent resident status. The Respondent, Ms. Rose, filed a petition to remove the conditions on her residence, but the case was denied and the Respondent’s status was terminated.

The IJ reviewed the Service’s decision and likewise denied it because the I-751 Petition to Remove Conditions was not filed jointly and there was no determination that Respondent was eligible for a waiver. A direct appeal was dismissed and a motion to reconsider was filed.

In consideration of the issue before it, the BIA determined that the death of a spouse during the two-year conditional period waives the need to file a joint petition, but the surviving spouse need not file a separate waiver if the initial petition is filed timely and the Respondent appears for an interview.

The Board determined that INA §216(c)(1)(A) and (B) exempts windows and widowers from having to file a joint petition and attend an interview. Therefore, it was an error for the Service and the IJ to deny the case for failure to make a waiver claim. The BIA also reiterates that it is the Services’ burden of proving “by a preponderance of the evidence,” that the Respondent is removable. Matter of Rose, at 185. The record was remanded.

– blogging by Kerry Doyle, AILA Amicus Committee member.

It is increasingly common for immigration lawyers who lose circuit cases to get calls from lawyers offering a deal that is too good to be true. The callers say that at absolutely no cost to you or your client, they will prepare a costly petition for writ of certiorari and take over all of the work to handle the case at the Supreme Court. All you need to do is say yes, and they will take care of the rest.

Like all deals that seem too good to be true, this one requires careful thought. Yes, your client wants to stop deportation. Yes, the circuit decision was wrong. But neither one means that you should necessarily seek review in the Supreme Court or, if you do, take on the services of the first big name law firm or law school clinic that calls.

Why? It should come as no surprise that the Supreme Court is a treacherous place for litigating immigration cases. Although we have had some big wins, we have also had major losses. And even if there is a chance at a win, everyone, including your client who lost in the circuit, has an interest in having the best possible strategy pursued.

Two years ago, lawyers from leading immigration advocacy organizations (including the AILA amicus committee) came together to form the Supreme Court Immigration Law Working Group. The purpose of the group is to assist lawyers who receive calls from firms offering to handle Supreme Court cases, to develop a coherent strategy for Supreme Court intervention in immigration cases, and to plan strategies for effective presentation of relevant issues when a case is taken up by the Supreme Court. You can reach the group at clearinghouse@immcouncil.org.

Here are some basic steps that the working group follows:

First: does a client with a losing circuit case have other options? Sometimes, there is another option, for example, through consular processing or a U visa. The lawyer who calls offering to take your case to the Supreme Court probably isn’t interested in those other options. But other immigration lawyers might be able to help you sort them out. In addition, sometimes, resolution of the issue that makes your case attractive to the Supreme Court lawyers may not really help your client. Again, immigration lawyers can assist in sorting that out.

Second: is the client’s case the best vehicle for presenting the issue? There are many ways of preserving a client’s ability to benefit from a Supreme Court decision, even if another case is the one that is heard by the Supreme Court. For example, you can seek rehearing or an extension of time while other cases so forward. The key is to figure out which is the best case to go forward.

Third: if it makes sense to seek Supreme Court review, who will do the best job? It is important to look for lawyers who will work with immigration experts and who will be as interested in a good result through settlement or agency interpretation as they are in a merits argument in the Supreme Court.

Fourth: if it makes sense to go to the Supreme Court, who can take on the work of ensuring a good set of amicus briefs that will present the issues? These briefs take time to write and it is important to ensure that each serves a discrete purpose. Otherwise, there is a danger of briefs that are at cross-purposes or simply do not get read.

Finally: what is the plan once there is a decision? The lawyers calling to take on the case are probably not thinking about the possible administrative and legislative fallout from a decision. But every Supreme Court case has the potential to set off agency action or legislative proposals. As an advocacy community, we need to be prepared for these consequences.

All said, the lawyers offering you free services may be very talented and have much to contribute. But think carefully about what is being offered before you sign on the dotted line. And give the advocates with the Supreme Court Immigration Law Working Group a chance to provide you with some advice as you negotiate this terrain.

– guest blogging by Nancy Morawetz, Professor of Clinical Law, New York University School of Law. Nancy coordinates the Supreme Court Immigration Law Working Group.

What can we say about Nijhawan? The seminal U.S. Supreme Court case, Nijhawan v. Holder, 129 S. Ct. 2294 (2009), analyzed by some brilliant people (ILRC Practice Advisory here NIP/IDP Practice Advisory here ). Nijhawan is the first three steps that Wile E. Coyote takes off the cliff and then realizes that solid ground has disappeared. It’s something suppressed like a bad childhood memory since the case was issued. As often as the mantra “immigration law is always changing” is repeated, one could always return to one, known, truth: you never, ever, look at the facts underling a conviction to determine its classification in the INA. We know this because the Supremes told us so in Taylor, Shepard and James. Even Matter of Silva-Trevino instructs that the analysis of a potential crime of moral turpitude begins with the categorical approach. Maybe we exaggerate the negative aspects of the case. Perhaps we have misremembered the basis of the Nijhawan decision? After reading and re-reading, we are sorry to say, no.

The holdings are simple enough (1) A fraud offense that does not include the amount of loss as an element may still be an aggravated felony as described by INA § 101(a)(43)(M)(i) and (2) an individual’s admission that the victim lost over $10,0000 at sentencing is enough to prove the loss amount. Id. at 2302, 2303. But the holdings are not the juicy part of this case; at least not the holdings standing alone. Rather, it is this notion of a “circumstance-specific”
approach to analyzing offenses. This radical departure from our otherwise comfortable categorical world has not gone unnoticed by our opponents. We know of at least two cases pending at the Court of Appeals where the Office of Immigration Litigation is seeking a remand to the agency so it can have the first opportunity to decide whether or not an offense is “categorical” or “circumstance-specific,”citing Nijhawan. Apparently OIL also believes that the agency’s decision should be given deference. Does Nijawan provide any support for that position?

Here is where the cartoon physics come in hand. The question one always asked (at least we did) when Mr. Coyote was racing off the cliff – if he never looked down and realized the abyss below stretched on, would he have made it to the other side? Let us, for a moment, look ahead.

Fresh highlighter in hand, we printed a clean copy of Nijhawan and sat down to ponder OIL’s position. In the end, we are persuaded that their argument fails because the Court’s conclusion that aggravated felony fraud definition in the INA calls for a “circumstance specific” analysis relied heavily upon its ability to distinguish elements from non-elements of a criminal offense. This is inherently a criminal law inquiry over which the agency has no expertise and therefore not entitled to deference.

In one instance, the Court notes that the “in which” language of “in which the loss to the … victims exceeds $10,000”can theoretically refer to the elements or the facts involved in the actual commission of the offense, not to the elements of the offense, but concludes it must not be an element given that virtually no federal or state fraud offense that met the definition. Id. at 2301-2. Elsewhere, the Court notes that applying the categorical approach to a non-element fact would be problematic because it would require a special verdict on a fact that is not an element. Id. at 2303. Though far from direct holdings, recalling that the Supreme Court appeared nearly certain that the amount of loss to the victim is not an element of a fraud offense, where an offense is somewhat ambiguous, there may be room to distinguish Nijhawan.

A statue containing ambiguous language is not necessarily subject to a “circumstance-specific” approach. If the language clearly refers to a generically-described crime and there is even a chance that it describes an element of the offense, the categorical approach should apply. The Court admits that the Armed Career Criminal Act, the statute at issue in Taylor, includes ambiguous language that is still subject to the categorical approach. While the interpretation is more difficult where there is ambiguous language, some ambiguity where the language refers to crimes as generically defined as opposed to the way in which the offense was committed. Id. 2300.

By studying the decision we may not be able to remove Nijhawan from our list of least-favored-cases, but we can better defend against misapplications of the case and minimize further erosion of our beloved categorical approach. Don’t look down.

–Blogging by Maria Andrade, AILA Amicus Committee