Remedies and Strategies for Permanent Resident Clients [3 ed.]

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This manual contains detailed chapters on the grounds of deportability and inadmissibility, as well as the most common remedies for those charged with removability for crimes: LPR cancellation of

removal (Chapter 4), former § 212(c) relief (Chapter 5), and relief under § 212(h) of the Immigration & Nationality Act (Chapter 6). It also contains a Chapter devoted to the comparison of LPR cancellation of removal and § 212(h) relief (Chapter 7), and a summary of other, less common remedies for permanent resident clients (Chapter 8). Finally, it contains a separate chapter on detention, (Chapter 9) and a chapter on how to work with clients to obtain the best evidence in their cases (Chapter 10). Throughout the manual we also emphasize that termination of removal proceedings is the best remedy for the permanent resident client. Therefore, we present arguments that you can use to challenge the Notice to Appear and continually remind practitioners that whether or not a client has a claim to U.S. citizenship should never be ignored.

Remedies and Strategies for Permanent Resident Clients

Remedies and Strategies for Permanent Resident Clients. Protect your permanent resident clients from being removed under a deportation or inadmissibility ground using the expert analysis and framework for representation contained in this manual. Designed as a “how to” manual, we provide clear, concise and detailed explanations of the grounds of removal permanent residents are most likely to face; when the grounds of inadmissibility and deportation do and don’t apply; how to argue that they don’t apply, and the immigration remedies available for each. We also discuss our tips for working with clients to elicit the evidence necessary to successfully defend their cases.

Remedies and Strategies for Permanent Resident Clients TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

3rd Edition By ILRC Staff Attorneys

1663 MISSION STREET SUITE 602 SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792

WWW.ILRC.ORG

3rd Edition

Remedies and Strategies for Permanent Resident Clients 3rd Edition By ILRC Staff Attorneys

The Immigrant Legal Resource Center

A

Copyright 2017 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 415.255.9499 www.ilrc.org

ACKNOWLEDGEMENTS We are grateful to our ILRC staff past and present who contributed to this manual. The prior edition was written by Nora Privitera, Kathy Brady, and Angie Junck, with able assistance from Eric Cohen, Sally Kinoshita, and Su Yon Yi of the ILRC, and our colleagues Holly Cooper and Sara Edelstein. This edition was led by authors and editors Kathy Brady and Rose Cahn, who were joined by ILRC authors and editors Allison Davenport, Lena Graber, Alison Kamhi, Sally Kinoshita, Erin Quinn, and Grisel Ruiz. Practitioners Ann Block and Aruna Sury also contributed their expertise to various chapters. We are especially grateful for the time these advocates put in to updating this book while working tirelessly to support immigrants at the beginning of President Trump's administration. ILRC staff and colleagues committed to updating this manual, because providing high-level advocacy to defend immigrants has never been more important. The Immigrant Legal Resource Center is a unique organization that combines community organizing and civic participation projects with meticulous and creative legal work, and an interactive and student-centered approach to teaching that is rare in the legal field. Our staff makes the ILRC a great place to work. We are especially grateful to Tim Sheehan for his patient and meticulous work in creating this edition; Jonathan Huang for his work on the on-line resources; Linda Mogannam for her patient leadership in creating publications; and the whole ILRC staff.

Remedies and Strategies for Permanent Resident Clients January 2017

REMEDIES AND STRATEGIES FOR PERMANENT RESIDENT CLIENTS 3RD EDITION TABLE OF CONTENTS Chapter 1

Remedies and Strategies for Permanent Resident Clients

§ 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8

Introduction ........................................................................................................ 1-1 How to Use This Manual.................................................................................... 1-2 Which Permanent Residents Are Subject to the Grounds of Inadmissibility and Which Are Subject to the Grounds of Deportability .......... 1-3 Burdens of Proof ................................................................................................ 1-7 Evidentiary Considerations; Motions to Suppress ........................................... 1-10 When and Whether to Concede Removability ................................................. 1-15 Analyzing Your Client’s Case .......................................................................... 1-17 A Word on Judicial Review ............................................................................. 1-18

Chapter 2

Criminal Grounds of Inadmissibility and Deportability

§ 2.1 § 2.2

Introduction and Overview................................................................................. 2-1 Definition of Conviction and How to Avoid a Conviction for Immigration Purposes......................................................................................... 2-7 Definition of Sentence ...................................................................................... 2-15 The Categorical Approach in Three Steps........................................................ 2-18 Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach ................................................................ 2-25 Exceptions to the Categorical Analysis ............................................................ 2-28 Overview of Immigration Consequences of Crimes ........................................ 2-32 Aggravated Felonies ......................................................................................... 2-35 Crimes Involving Moral Turpitude .................................................................. 2-39 Controlled Substance Offenses ........................................................................ 2-48 Domestic Violence, Child Abuse, Prostitution................................................. 2-68 Ground of Inadmissibility for Prostitution and Commercialized Vice............. 2-76 Firearms Offenses ............................................................................................ 2-77 Failure to Register as a Sex Offender Deportation Ground ............................. 2-82 Ground of Inadmissibility for Two or More Convictions with Total Sentences of Five Years ................................................................................... 2-84

§ 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8 § 2.9 § 2.10 § 2.11 § 2.12 § 2.13 § 2.14 § 2.15 Chapter 3

Other Grounds of Inadmissibility and Deportability

§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7

Alien Smuggling ................................................................................................ 3-1 Document Fraud ............................................................................................... 3-10 False Claim to U.S. Citizenship ....................................................................... 3-16 Illegal Voting.................................................................................................... 3-22 Inadmissible at Time of Admission and Now Removable ............................... 3-25 Inadmissible for Misrepresentation and/or Fraud............................................. 3-26 Abandonment of Residence: Losing One’s Permanent Resident Status .......... 3-30

Appendix 3-A

Decision of the Board of Immigration Appeals, October 27, 2008

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Chapter 4

Waiver of Inadmissibility and/or Deportability under INA § 240A(a): Cancellation of Removal for Lawful Permanent Residents

§ 4.1

Overview of Requirements for Cancellation of Removal; Effect of a Grant ................................................................................................................ 4-1 Removal Grounds That Can Be Waived by Cancellation of Removal .............. 4-3 The Applicant Must Have Been a Lawful Permanent Resident for at Least Five Years ............................................................................................. 4-4 Continuously Resided in the U.S. for Seven Years after Admission ................. 4-7 Conviction of an Aggravated Felony ............................................................... 4-19 Proving That Your Client Merits a Favorable Exercise of Discretion ............. 4-19

§ 4.2 § 4.3 § 4.4 § 4.5 § 4.6 Appendix 4-A

Sample Completed EOIR-42A

Chapter 5

Relief under Former § 212(c)

§ 5.1 § 5.2 § 5.3

Overview of Requirements and Procedure for Former § 212(c) Relief ............. 5-1 The Former § 212(c) Relief and the Holding in INS v. St. Cyr .......................... 5-7 Supreme Court Decision in Judulang v. Holder, Rejecting Statutory Counterpart Rule ................................................................................................ 5-8 Adjustment of Status and § 212(c) ................................................................... 5-11 Section 212(c) Eligibility for Those Convicted by Jury Trial .......................... 5-12 When the Seven Years of Lawful Unrelinquished Domicile Begins and Ends .................................................................................................................. 5-13 How Dates of Conviction Affect § 212(c) Eligibility ...................................... 5-14 Section 212(c) Eligibility for People Who Were Ordered Deported before St. Cyr Was Decided ............................................................................. 5-16 DHS Regulations Governing § 212(c) Applications in the Wake of St. Cyr ................................................................................................ 5-19 Proving That Your Client Merits a Favorable Exercise of Discretion ............. 5-22

§ 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 Appendix 5-A Appendix 5-B Appendix 5-C

Form I-191 & Instructions 8 CFR § 1003.44: Motions to Reopen for § 212(c) after St. Cyr 8 CFR § 1212.3: Eligibility for § 212(c) after St. Cyr

Chapter 6

Waiver of the Criminal Grounds of Inadmissibility under INA § 212(h)

§ 6.1 § 6.2 § 6.3 § 6.4

Introduction to the § 212(h) Waiver ................................................................... 6-1 Inadmissibility Grounds That Can Be Waived under § 212(h) .......................... 6-4 General Requirements for Eligibility for § 212(h) Relief ................................ 6-10 Restrictions on § 212(h) Eligibility for Certain Lawful Permanent Residents .......................................................................................................... 6-14 When Can One Use the § 212(h) Waiver? ....................................................... 6-23 Discretion in § 212(h) Cases ............................................................................ 6-31 Discretion in Violent or Dangerous Offenses .................................................. 6-34

§ 6.5 § 6.6 § 6.7

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Chapter 7

Comparing § 212(h) Waivers and LPR Cancellation of Removal

§ 7.1 § 7.2 § 7.3 § 7.4

How to Approach Each Case.............................................................................. 7-1 The Advantages and Disadvantages of § 212(h) ................................................ 7-2 The Advantages and Disadvantages of LPR Cancellation of Removal ............. 7-5 Case Examples ................................................................................................... 7-7

Chapter 8

Other Remedies for Permanent Residents Facing Removal

§ 8.1

Remedies for LPRs Found to Have Been Inadmissible at the Time of Their Original Admission................................................................................... 8-1 Special Domestic Violence Waiver under INA § 237(a)(7)............................. 8-17 Adjustment of Status ........................................................................................ 8-18 Naturalization as a Remedy to Removal Proceedings: Termination of Removal/Deportation Proceedings under 8 CFR § 1239.2(f) [formerly 8 CFR § 239.2(f) and 8 CFR § 242.7(e)] ......................................................... 8-20 Acquisition and Derivation of U.S. Citizenship ............................................... 8-24 Asylum, Withholding of Removal & Relief under the Convention Against Torture (CAT) ..................................................................................... 8-26 Remedies for Victims and/or Witnesses to Crimes .......................................... 8-30

§ 8.2 § 8.3 § 8.4

§ 8.5 § 8.6 § 8.7 Appendix 8-A Appendix 8-B

Charts A & B: Determining Whether Children Born outside the U.S. Acquired Citizenship at Birth Chart C: Derivative Citizenship—Lawful Permanent Resident Children Gaining Citizenship through Parents’ Citizenship

Chapter 9

Release from Detention

§ 9.1 § 9.2 § 9.3 § 9.4

Introduction ........................................................................................................ 9-1 Custody Determination....................................................................................... 9-2 Venue and Timing: Where and When to Request a Bond Hearing .................... 9-5 Mandatory Detention of Noncitizen Criminal Offenders during Removal Proceedings under INA § 236(c) ........................................................................ 9-6 Challenging Mandatory Detention and Prolonged Detention ............................ 9-8 Detention of Persons with Final Orders of Removal and No Stay of Removal from the Circuit Court of Appeals, Including Persons Granted Withholding or Deferral of Removal ............................................................... 9-13 Detention of Persons with Final Orders Who Have a Motion to Reopen Pending ............................................................................................................. 9-17 Detention of “Arriving Aliens” ........................................................................ 9-18 Detention of Persons with Credible Claims to U.S. Citizenship ...................... 9-19

§ 9.5 § 9.6

§ 9.7 § 9.8 § 9.9 Chapter 10

Working with Clients and Presenting Evidence: How to Make the Best Case Possible

§ 10.1 § 10.2 § 10.3 § 10.4

The Advocate/Client Partnership ..................................................................... 10-1 Creating a Partnership with Our Clients........................................................... 10-3 Dealing with Your Client’s Feelings ................................................................ 10-6 Preparing the Case for Hearing ........................................................................ 10-9

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§ 10.5 § 10.6 § 10.7 § 10.8 § 10.9 Appendix 10-A Appendix 10-B

Important Duties for Client and Advocate ..................................................... 10-14 Introduction .................................................................................................... 10-15 Extreme Hardship ........................................................................................... 10-16 Equities ........................................................................................................... 10-28 Proving Rehabilitation: The Three Story Approach ....................................... 10-30 Declaration of JS (A# 000-000-000) in Support of Application for Cancellation of Removal List of Hardship Factors

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CHAPTER 1 REMEDIES AND STRATEGIES FOR PERMANENT RESIDENT CLIENTS

This chapter includes: § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8

Introduction ........................................................................................................ 1-1 How to Use This Manual.................................................................................... 1-2 Which Permanent Residents Are Subject to the Grounds of Inadmissibility and Which Are Subject to the Grounds of Deportability .......... 1-3 Burdens of Proof ................................................................................................ 1-7 Evidentiary Considerations; Motions to Suppress ........................................... 1-10 When and Whether to Concede Removability ................................................. 1-15 Analyzing Your Client’s Case .......................................................................... 1-17 A Word on Judicial Review ............................................................................. 1-18

§ 1.1

Introduction

To be an effective immigration advocate, it is essential to have a thorough understanding of the laws affecting your clients. This manual is designed to give practitioners that understanding with respect to Lawful Permanent Residents1 who have been charged with being removable. This manual is designed as a “how to” manual; it contains detailed explanations of the grounds of removal LPRs are most likely to face, when they do and don’t apply, the remedies for each, and the practicalities of working with clients to elicit the evidence necessary to successfully defend their cases. Although the primary focus of this book is on the remedies available for LPR clients who have been found removable, we wish to emphasize from the outset that the first line of defense in many cases involving LPR clients will be to deny the allegations in the Notice to Appear (NTA) and move for termination of the proceedings. This is a tactic to use in a number of situations; for example, where the government bears the burden of proof, or when there is a question about the legality of the arrest, or when there is an argument to be made that your client does not fall within the inadmissibility or deportability grounds charged in the NTA.2 Finally, but very importantly, don’t forget that some of your LPR clients may actually turn out to be U.S. citizens by operation of law, and this possibility should always be explored when representing LPR clients in removal proceedings.

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In this manual, we will refer to Lawful Permanent Residents in the following ways: lawful permanent residents, LPRs, permanent residents, or green card holders. 2 These issues will be discussed in more detail in Chapters 2 and 3.

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§ 1.2

How to Use This Manual

Our goal in writing this manual has been to provide practitioners with an easy, practical way to find information that is specific and relevant to the situations faced by their LPR clients. Chapter 1 provides a framework for analyzing cases, and therefore should be read first. Each chapter is described below: Chapter 1: This chapter contains a general discussion of what the grounds of deportability and inadmissibility are, where they are found in the Immigration and Nationality Act (INA)3 and when each of those grounds may apply to LPRs. Next, we focus on the burden of proof, how it differs depending on whether your client is charged with being inadmissible or deportable, the particular rules for LPRs, and the burden of proof when an LPR is seeking relief from removal. We also discuss evidentiary rules and suppression of evidence, how to decide whether or not to concede removability, and how to go about analyzing cases. Chapter 2: The subject of Chapter 2 is the criminal grounds of inadmissibility and deportability, which are the most common grounds alleged for removal of LPRs. This chapter provides an in-depth analysis of these grounds, the differences between them, and when they apply. It also includes an analysis of how the terms “conviction” and “sentence” are defined under the Immigration and Nationality Act (INA), the documents that can be produced to prove that a conviction exists, the categorical approach (how to analyze whether a conviction triggers a removal ground), the effect of post-conviction relief and appeals, federal v. state definitions of crimes, etc. Chapter 2 provides useful tools for successfully arguing against the removal of LPRs with criminal records. Chapter 3: This chapter covers the non-criminal grounds of inadmissibility and deportability that are applicable to LPR clients, such as a false claim to U.S. citizenship and unlawful voting, deportability for being inadmissible at the time of admission, smuggling, use of false documents, and abandonment of residence. Chapter 3 analyzes each of these grounds, when they apply, and how to argue against them. In addition, Chapter 3 covers the specific waivers applicable to the smuggling, misrepresentation, and document fraud inadmissibility and deportability grounds. Chapter 4 analyzes the remedy of Cancellation of Removal for Permanent Residents under INA § 240A(a), including the types of grounds that can be waived, an in-depth discussion of each of the eligibility requirements, the burden of proof, bars to relief, and the evidence required to prove your client merits a favorable exercise of discretion. Chapter 5 discusses relief under former § 212(c), the predecessor to Cancellation of Removal for Permanent Residents. It includes a brief history of § 212(c), including the effect of amendments made by the Immigration Act of 1990 (IMMACT 90) 4 and the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),5 followed by an explanation of who is still eligible for § 212(c) under the Supreme Court’s rulings in INS v. St. Cyr 6 and Judulang v. Holder.7

3

8 USC § 1101, et. seq. PL 101-649, effective November 29, 1990. 5 PL104-132, effective April 24, 1996. 6 533 U.S. 289 (2001). 7 565 U.S. 42 (2011). 4

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Chapter 6 provides a thorough discussion of the § 212(h) waiver for criminal grounds of removal, the eligibility requirements, the special restrictions for LPRs and when they apply, and the evidentiary requirements for the waiver. Chapter 7 contains an in-depth comparison of the § 212(h) waiver and Cancellation of Removal under § 240A(a), the benefits and drawbacks of each remedy, and how to analyze which of these remedies to pursue for your client. It also contains examples to illustrate the kinds of situations in which a comparison of these two remedies is likely to come up. Chapter 8 covers other potential remedies for LPR clients facing removal, including waivers under § 237(a)(1)(H), adjustment of status and naturalization as remedies, etc. You should be familiar with Chapters 2–6 before reading Chapter 8. Chapter 9 is devoted to detention, including the rules for mandatory detention under § 236(c), the differences between pre- and post-removal hearing detention, and challenges to your client’s detention. Chapter 10 discusses techniques for working with clients to obtain the most effective evidence to defend their cases, what types of evidence are most likely to be relevant to their cases, and how to obtain and present different kinds of evidence. § 1.3 Which Permanent Residents Are Subject to the Grounds of Inadmissibility and Which Are Subject to the Grounds of Deportability A.

General Rules for Noncitizens

Generally speaking, the terms “admission” and “admitted” are defined in INA § 101(a)(13). This section was added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). 8 INA § 101(a)(13)(A) defines admission as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.” Those who have been admitted are subject to the grounds of deportability. In contrast, those who have not been admitted are considered “applicants for admission” and are subject to the grounds of inadmissibility. The grounds of inadmissibility are found at INA § 212(a), and the grounds of deportability are found at INA § 237(a). Though they are similar, they are not identical. The differences between them can have a serious effect on your LPR client’s eligibility for relief from deportation. The following people are subject to the grounds of inadmissibility: • • • •

Noncitizens who entered without inspection Applicants for admission at the border, such as nonimmigrant visa holders, those eligible for a visa waiver, and immigrant visa holders arriving for the first time 9 Applicants for adjustment of status Parolees; see INA § 101(a)(13)(B)

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Pub. L. 104-128, enacted 9/30/96; effective 4/1/97. A person with an immigrant visa from a U.S. Consulate abroad does not become a lawful permanent resident until and unless he or she is admitted at a U.S. border while the immigrant visa is valid, and within six months of the date the visa was granted. See 22 CFR §§ 42.72-42.64(b).

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• •

Alien crewmen; see INA § 101(a)(13)(B) Lawful permanent residents, including conditional residents, who are returning from a trip outside the U.S. and fall within § 101(a)(13)(C)

The following people are subject to the grounds of deportability: • • • • • B.

Nonimmigrant visa holders within the United States following an admission People admitted as visa waiver entrants Visa holder and visa waiver overstays in the United States Refugees Lawful permanent residents, including conditional residents, except those who are returning from a trip outside the U.S. and fall within INA § 101(a)(13)(C) The Special Rules Governing Admission of Returning Lawful Permanent Residents under § 101(a)(13)(C)

Usually, LPRs are not considered to be making a new application for admission each time they return from a trip abroad. Most of the time, therefore, they are subject to the grounds of deportability rather than the grounds of inadmissibility. However, there are circumstances in which an LPR will be considered an applicant for admission upon return from a trip abroad. These circumstances are described in INA § 101(a)(13)(C) and listed below: • • • • • •

Where the person has abandoned or relinquished lawful permanent resident/LPR status [INA § 101(a)(13)(C)(i)] Where the person has been absent from the U.S. for more than 180 consecutive days [INA § 101(a)(13)(C)(ii)] Where the person has engaged in illegal activity after having left the U.S. [INA § 101(a)(13)(C)(iii)] Where the person left the U.S. while proceedings to remove him or her from the U.S. were pending [INA § 101(a)(13)(C)(iv)] Where the person has committed an offense described in INA § 212(a)(2) [INA § 101(a)(13)(C)(v)] (criminal grounds of inadmissibility) unless the person has been granted relief under INA § 212(h) or 240A(a) Where the person attempts to enter without inspection or has not been admitted to the U.S. after inspection [INA § 101(a)(13)(C)(vi)]

The government bears the burden of proving by clear and convincing evidence that a lawful permanent resident who returns from a trip abroad comes within one of the above exceptions, and therefore is seeking a new admission under § 101(a)(13)(C). Matter of Rivens, 25 I&N Dec. 623, 625-26 (BIA 2011). A lawful permanent resident who is held to be seeking a new admission can be refused admission if she comes within a ground of inadmissibility. Example 1: Marc is a permanent resident. In 2009 he travels to France for two weeks to attend a conference and then returns to the United States. He is suffering from infectious tuberculosis, which is considered a disease of public health significance that makes him

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inadmissible under INA 212(a)(1)(A). As a returning permanent resident, Marc is deemed not to be “seeking admission” at the U.S. border. Therefore, although the DHS discovers that he is inadmissible for infectious TB, it cannot charge him with being inadmissible and place him in removal proceedings as a person “seeking admission,” because his illness is not one of the categories listed in § 101(a)(13)(C) that causes him to be an “applicant for admission.” Marc should be able to lawfully re-enter the United States, though he may be quarantined because of his illness. Legally, Marc has not made a new admission. His illness is not one of the circumstances that would cause the government to treat him as an arriving alien. Example 2: What if Marc takes another trip and stays outside the United States for 190 days? In that case, when he returns he will be “seeking admission,” for having been absent for more than 180 days under INA § 101(a)(13)(C)(ii). The DHS can bring him into removal proceedings and charge him with being inadmissible for his TB in addition to charging him with abandonment of his residence. Marc might or might not meet the requirements for a discretionary medical waiver or for cancellation of removal. PRACTICE TIP: If the only reason that a permanent resident comes within § 101(a)(13)(C) is one or more criminal convictions from before April 1, 1997, a different rule may apply. See discussion in Subsection C, below, and Chapter 6, § 6.5. Date of Admission. It is important to understand what the date is of an LPR’s admission, because specific immigration provisions apply depending upon that date. This question arises in a few contexts. A non-citizen is deportable if convicted of one crime involving moral turpitude carrying a potential one-year sentence that was committed within five years after admission to the United States. The date of admission can also make a difference in whether a permanent resident is eligible for certain forms of relief, such as LPR Cancellation of Removal under INA § 240A(a) and eligibility for a waiver of inadmissibility under INA § 212(h). See Chapters 4 and 5 for information on this issue in the context of eligibility for these two forms of relief. 10 For those who immigrated through consular processing, the admission date is the date they arrived in the U.S. for the first time with their immigrant visas. For those who adjusted status to become LPRs, there was some controversy as to what date counted as the date of admission. The BIA had held that the date of adjustment counts as the admission date, even if the person had previously been admitted as a nonimmigrant visa holder. See In re Shanu, 23 I&N Dec. 754 (BIA 2005); see also Matter of Rosas, 22 I&N Dec. 616 (BIA 1999). Most courts of appeal disagreed with the BIA, however, and held that adjustment of status only counts as an admission when the person previously entered without inspection. See Martinez v. Mukasey, 519 F.3d 532 (5th Cir. 2008), Shivaraman v. Ashcroft, 360 F. 3d 1142 (9th Cir. 2004) and Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005). The BIA subsequently modified its position on this issue in Matter of Alyazji, 11 in which it defined the “date of admission” for 10

This controversy is also relevant for purposes of finding deportability under INA § 237(a)(2)(A)(i). See Chapters 2, and 5. 11 25 I&N Dec. 397 (2011).

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triggering the deportability ground for a crime of moral turpitude with a potential sentence of one year committed within five years of admission, 12 as the “the date of the admission by virtue of which the alien was present in the United States when he committed his crime.” 13 See further discussion on this issue at Chapter 2, § 2.6. Example: James came to the U.S. in H-1B status on July 1, 2008, and subsequently adjusted his status to lawful permanent resident on September 1, 2013. On July 15, 2014, he committed embezzlement, under a statute that is a crime of moral turpitude that carries a potential sentence of a year or more. He was convicted of this offense on September 15, 2014. Is he deportable for conviction of a crime of moral turpitude with a potential sentence of at least one year that was committed within five years of admission, under INA § 237(a)(2)(A)(1)? No. Under Matter of Alyazji, James’ admission date is the date he last arrived with his H1B visa, July 1, 2005. His offense was committed on July 15, 2011, more than six years later. He is therefore not deportable under INA § 237(a)(2)(A)(1). C.

LPR Travel and Convictions from before April 1, 1997: The Fleuti Exception

Before IIRIRA came into effect on April 1, 1997, there were different rules governing when a lawful permanent resident returning from a trip abroad made an entry (just as IIRIRA created special rules for when a returning lawful permanent resident is seeking admission). Entry is a term of art with a long history of judicial interpretation. Before 1997, the definition of “entry” included a presumption that all lawful permanent residents are seeking re-entry to the United States upon return from a trip abroad. In Rosenberg v. Fleuti, 14 the Supreme Court created an important exception. It stated that permanent residents can rebut the presumption that they are making an entry upon return from a trip abroad if they establish that the trip was brief, casual and innocent and not a meaningful departure interrupting their residency. In contrast, the statutory definition of admission in INA § 101(a)(13), effective April 1, 1997, presumes that returning lawful permanent residents are not seeking admission unless they come within one of the six exceptions. 15 These exceptions do not look exclusively at the character of the absence, but also look to the character of the behavior on the part of the resident. The 1997 statutory definition of admission replaced the statutory language defining entry in the Act. 16 In Vartelas v. Holder, 566 U.S. 257 (2012), the Supreme Court held that the former Fleuti standard still applies if the only convictions that would cause a returning LPR to come within INA § 101(a)(13)(C) occurred before April 1, 1997, the date that § 101(a)(13) was enacted. The Court determined that applying § 101(a)(13) to a conviction from before its enactment would retroactively impose a “new disability” on the conviction. Before enactment of § 101(a)(13), a permanent resident with this conviction could travel briefly outside the U.S. without relinquishing his or her lawful status; after enactment of § 101(a)(13), the person could not. Vartelas, at 266. The Court noted that where a new disability is imposed, the principle against retroactive 12

INA § 237(a)(2)(A)(i). Matter of Alyazji, at 406 [emphasis added]; see also Chapter 2, § 2.6. 14 Rosenberg v. Fleuti, 374 U.S. 449 (1963). 15 See INA § 101(a)(13(C). 16 IIRIRA § 301(a), amending INA § 101(a)(13), 8 USC § 1101(a)(13). 13

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legislation instructs that “courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity.” Vartelas at 1486. The Court found that Congress did not unambiguously instruct retroactivity in enacting § 101(a)(13)(C). Therefore, in order to avoid an improper retroactive penalty, the Court held that if a permanent resident travels outside the U.S. now while inadmissible solely due to a pre-April 1, 1997 conviction, authorities must employ the Fleuti definition of “entry” rather than § 101(a)(13)(C) upon the person’s return. Under the Fleuti doctrine, as long as the LPR’s absence from the U.S. was “brief, casual, and innocent,” she is deemed not to be making a new entry upon her return. Example: In 1995, Rinsing was convicted of an offense that made him inadmissible under the moral turpitude ground. In 2016, Rinsing took a three-week trip outside the U.S. to visit relatives. Under INA § 101(a)(13)(C), a permanent resident who is inadmissible for crimes is deemed to be seeking a new admission upon his return from a trip abroad, and may not re-enter the U.S. unless he receives a waiver of inadmissibility such as § 212(h). Is Rinsing seeking a new admission? No. The only reason that Rinsing would come within § 101(a)(13)(C) is his conviction from before April 1, 1997. Therefore, under Vartelas we must apply the Fleuti definition of entry rather than § 101(a)(13). Rinsing’s return from a short trip to visit family is not a new entry under Fleuti, because his absence from the U.S. was “brief, casual, and innocent” and not meaningfully interruptive of his residence. Therefore, he is not deemed to be seeking a new admission. He can re-enter the U.S. despite being inadmissible for crimes. He does not need to seek a waiver of inadmissibility. For further information on Vartelas, see online Practice Advisory 17 and Chapter 6, § 6.5. § 1.4

Burdens of Proof

Burden of proof is a complex and confusing subject, largely because the burden of proof shifts depending on the status of the person involved, and the situation he or she is faced with. The following is a brief synopsis of the differing burdens of proof, which are dealt with in more detail in subsequent chapters in the context of specific grounds of removability and specific forms of relief from removal. A.

The Burden of Proof of Alienage Falls on the Government

For noncitizens found within the United States without being admitted or paroled, the government bears the burden of proving alienage. 8 CFR § 1240.8(c); see also Murphy v. INS 54 F.3d 605 (9th Cir. 1995). 18 The evidence required to prove alienage is not specified by regulation. Even if

17

See Vargas et al., “Vartelas v. Holder: Implications for LPRs” (April 5, 2012) at www.nationalimmigrationproject.org/legalresources/practice_advisories/cd_pa_Vartelas_Practice_Advisor y.pdf. 18 Holding that the burden of proving alienage always remains on the government because it is a jurisdictional matter.

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the person has submitted an application for relief from removal, the information in that application cannot be held to be an admission of alienage. 8 CFR § 1240.11(e). 19 Once alienage has been established, the noncitizen must prove by clear and convincing evidence that he or she is lawfully in the U.S. pursuant to a prior admission, or is clearly and beyond a doubt entitled to be admitted to the U.S. and is not inadmissible as charged. 8 CFR § 1240.8(c). 20 For noncitizens in removal proceedings, once alienage has been established, the burden of proof shifts to the noncitizen to show the time, place, and manner of entry. INA § 291; see also Matter of Benitez, 19 I&N Dec. 173 (BIA 1984). B.

The Burden of Proof under the Inadmissibility Grounds in INA § 212(a) 1. General rules for noncitizens

Under INA § 240(c)(2), noncitizens who are subject to the grounds of inadmissibility, which includes those who are applying for adjustment of status under § 245, bear the burden of proving either: 1. that they are “clearly and beyond doubt entitled to be admitted and not inadmissible under section 212” or, 2. by clear and convincing evidence, that they are lawfully present in the U.S. pursuant to a prior admission. 2. Lawful permanent residents and the burden of proof under the inadmissibility grounds Despite the general rule governing the burden of proof for those deemed “applicants for admission” under IIRIRA, permanent residents who are subject to the grounds of inadmissibility as arriving aliens have more rights than other noncitizens. For example, under INA § 235(b)(2), a returning resident charged as an “arriving alien” has the right to a removal hearing under INA § 240. Furthermore, in Kwong Hai Chew v. Colding, 21 and Landon v. Plasencia, 22 the U.S. Supreme Court held that LPRs returning from a trip abroad are entitled to due process protections, meaning that they have the right to a full and fair hearing and the right to confront the evidence against them. See Landon v. Plasencia. In addition, the Supreme Court has held that if a returning lawful permanent resident is to be deprived of his status, the government may only do so in a proceeding in which the government is both the moving party and bears the burden of proof. Kwong Hai Chew v. Colding. No statutory scheme invented by Congress can override these constitutional protections.

19 Except for asylum and withholding applications filed before USCIS (affirmative applications) on or after January 4, 1995. Defensive applications (first filed before EOIR) cannot be used to establish alienage. 20 Murphy v. INS, above; see also Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001). 21 344 U.S. 590 (1953). 22 459 U.S. 21 (1982).

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C.

The Burden of Proof under the Deportability Grounds in INA § 237

For noncitizens who are subject to the grounds of deportability, the government bears the burden of proving, by clear and convincing evidence, that the noncitizen is deportable. INA § 240(c)(3)(A); 8 CFR § 1240.8(a). “No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” Kwong Hai Chew v. Colding, INA § 240(c)(3)(A). In addition, INA § 240(c)(3)(B) contains specific rules governing the type of evidence required to prove the existence of criminal convictions. The government bears the burden of proving both (1) the existence of a criminal conviction; and (2) that the conviction triggers a ground of deportability or inadmissibility. These rules, and case law governing the establishment of deportability based on a criminal conviction, are covered in Chapter 2. Under the Supreme Court case, Woodby v. INS, 385 U.S. 276 (1966), the standard for proving deportability was deemed to be clear, unequivocal, and convincing evidence. It’s not clear whether there is a difference between “clear and convincing” and “clear, unequivocal and convincing,” but since the Woodby decision is constitutionally based, it should be the required standard of proof. In any event, there are some interesting examples of how the standard of proof for deportability has been applied in practice. In Matter of Vivas, 23 the BIA held that where the government has made a prima facie case for deportability, the noncitizen may be required to submit evidence that rebuts the government’s case if the evidence in question is within the noncitizen’s knowledge and control. In Matter of Vivas, the respondent was a permanent resident who supposedly obtained his residence through a U.S. citizen spouse. However, the government produced a witness claiming that the birth certificate alleged to belong to the respondent’s spouse was actually the witness’s, and that she had never met him. Under these circumstances, the BIA affirmed the immigration court’s decision finding the respondent deportable. Similarly, in Matter of Guevara, 24 the BIA affirmed that once the government submits prima facie evidence of deportability, the burden of proof shifts to the respondent to rebut that evidence. Matter of Guevara also held, however, that the government cannot meet its burden of proof solely based on the respondent’s assertion of his Fifth Amendment right to remain silent. In other words, where a noncitizen is subject to the deportability grounds, the government has to have submitted clear and convincing, credible proof of deportability, which the noncitizen then has the burden of rebutting, before the noncitizen’s silence can be used against him. Matter of Guevara; see also Matter of Carillo, 17 I&N Dec. 30 (BIA 1979). Where the basis for a charge of deportability is a criminal conviction, the government still bears the burden of proof but the analysis is somewhat more complex. Basically, if a statute is truly “divisible” in that it lists at least one crime that triggers a deportation ground and a separate crime that does not, then the government has the burden to show that the respondent was convicted of the deportable offense. See discussion of convictions and the categorical approach at Chapter 2, §§ 2.4–2.6.

23 24

16 I&N Dec. 68 (BIA 1977). 20 I&N Dec. 238 (BIA 1991).

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D.

The Burden of Proof in Applications for Discretionary Relief

Burden of proof also comes up in the context of applications for relief from removal. If the government successfully establishes deportability or inadmissibility for a permanent resident, the next step in the removal hearing process is to determine if your client may be eligible for some form of relief from removal, and if so to apply for that relief. The burden of proof for determining eligibility for relief from removal is quite different from the burdens of proof for establishing deportability or inadmissibility, and these should not be confused. Under INA § 240(c)(4)(A): An alien applying for relief or protection from removal has the burden of proof to establish that the alien--(i) satisfies the applicable eligibility requirements; and (ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion. In addition, the applicant must submit information or documentation to support the application, as required by law, regulation, or the instructions in the application form. § 240(c)(4)(B). Where the immigration judge determines that the applicant provide evidence that corroborates otherwise credible testimony, that evidence must be provided unless the applicant shows he or she does not have it and cannot reasonably obtain it. § 240(c)(4)(B). Furthermore, 8 CFR § 1240.8(d) states that a noncitizen: … shall have the burden of establishing that he or she is eligible for any requested benefit or privilege and that it should be granted in the exercise of discretion. If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply. What this means in the context of different applications for relief from removal has been the subject of some controversy, and case law is still being developed on this issue. It is clear that the immigrant must prove certain factual issues, such as the basis for his fear of persecution in an asylum case, or the family relationship in a family visa case. But courts are split as to whether the immigrant must present proof as to the legal question of whether a conviction under a “divisible” statute is a bar to relief, under the categorical approach. A more detailed discussion of divisible statutes and the burden of proof can be found in Chapter 2, § 2.5 on the categorical approach. § 1.5 A.

Evidentiary Considerations; Motions to Suppress

General Rules of Evidence in Removal Proceedings

Although the federal rules of evidence are not applicable to removal proceedings, 25 nevertheless the evidence submitted by the government to establish the inadmissibility or deportability of 25

Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983); Dor v. District Director, INS, 891 F.2d 997, 1003 (2nd Cir. 1989).

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permanent residents must comport with due process. Landon v. Plasencia, above. In other words, it is only admissible if it is probative and its admission would not be fundamentally unfair. Saidane v. INS, 129 F.3d 1063 (9th Cir. 1997). In Saidane, the government made no effort to call an available witness and relied instead on that witness’s damaging hearsay affidavit, and the Ninth Circuit Court of Appeals held that the presentation of hearsay evidence was fundamentally unfair. Similarly, in Cunanan v. INS, 26 the Ninth Circuit held that “the government must make a reasonable effort … to afford the alien a reasonable opportunity to confront the witnesses against him or her. This duty is not satisfied where the government effectively shifts the burden of producing its witness onto the alien.” Cunanan v. INS. In other words, the government may not use an affidavit from an absent witness unless it first establishes that, despite reasonable efforts, it was unable to secure the presence of the witness at the hearing. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674 (9th Cir. 2005). Practitioners should be aware, however, that Form I-213 27 is considered presumptively reliable and admissible in removal proceedings without giving the immigrant the opportunity to crossexamine the document’s author, at least when the noncitizen has put forth no evidence to contradict or impeach the statements in the report. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984); see also Felzerek v. INS, 75 F.3d 112 (2nd Cir. 1996) and Kim v. Holder, 560 F.3d 833 (8th Cir. 2009). Nevertheless, where the admission of the I-213 would be fundamentally unfair, it can be challenged. For example, in Murphy v. INS, 28 a finding of deportability was reversed where the BIA’s determination was based on an inaccurate I-213 for which information was provided by a biased INS informant. In another example, the Fifth Circuit reversed a finding of alien smuggling where the person allegedly smuggled had already been deported, and the government was relying on his hearsay testimony, which was given in Spanish but which INS agents had written down in English. The court found that the respondent was entitled to cross examine the INS agent on his ability to speak Spanish fluently before the statement could be relied upon. Hernandez-Garza v. INS, 882 F.2d 945, 947-48 (5th Cir. 1989). PRACTICE TIP: The information in Form I-213 must show an individualized basis for finding that the person charged is an “alien.” Since ICE agents are often sloppy when preparing I-213s, practitioners should always ask to examine them before pleading to the Notice to Appear. When someone is allegedly removable based on a criminal conviction, only certain documents can be admitted into evidence to prove the conviction. 29 Furthermore, establishing the existence of a conviction, by itself, does not necessarily establish that a noncitizen falls within a particular inadmissibility or deportability ground. This is a very complex issue that is discussed extensively in Chapter 2.

26

856 F.2d 1373 (9th Cir. 1988). Form I-213 is the “Record of Deportable Alien” used by immigration officials as the basis for the Notice to Appear. 28 54 F.3d 605 (9th Cir. 1995). 29 See INA § 240(c)(3)(B). 27

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B.

The Exclusionary Rule in the Immigration Context

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The exclusionary rule provides that evidence seized during an unlawful search cannot constitute proof against the victim of the search, and this prohibition extends to indirect as well as to direct products of such invasions, including verbal evidence. Wong Sun v. United States, 371 U.S. 471, 484 (1963); United States v. Crews, 445 U.S. 463 (1980). However, in INS v. Lopez-Mendoza, above, the Supreme Court held that the exclusionary rule does not apply in civil deportation proceedings except in the case of “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” 468 U.S. 1032, 1050-51 (1984). The Court noted that its conclusion about the lack of application of the exclusionary rule in deportation proceedings might change “if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread.” INS v. Lopez-Mendoza. The BIA came to a similar conclusion in Matter of Toro, 17 I&N Dec. 340 (BIA 1980), finding that a violation of the Fourth Amendment would not necessarily lead to the conclusion that admitting the resulting evidence was fundamentally unfair. However, the Fifth Amendment’s due process clause can be invoked to suppress evidence where it is obtained through egregious misconduct by enforcement officers that interfere with the fundamental fairness of a proceeding. Matter of Garcia, 17 I&N Dec. 319, 321 (BIA 1980). The conduct is egregious when the government agents committed the violation deliberately, or by conduct that a reasonable officer would have known to be in violation of the Constitution. Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994). In Orhorhaghe, an INS officer’s conduct was found egregious because he targeted Orhorhaghe based on his “Nigerian-sounding name,” unlawfully entering his apartment without consent. In Matter of Garcia, the respondent only admitted alienage after INS officers led him to believe that he had no rights and that his deportation was inevitable, in addition to denying him access to counsel. Where the conduct is egregious, the evidence must be suppressed regardless of its probative value. Orhorhaghe, at 502. Other circuits have slightly different standards for egregiousness. See, e.g., Oliva-Ramos v. Attorney General, 694 F.3d 259 (3rd Cir. 2012) Almeida-Amaral v. Gonzales, 461 F.3d 231 (2nd Cir. 2006). Cases in which evidence was suppressed for egregious conduct include Matter of Garcia, above, Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977) [noncitizen admitted alienage after warrantless nighttime arrest at home and 4 hours of detention], Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994) [noncitizen stopped solely based on his Hispanic appearance]; Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) [ICE agents pushed their way into a home after respondent came to the door; no arrest or search warrant, and no consent to enter], and Bong Youn

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Choy v. Barber, 30 279 F.2d 642 (9th Cir. 1960) [admission made after seven hours of threats of deportation or prosecution]. Note that a person’s identity is not something that can be suppressed, even if the government’s conduct has been egregious. See USA v. Toro-Gudino, 376 F.3d 997 (9th Cir. 2004). 31 This is very unfortunate, because ICE can use a person’s name to find independent evidence of alienage apart from any egregious Fourth Amendment violation, such as the filing of a visa petition for that person. If ICE is able to establish alienage based on evidence that is not the result of an illegal search, a suppression motion will not be of any use. However, the Second Circuit in Pretzantzin v. Holder found that independent evidence can be suppressed if it was only obtained on the basis of information gained during an egregious Fourth Amendment violation. In Pretzantzin, ICE conducted a warrantless nighttime raid, and based on the names given at arrest, obtained Pretzantzin’s birth certificate from the Guatemalan embassy. The Court found that although identity cannot be suppressed for the purpose of determining jurisdiction, the government had failed to show that the birth certificates were “independent evidence of alienage.” 736 F.3d 641 (2nd Cir. 2013). C.

Suppression and Termination Based on Regulatory Violations

Practitioners should consider filing suppression motions whenever the government has engaged in unlawful practices. Even where the government’s conduct is not “egregious,” suppression of evidence is still possible under the administrative exclusionary rule where DHS violates regulations promulgated for the noncitizen’s benefit, and the noncitizen suffers prejudice. Matter of Garcia-Flores, 17 I&N Dec. 325, 328 (BIA 1980). See also United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979); United States v. Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999), and Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir. 2008). INA § 287 and 8 CFR § 287 describe the power of immigration officers. Under 8 CFR § 287.3(a), a noncitizen arrested without a warrant must be examined by someone other than the arresting officer, unless no other qualified officer is available and the taking of the noncitizen before another qualified officer would cause unnecessary delay. Hernandez-Guadarrama, above, at 674. 32 Under 8 CFR § 287.3(c), once DHS officers arrest someone and put him or her in proceedings under §§ 238 or 240 of the Act, they must do the following: • • • •

advise the person of the reasons for his or her arrest advise the person of his or her right to counsel provide the person with a list of available free legal services, and advise the person that any statements he or she makes may be used against him or her at the hearing.

30

A government petition for rehearing has been filed in this case. See also U.S. v. Navarro-Diaz, 420 F.3d 581 (6th Cir. 2005) Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2010), Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010), U.S. v. Ortiz-Hernandez, 427 F.3d 567 (9th Cir. 2005); and U.S. v. Garcia-Beltran, 398 F.3d 864 (9th Cir. 2004). 32 Nevertheless, where the noncitizen’s rights were not prejudiced by examination by the arresting officer, the evidence will not be suppressed. Martinez-Camargo v. INS, 292 F.3d 487 (7th Cir. 2002). 31

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In Garcia-Flores, the examining officer failed to notify the noncitizen of the reasons for her arrest and that she had a right to be represented by counsel in violation of 8 CFR § 287.3(c). In analyzing the case, the BIA adopted a 2-prong test for determine whether the deportation proceedings against her should be invalidated: 1. the regulation must serve a purpose of benefit to the alien, and 2. the proceeding will be found unlawful only if the violation prejudiced the alien’s interests. 33 The BIA found that 8 CFR § 287.3(c) was intended to benefit the alien, and remanded the case to the immigration court for a finding on prejudice. Garcia-Flores, above. “Prejudice” in this context, does not mean that someone has to prove they would have won their case but for the violation of the regulation; it only requires a showing that the violation could potentially have affected the outcome of the proceedings. Garcia-Flores, see also United States v. CalderonMedina, above. Even though the BIA did not automatically find prejudice in Garcia-Flores, it noted that “where compliance with the regulation is mandated by the Constitution, prejudice may be presumed,” and that “where an entire procedural framework, designed to insure the fair processing of an action affecting an individual is created but then not followed by an agency, it can be deemed prejudicial.” This is important language to use when challenging the legality of a client’s arrest and the admission of any statements made as a result of that arrest. 34 D.

How to Conduct a Suppression Hearing

If you think that your client’s arrest was illegal, or that the government’s evidence is otherwise tainted by constitutional or regulatory violations, you can file a motion to suppress the illegally obtained evidence. Remember that if you are alleging that evidence should be suppressed, you must show not only that there was an egregious Fourth Amendment violation, but also that your client was prejudiced by the illegality, so that admission of the evidence would violate due process. If you are going to move to suppress the evidence, the first step is that you must deny the allegations in the Notice to Appear or other charging document at a master calendar hearing. Second, you must file a written motion to suppress, supported by a detailed declaration or affidavit from your client describing the circumstances of the arrest. 35 If your client is alleging an illegal arrest, his or her statements must be specific rather than conclusory or based on conjecture. Matter of Wong, 13 I&N Dec. 820 (BIA 1971). In your motion, cite to every fact in your client’s declaration that demonstrates either a constitutional or regulatory violation and explain why it constitutes a violation of your client’s rights. Also explain either why the violation should be presumed to be prejudicial or why it was 33

This test was adapted from United States v. Calderon-Medina, above, at 532. See also Leslie v. Attorney General of the U.S., 611 F.3d 171 (3d Cir. 2020) [finding a due process violation where an immigration judge failed to notify the noncitizen of free legal services available, as required, and holding that the noncitizen was not required to show prejudice]. 35 See further information at Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings (ILRC) at www.ilrc.org/publications/motions-suppress. 34

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in fact prejudicial. Garcia-Flores, above. The respondent has the burden of establishing a prima facie case of illegality. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), citing Matter of Burgos, 15 I&N Dec. 278 (BIA 1975). Once a prima facie case has been established, the burden shifts to the government to show that the manner in which it obtained the evidence was justified. Id. If your motion to exclude evidence is based on the government’s failure to produce a witness, your motion must address how the government failed to make reasonable efforts to produce the witness in person, and how that failure makes the use of the evidence fundamentally unfair, in violation of your client’s due process rights. See Hernandez Guadarrama v. Ashcroft, 36 see also Saidane v. INS, 129 F.3d 1063 (9th Cir. 1997). PRACTICE TIP: To effectively suppress evidence of alienage, you must challenge the allegations in the Notice to Appear, and help your client assert his or her Fifth Amendment right against selfincrimination at the hearing by avoiding any admission of alienage. He or she should disclose only his or her name; no place of birth, and no other details. You must instruct your client to assert his or her Fifth Amendment right against selfincrimination at the hearing. This can be a very intimidating process, and the client must be wellprepared to resist answering questions from the immigration judge or ICE attorney about his or her place of birth at the hearing. Any admissions will be used against your client, including statements made in visa petitions and other affirmative applications to USCIS. 37 For a comprehensive discussion, see Motions to Suppress: Protecting the Rights of Immigrants in Removal Proceedings (2016, www.ilrc.org/publications). § 1.6

When and Whether to Concede Removability

If there is a question about the legality of your client’s arrest, or the fundamental fairness of the government’s evidence against him or her, then obviously you do not want to concede removability, because you may be able to suppress the evidence obtained against your client and get the removal proceedings terminated. However, this is not the only time that you would want to deny the allegations in the NTA. In fact, when you are representing a permanent resident who is being charged with a ground of deportability, you should not concede deportability, or admit any facts that can be contested. The government bears the burden of proving by clear and convincing evidence that your client falls within the alleged ground/s of deportability. This is particularly true when the ground of deportability charged is a criminal conviction. The government has the burden to produce qualifying documents that show that your client was convicted of the alleged offense. In addition, it is the government’s burden to prove that the offense your client was convicted of actually falls within the particular ground of deportation charged. The area of crimes and immigration is technical and fast-changing, and one must not 36

Hernandez Guadarrama v. Ashcroft, 394 F.3d at 681. However, statements made in applications for relief from removal (i.e., defensive applications) cannot be considered a concession of alienage or deportability in any case where someone does not admit alienage or deportability, except for asylum applications filed on or after January 4, 1995. 8 CFR § 1240.11(e). 37

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simply assume that there is no defense. See Chapter 2. In addition, non-criminal grounds of deportability, such as false claims to U.S. citizenship, may be successfully challenged. See Chapter 3. Since the government must prove deportability by clear and convincing evidence, it rarely makes sense to concede deportability, even if your client is eligible for some form of relief from removal. Furthermore, if you make a mistake and concede removability incorrectly, when your client has a defense to the charge, your client may be bound by your error. See, e.g., Perez-Mejia v. Holder, 641 F.3d 1143 (9th Cir. 2011). Therefore, do not concede removability unless you are absolutely certain that your client is deportable and that nothing is to be gained by putting the government to its burden of proof. Example 1: In 2017, ICE issued a Notice to Appear (NTA) alleging that on June 1, 2008, John adjusted status to permanent residence, and on June 1, 2011, John was convicted of felony burglary. The NTA charges that John is deportable under INA § 237(a)(2), because the burglary conviction is a crime involving moral turpitude with a potential sentence of at least a year, and John committed the offense within five years of admission. 38 Should you admit the allegations and concede deportability? No. Regarding the factual allegations, it is possible that the government will not be able to obtain the conviction record for a variety of reasons, which means that proceedings must be ended. But if John were simply to admit the conviction, this would relieve the government of that burden. Regarding the charge of deportability, deciding whether a particular conviction triggers a deportation ground can involve a detailed analysis comparing the elements of the offense to the technical definition of the removal ground, using the categorical approach. Depending on the statute and interpretative case law, it may be that as a matter of law, no conviction under the statute ever is a CIMT. Or, it may be that the burglary statute is “divisible” as a crime involving moral turpitude (it sets out some offenses that involve moral turpitude, and some that do not) and that John’s official record of conviction does not prove of which offense he was convicted. John should not concede that he is deportable, because the government might not be able to meet its burden of proof on this issue. It is especially critical to decline to admit and concede if John is not eligible for any relief from removal. Example 2: Let’s say instead that John has been a permanent resident for 10 years and he is eligible for LPR cancellation of removal. 39 Since he is eligible for relief and has a good case, why not concede deportability and just apply for cancellation? There are at least two good reasons not to do this. First, a grant of cancellation of removal is never guaranteed. Second, if cancellation of removal is granted once, it can never be granted again, meaning that if John is found deportable for some other reason any time in the future, he will be ineligible to apply for cancellation of removal again, no matter how strong his equities are. 40

38

INA § 237(a)(2)(A)(i)(I); see also Chapter 2. See Chapter 4 on LPR Cancellation of Removal. 40 INA § 240A(a); see Chapter 4. 39

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Some practitioners worry that they will irritate the immigration judge by contesting deportability, so that the judge will be less likely to grant discretionary relief. This is especially true if, in the practitioner’s opinion, the government could make its case that the person is deportable. But absent very special circumstances, admitting and conceding still is not recommended. Declining to concede should be the norm where the government has the burden of proof, and we can make it more “normal” by repeatedly doing so in court. In fact, doing so need not be provocative. One may simply say, “Your honor, we would like to put the government to its burden of proof. We decline to admit the allegations in the Notice to Appear or to concede deportability.” Moreover, you and your client will be grateful that you did this if it turns out the government either cannot or simply does not obtain the required proof of deportability, or if you later discover a legal argument or beneficial new case of which you were not aware at the master calendar. For a more comprehensive discussion of strategy, see the ILRC manual Removal Defense (2015, www.ilrc.org). As we have seen in § 1.4, Subsection B.2, even if a permanent resident is charged with a ground of inadmissibility, he or she has the right to due process, meaning that if he or she is to be deprived of LPR status, the government may only do so in a proceeding in which the government is the both moving party and bears the burden of proof. Kwong Hai Chew v. Colding, above. Therefore, regardless of whether your client is charged with an inadmissibility ground as a returning resident or is charged with a deportability ground, it is wise not to concede the charges, and to put the government to its burden of proof, unless doing so would be an exercise in futility, and your client is eligible for some form of relief, or your client is (lawfully) detained and has no relief available to him and just wants to get out of custody and go back home. 41 § 1.7

Analyzing Your Client’s Case

When representing a lawful permanent resident charged with being removable, or any noncitizen client for that matter, it’s a good idea to analyze each case in a logical, consistent way. It’s also a very good idea to consult the Immigration Court Practice Manual, which came into effect July 1, 2008, and is frequently updated, to make sure you are complying with all the procedural requirements necessary. 42 It would be tragic to lose your case because of missing a deadline! In analyzing your client’s case, it may be helpful to ask yourself the following questions: 1. Is the client potentially a U.S. citizen by operation of law, and if so, what do I need in order to prove this? 2. How did the client come to the attention of DHS? 3. Is there any way to challenge the arrest and/or the government’s evidence? (Question your client closely about the circumstances of his or her arrest. If you see a potential challenge to the arrest or evidence, do not concede removability, and consider a motion to suppress).

41 42

See Chapter 9 for detailed information on detention and representing the detained client. Available at: www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm or www.usdoj.gov/eoir/.

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4. What is the client charged with? Is it a ground of deportability or a ground of inadmissibility? 5. Who bears the burden of proof? 6. Can the charges be challenged, and how? (Even if you do not see a way to challenge the charges at this point, put the government to its burden of proof by declining to concede. The government might make an error, or you may discover a defense at a later time.) 7. Is the client eligible for relief from removal if the charges are sustained? 8. What relief, and what are the requirements? 9. What is my client’s burden of proof on eligibility and how can I help her meet it? 10. What is my client’s burden of proof on discretion and how can we show that she merits a favorable exercise of discretion? 11. What evidence do we need to establish eligibility for relief? 12. What kinds of documents would be useful to establish both eligibility and that your client merits the relief sought? 13. Who will potential witnesses be, and what will their testimony offer? 14. What are the client’s equities, and what are his or her weak points? 15. How can I best present the evidence in this case? 16. How can I best refute the government’s position? 17. How can I best prepare my client and witnesses for direct examination? 18. How can I best prepare my client and witnesses for cross-examination? By going through these questions logically and systematically, you are less likely to overlook what may turn out to be an important issue. The contents of this book should help you to answer these questions when representing lawful permanent residents charged with being removable. § 1.8

A Word on Judicial Review

The remedies discussed in this book are for the most part discretionary remedies. Because IIRIRA eliminated judicial review over discretionary determinations, federal courts may not have jurisdiction to review the denial of your case if the BIA denies your case on discretionary grounds. Nevertheless, the REAL ID Act, 43 passed by Congress on May 11, 2005, amended the INA to provide that none of IIRIRA’s restrictions on judicial review can eliminate the courts’ power to review constitutional claims or questions of law. See INA § 242(a)(2)(D); see, e.g., Jean v. Gonzales, 435 F.3d 475 (4th Cir. 2006); Cabrera-Alvarez v. Gonzales, 423 F.3d 1006 (9th Cir. 2005). 43

Sec. 106(a)(1)(A)(iii), Title I, REAL ID Act of 2005, Pub. L. No. 109-13, codified at INA § 242(a)(2)(D).

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“Constitutional claims” refer to claims that your client’s constitutional rights have been violated. See, e.g., Chen v. Dept. of Justice, 471 F.3d 315, (2d Cir. 2006). As noted in § 1.5 above, noncitizens in removal proceedings have a Fifth Amendment right to due process of law. Therefore, where your client has a claim that she has been deprived of a fundamentally fair hearing by judicial misconduct, or by the ineffective assistance of former counsel, this is a constitutional claim that you can raise on appeal. While a full discussion of due process is beyond the scope of this manual, it is important to be aware of the possibility of raising constitutional issues on appeal. Since the REAL ID Act, there has been much litigation seeking to determine what is a “question of law,” and thus reviewable in federal court. 44 A “question of law” generally includes statutory and regulatory interpretation. In some circuits, it also includes the application of law to the facts. See, e.g., Padmore v. Holder, 609 F.3d 62 (2nd Cir. 2010); Chen v. Dept. of Justice, 471 F.3d 315, (2d Cir. 2006). Examples of such questions include fact-finding which is flawed by an error of law, such as where an IJ states that her decision was based on the petitioner’s failure to testify to some pertinent fact when the record of the hearing reveals unambiguously that the petitioner did testify to that fact, or where a discretionary decision is argued to be an abuse of discretion because it was made without rational justification or based on a legally erroneous standard. Chen, 471 F.3d at 330-331. Questions of law also include situations in which the BIA violates its own procedures and regulations. 45 For example, in Padmore v. Holder, the court held “when the BIA engages in factfinding in contravention of 8 CFR § 1003.1(d)(3)(iv), it commits an error of law, which we have jurisdiction to correct.” 609 F.3d at 65. Therefore, do not assume that because the remedy you are seeking is discretionary, you have no recourse in the Court of Appeals. Carefully review the record for evidence of legal error by the IJ or BIA, and/or violations of administrative regulations and procedure, in addition to asserting, where appropriate, constitutional claims in support of your appeal. Of course, always remember to review the decisions of the court of appeal in your jurisdiction to determine how it has ruled on these issues, as the case law is continually evolving.

44

Compare Al Ramahi v. Holder, 725 F.3d 1133 (9th Cir. 2013) (holding that whether a situation constitutes “changed or exceptional circumstances” for purposes of the one-year asylum bar is a question of law and thus reviewable), with Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (holding that the determination of whether a situation is “changed or exception circumstances” is an unreviewable exercise of discretion); and Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (same). 45 See Padmore v. Holder (above) and Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011).

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CHAPTER 2 CRIMINAL GROUNDS OF INADMISSIBILITY AND DEPORTABILITY

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This chapter includes: § 2.1 § 2.2

§ 2.6 § 2.7 § 2.8 § 2.9 § 2.10 § 2.11 § 2.12 § 2.13 § 2.14 § 2.15

PART ONE: INTRODUCTION, OVERVIEW, DEFINITIONS OF CONVICTION AND SENTENCE § 2.1

Introduction and Overview

As an immigration practitioner, you must understand the criminal provisions in immigration law to provide competent representation to lawful permanent residents facing removal under the criminal grounds of inadmissibility and deportability. It’s also becoming increasingly important for you to have some knowledge of criminal law and post-conviction relief. Because the Department of Homeland Security continues to prioritize immigration enforcement against people who have had contact with the criminal justice system, immigration practitioners increasingly encounter immigrants who need this kind of help. This area of the law is extremely complex and fast-changing, and even minor criminal convictions can have terrible immigration consequences. Still, it is possible that your client has some defense arguments that you are unaware of, even if the case looks unwinnable at first blush. In many cases, skilled attorneys have won terrific and surprising victories in this area. If you are unfamiliar with this area of the law, consult with an expert. It is important that you do not concede that the person is removable, at least until you have looked into the criminal record and done the analysis, and you should hold the government to its burden of proof.

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§ 2.3 § 2.4 § 2.5

Introduction and Overview................................................................................. 2-1 Definition of Conviction and How to Avoid a Conviction for Immigration Purposes......................................................................................... 2-7 Definition of Sentence ...................................................................................... 2-15 The Categorical Approach in Three Steps........................................................ 2-18 Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach ................................................................ 2-25 Exceptions to the Categorical Analysis ............................................................ 2-28 Overview of Immigration Consequences of Crimes ........................................ 2-32 Aggravated Felonies ......................................................................................... 2-35 Crimes Involving Moral Turpitude .................................................................. 2-39 Controlled Substance Offenses ........................................................................ 2-48 Domestic Violence, Child Abuse, Prostitution................................................. 2-68 Ground of Inadmissibility for Prostitution and Commercialized Vice............. 2-76 Firearms Offenses ............................................................................................ 2-77 Failure to Register as a Sex Offender Deportation Ground ............................. 2-82 Ground of Inadmissibility for Two or More Convictions with Total Sentences of Five Years ................................................................................... 2-84

Because this area is so complicated, an in-depth discussion is beyond the scope of this manual. This chapter will only cover the key concepts and basic analysis of immigration consequences of crimes as well as the most common criminal grounds of removal to assist you in identifying potential arguments against the removability of your lawful permanent resident client. Resources such as websites, listservs, and publications exclusively on this topic are available. See Subsection C below.

Chapter 2

A.

Conceiving of the Case

Lawful permanent residents who have been convicted of certain crimes, or who have engaged in certain conduct without being convicted, can be removed. Problems with drugs, crimes involving moral turpitude, prostitution, domestic violence, firearms, sex crimes, and a host of other offenses can cause problems. Even very minor offenses can make a person inadmissible or deportable. In addition, conviction of any of a large group of other kinds of offenses, ranging from murder to a small drug sale to theft with a suspended sentence of one year, have been designated as aggravated felonies. Many non-violent misdemeanors qualify as aggravated “felonies.” Aggravated felonies carry the most severe immigration consequences, including mandatory deportation, mandatory detention, and disqualification from many forms of immigration relief, such as cancellation of removal for permanent residents under INA § 240A(a). If there is any chance that your client has been arrested or convicted of a crime, you must find out all the facts and analyze the case. Don’t rely on the client’s memory. Often people who go through the criminal justice system do not understand or are not told what has happened. Also, many people are embarrassed about criminal problems and may understate what really happened. Getting the Facts. To properly analyze the case and determine whether the person is even removable as charged, you need to see the client’s official criminal records. Generally, DHS will have the person’s complete criminal record. DHS will obtain this record by sending the person’s fingerprints to the FBI. It may also have the state rap sheet. You need to have at least as much information as DHS in order to prepare a defense. Three records are most important: 1. Get a copy of the FBI report for yourself. Then you will know what DHS sees. See instructions on FBI fingerprint charts, below. 2. Client’s State Rap Sheet. Each state has a different procedure to obtain criminal records. We need state rap sheets because FBI reports are often wrong or do not contain enough detail. In addition, in some cases DHS obtains them. This document will ensure that you get your client’s entire criminal record in a particular state. Note that when you apply to get a state rap sheet you should not indicate that you are doing so for immigration purposes, but rather to check the accuracy of a record. 3. Get a complete copy of the record from the court where the client was convicted. You may have to call the court clerk first to get the requirements. If the client or a family member lives near the court, give the client or family member a letter signed by him or her requesting the entire file (not merely a summary of a file) and ask them to go get the file. The record will help to determine the immigration consequences of the conviction(s).

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In addition, if you or another attorney are going to try to clear up the criminal record, you will need a copy of the court papers. Doing the Analysis. To analyze a criminal case, you must answer the following questions.

This area of the law is complex. For one thing, the courts are frequently issuing new interpretations of the law in this area. In addition, each state has its own criminal laws and its own legal means of clearing up criminal records. If the client has been convicted in state court, we need to understand exactly how DHS views the laws of that state. Obtaining a Report from the FBI. To get your own copy of the client’s criminal record, send a cover letter which includes a release from the client, a completed FD-258 fingerprint form, and the correct fee payment (at this time the fee is $18.00) in the form of a certified check (no personal checks) or money order made out to the Treasury of the United States, or pay by credit card (fill out the credit card payment form) to FBI CJIS Division: Record Request, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306. 1 There is a space on form FD-258 to indicate the reason for requesting the record. In this space, the applicant should write something like “record check” but should not use the word “immigration.” You should expect that upon receipt by the FBI it will take 8 to 10 weeks to process the request. B.

Forming Defense Goals: Deportability v. Inadmissibility and the Burden of Proof in Removal Proceedings 1. Deportability v. inadmissibility

In order to help your client avoid removal, you first need to know that there are two separate parts of the Immigration and Nationality Act (INA) that may trigger removal based on a criminal offense—the grounds of “deportability” and the grounds of “inadmissibility.” As discussed in Chapter 1, which set of grounds applies to your client, or whether both apply, depends on your client’s particular situation. The criminal deportability grounds are applicable only to individuals who have been “lawfully admitted” to the United States, such as lawful permanent residents (LPR) and nonimmigrant visa holders. As we saw in Chapter 1, while the grounds of inadmissibility generally apply to those who have not been admitted and those applying for adjustment of status, they may also be applied to lawful permanent residents when they travel abroad and return to the United States. Such individuals will be considered “arriving alien LPRs” if they fall within the grounds specified in

1

To check for a sample request and updates in instructions, go to www.fbi.gov/services/cjis/identityhistory-summary-checks or else go to www.fbi.gov and search for “FBI Identification Record Request.”

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1. What ground of inadmissibility or deportability is the client charged with? 2. Can the government really establish that the client is inadmissible or deportable under the ground(s) charged? 3. What potential relief is available? 4. Is the person eligible for the relief sought, or barred from relief for some reason? 5. Can the person get rid of the conviction and clear up his or her record by expungement or other means? Will DHS accept this?

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Chapter 2

INA § 101(a)(13)(C). For example, an LPR client with a drug possession conviction would be considered an “arriving alien” when returning from a trip abroad. Because those applying for adjustment of status are subject to the grounds of inadmissibility, when a lawful permanent resident is found deportable for a crime, but asserts re-adjustment of status as a defense to removal, he or she must overcome any grounds of inadmissibility that may apply. Adjustment of status as a defense to removal allows an LPR who is deportable to re-adjust his or her status, often with a waiver of inadmissibility. By applying for adjustment of status, the LPR becomes subject to the inadmissibility grounds and not the deportability grounds, and is therefore eligible for a waiver of the inadmissibility grounds. 2 To be eligible for adjustment based on a family visa, the LPR must have a visa immediately available; that is, he or she must have an immediate relative in the U.S. to file the visa petition, such as a U.S. citizen spouse. 2. Burden of proof in removal proceedings based on a criminal conviction or activity For lawful permanent residents who are subject to the grounds of deportability, the government bears the burden of proving, by clear and convincing evidence, that the LPR is deportable. INA § 240(c)(3)(A); 8 CFR § 1240.8(a). The Supreme Court has held that the government must prove deportability by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). A discussion of these standards and how they are applied in practice are in Chapter 1, § 1.4(B). Similarly, the government bears the burden of proving by clear and convincing evidence that a lawful permanent resident who returns from a trip abroad is seeking a new admission, by virtue of coming within one of the exceptions listed at INA § 101(a)(13)(C). 3 See Chapter 1, § 1.3. As a general rule, lawful permanent residents who are found deportable for any reason, including a criminal conviction, bear the burden of proving that they are eligible for relief from removal, both statutorily and as a matter of discretion. INA § 240(c)(4)(A). For example, where a lawful permanent resident is found deportable, but wants to assert re-adjustment of status as a defense of removal, he bears the burden of proving that he is “clearly and beyond doubt entitled to be admitted and not inadmissible under section 212.” INA § 240(c)(2). 3. Government evidence needed to meet burden of proof Where the government bears the burden of proof and a criminal conviction is the basis for removal, it must show both the existence of a criminal conviction; and that the conviction triggers a ground of deportability or inadmissibility. a. Showing the existence of a criminal conviction INA § 240(c)(3)(A) provides that, “No decision on deportability shall be valid unless it is based upon reasonable, substantial and probative evidence.” Because most criminal grounds of deportation require a conviction, the government must provide some evidence to prove the existence of a criminal conviction. Under INA § 240(c)(3)(B) the following types of evidence are sufficient to constitute proof of a conviction:

2 3

See Chapter 5, §§ 5.3 and 5.4, and Chapter 8, § 8.3. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

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i. ii. iii. iv. v. vi. vii.

INA § 240(c)(3)(B). The regulation at 8 CFR § 1003.41 contains a similar list, but goes further by adding a catchall category which states, “any other evidence that reasonably indicates the existence of a criminal conviction.” This means that documents outside of those listed in the statute may be considered by the court as proof of existence of a conviction based on the circumstances of the case. The Seventh Circuit, for example, in Rosales-Pineda v. Gonzales 4 relied upon a FBI Identification Record (or rap sheet) as proof of the existence of a criminal conviction even though it is not a listed document in the statute. In that case, the person conceded deportability for two crimes involving moral turpitude, but was applying for a discretionary waiver under INA § 212(h). The government alleged that a drug offense on his rap sheet proved that he was ineligible for a 212(h) waiver, even though he had not been charged with deportability for that offense and he had not conceded deportability based on that offense. The court concluded that the rap sheet reasonably indicated that Rosales had been convicted of a drug related offense because it was corroborated by other evidence in his rap sheet and his own testimony. The court, however, did not find that rap sheets will always constitute sufficient evidence of a conviction to bar discretionary relief. Rather, it found that absent corroborating circumstances a rap sheet would not suffice. Therefore, whenever the government presents documents to prove a conviction which are not included in INA § 240(c)(3)(B), counsel should challenge the sufficiency of that evidence, and should argue that 8 CFR § 1003.41 is “ultra vires.” 5 b. Showing that the conviction triggers a ground of deportability or inadmissibility The more difficult burden for the government to meet is proving that the criminal conviction actually triggers an applicable ground of deportability or inadmissibility. The categorical analysis is a framework that is employed by the courts to determine this, and it is a key defense in arguing that the government has not met its burden. It is discussed extensively in §§ 2.4-2.6 below. By understanding, and ensuring the courts and the government adhere to, the categorical analysis, one can win what might otherwise seem to be an unwinnable case.

4

452 F.3d 627 (7th Cir. 2006). The term “ultra vires” means that a regulation goes beyond the scope of the statute, and is therefore unenforceable.

5

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An official record of judgment and conviction. An official record of plea, verdict, and sentence. A docket entry from court records that indicates the existence of the conviction. Official minutes of a court proceeding or a transcript of a court hearing in which the court takes notice of the existence of the conviction. An abstract of a record of conviction prepared by the court. Any document or record prepared by, or under the direction of, the court in which the conviction was entered that indicates the existence of a conviction. Any document or record attesting to the conviction that is maintained by an official of a state or federal penal institution, which is the basis for that institution’s authority to assume custody of the individual.

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Chapter 2

WARNING! Contest Removability: Don’t Cave In. There are many reasons not to simply admit factual allegations and concede removability. The government may not be able (or willing to do the work required) to meet its burden of proof; you may discover a new defense; or some factor in the client’s life may change, for better or worse. Finally, it is the government’s burden. Even if it appears that the client has a removable conviction and is eligible to apply for relief, do not concede removability! Make the government prove its case! This is especially true in the complex area of immigration and crimes, where what looks like a deportable offense might not be one, once expert analysis is applied. If you are not an immigration attorney with expertise in this area, get assistance from an expert. To read more about when and whether to concede removability generally, see Chapter 1, § 1.6. The government does not have to prove that a criminal conviction exists. In cases where removability is triggered by criminal conduct that does not require a conviction, such as the deportation or inadmissibility ground based on drug abuse, or the inadmissibility ground based on there being a reason to believe the person engaged in drug trafficking. Further, the protections of categorical analysis do not apply (unless perhaps the conviction is the only evidence of the conduct). 6 Counsel should determine what standards apply for conduct-based grounds of removal and should argue that the client does not fall within those grounds. C.

Resources

This area of the law is complex. For one thing, Congress, the Board of Immigration Appeals, and the Circuit Courts of Appeal frequently make significant changes in the law and/or new interpretations of the law. In addition, each state has its own criminal laws; therefore, an individual analysis must be conducted for every state criminal offense. Because the breadth of this subject is so large, a thorough discussion of it is beyond the scope of this manual. If you are new to this area, you should seek guidance in these types of cases. Special books are available. In addition, it is a good idea to consult with a back-up center or immigration attorney with expertise in this area. Publications. The National Immigration Project publishes the comprehensive and encyclopedic national book, Kesselbrenner and Rosenberg, Immigration Law and Crimes (http://legalsolutions.thomsonreuters.com), which focuses on federal offenses and the laws of several states. In addition, some regional or statewide manuals are available. In the Ninth Circuit, the Immigrant Legal Resource Center (ILRC, the group that writes and publishes this book), publishes Defending Immigrants in the Ninth Circuit, an accessible comprehensive guide analyzing the consequences of criminal convictions on immigration. The ILRC also publishes other manuals on a wide variety of immigration law topics. See www.ilrc.org. In some states, experts have created “charts” that present an immigration analysis of commonly charged offenses for each state. For example, the ILRC provides an extensive free chart and short articles on California law at www.ilrc.org/chart. The Immigrant Defense Project publishes an 6

The Ninth Circuit held that where the only evidence of conduct is a conviction and the government has the burden of proof, the categorical approach applies. Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006).

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updated chart on New York law for purchase. See www.immdefense.org. The Washington Defender Association in Seattle provides free materials online as well as free consultation. See www.defensenet.org. Several other state charts are listed at www.nipnlg.org/charts.html.

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Norton Tooby publishes several very helpful national books, which are available for purchase, and updated, on his website at www.nortontooby.com. These include Criminal Defense of Immigrants, Aggravated Felonies, Crimes Involving Moral Turpitude, Safe Havens, and others.

Advocates who join the National immigration Project of the National Lawyers guild can obtain consultations and join very useful listservs; trainings also are presented nationally. Go to www.nipnlg.org. Other Online Resources. The Immigrant Legal Resource Center posts Practice Advisories and other materials at www.ilrc.org/crimes. The National Immigration Project of the National Lawyers Guild offers practice guides and updates on various issues that can affect criminal defendants and other general immigration issues. The Project provides information, Advisories, and a brief bank on immigration and criminal issues. Go to www.nipnlg.org. The Immigrant Defense Project also posts very useful aids and advisories, at www.immdefense.org. These three groups collaborate closely with criminal and immigration law advocates, as the Defending Immigrants Partnership. The website of the law offices of Norton Tooby offers a very valuable collection of archived articles and a free newsletter. Other services, including periodic updates of Mr. Tooby’s books, are offered for a small fee. Go to www.nortontooby.com. The Immigration Advocates’ Network (IAN) is a collaboration of immigration non-profits throughout the country whose goal is to provide on-line immigration resources to pro bono immigration practitioners. Go to www.immigrationadvocates.org. § 2.2

Definition of Conviction and How to Avoid a Conviction for Immigration Purposes

The Big Picture: Most, although not all, deportation grounds based on criminal activity require a conviction. This section discusses how the term “conviction” is defined under immigration law and how to argue that your client does not have a conviction for immigration purposes. This discussion should not be confused with the government’s burden to prove that a criminal conviction exists (discussed above) because the standards are different. Practitioners must also be aware of the removal grounds that are based on mere conduct, even absent a conviction. Engaging in prostitution, being a drug addict or abuser, admitting to certain drug or moral turpitude offenses, being found in civil or criminal court to be in violation of a domestic violence protective order, or, especially, where the government asserts that it has

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Consultations and Trainings. The ILRC maintains a contract service and for a modest fee, ILRC lawyers will provide immigration or criminal defense counsel with expert telephone and email consultations about the immigration consequences of criminal convictions and other immigration issues, including relief from removal. Finally, the ILRC provides immigration and criminal related law seminars and webinars throughout the year. For information about consultations and seminars/webinars go to www.ilrc.org.

“reason to believe” the person ever has been or helped a drug trafficker, can trigger adverse immigration consequences. Conduct such as making a false claim to citizenship, using false documents, and smuggling aliens also can cause inadmissibility and deportability; these are covered in Chapter 3.

Chapter 2

A.

Overview

In almost all cases, once a defendant in adult criminal court enters a plea of guilty or no contest, a conviction has occurred for immigration purposes. This is true even if under state law there is no longer a conviction for some purposes. That is because the INA at § 101(a)(48)(A), contains its own definition of when a conviction has occurred, which applies to evaluate state dispositions regardless of how state law characterizes them. It is important to note that this definition applies to all convictions, no matter when they occurred. 7 Under INA § 101(a)(48)(A) a conviction occurs (1) where there is “a formal judgment of guilt of the alien entered by a court” or, (2) “if adjudication of guilt has been withheld, i.

a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

ii.

the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed. 8

Thus, a guilty plea or a no contest plea, plus imposition of probation, a fine, or jail time is a conviction for immigration purposes, even if the plea is later withdrawn upon successful completion of these requirements and/or the state does not consider them to be a conviction. 9 Because most criminal courts impose requirements or restrictions upon a defendant, the second prong of the definition of conviction, imposition of punishment or restraint, can rarely be avoided. 10 Therefore, you should first look to whether or not there was a plea, or a finding of guilt. If there is no guilty plea, no nolo contendere plea, and no finding of guilt made, there is no conviction. PRACTICE TIP: Immigration counsel should never concede that a program for rehabilitative relief resulted in a conviction without thoroughly researching the law of the state in which the person

7

INA § 101(a)(48)(A) was added to the INA by § 322 of IIRIRA, which states that it “shall apply to convictions and sentences entered before, on, or after the date of the enactment of this Act. [September 30, 1996].” 8 INA § 101(a)(48)(A). 9 Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Murillo-Espinoza v. INS, 261 F.3d 771 (9th Cir. 2001). 10 But see Retuta v. Holder, 591 F.3d 1181 (9th Cir. 2010), a case where the court found there was no conviction under the second prong where a noncitizen pled guilty and the judge deferred entry of judgment, imposed a small fine, and immediately suspended the fine with no conditions attached. The Court ruled that the suspended fine did not amount to the “punishment, penalty or restraint” required to meet the statutory definition of a conviction for immigration purposes. See Retuta, 591 F.3d at 1188. Implicit in this holding was the conclusion that attending the required drug program also was not a “punishment, penalty, or restraint.”

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was convicted, and, if possible, getting records or a transcript to make sure that a plea or finding of guilt actually was made.

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1. Dispositions that are not convictions There are many alternative dispositions that do not meet the definition of conviction under immigration law. These dispositions include: • •

B.

Effect of Rehabilitative Relief Such as Expungements 1. Ninth Circuit exception for certain older, minor drug offenses

“Rehabilitative relief” refers to state laws that will eliminate a conviction for state purposes, not based on a legal error in the proceedings, but based on the fact that the defendant subsequently completed probation or some other rehabilitative requirement. Different states have different names for rehabilitative relief provisions, such as expungement, diversion, set-aside, sealing of records, deferred action, etc. Some state forms of relief eliminate almost all state consequences of the conviction or arrest, while others provide that the conviction still exists for some purposes (for example, it can count as a prior conviction if the person offends again, or can be a basis to forbid possession of a firearm). The same phrase, e.g., “expungement,” can refer to very different laws depending on the state. With a few exceptions, state rehabilitative relief does not eliminate a conviction for immigration purposes. If there has been a plea or finding of guilt and the court has ordered any kind of penalty or restraint, immigration authorities will consider the disposition to be a conviction despite the fact that it has been eliminated under state law by some kind of rehabilitative relief. 11 This is now the rule in all circuits, including the Ninth Circuit, which previously had made an exception for first time simple possession or lesser drug offenses (see further explanation below). It is therefore important to research what types of state dispositions do not require an up-front plea of guilty or do not impose a form of punishment, penalty, or restraint. Without a plea or finding of guilt, and/or imposition of some kind of penalty, a disposition cannot be defined as a conviction under INA § 101(a)(48). 2. Exceptions: Where rehabilitative relief is effective in immigration proceedings First, in immigration proceedings arising with the Ninth Circuit only, any rehabilitative relief will eliminate a conviction for all immigration purposes, if it was a first drug conviction, from on or 11

See Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), and subsequent cases, interpreting INA § 101(a)(48).

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• • • •

an acquittal, a deferred prosecution, verdict, or sentence (where either no plea was taken or finding made, or else absolutely no punishment or restraint was imposed), dismissal under a pre-plea diversion scheme, juvenile delinquency dispositions, infractions in some cases; see below, and judgments vacated for cause or reversed on appeal.

before July 14, 2011, for simple possession or possession of paraphernalia (but not for being under the influence). 12 Second, for purposes of the Deferred Entry for Childhood Arrivals (DACA) program, an “expungement” (interpreted as any rehabilitative relief) eliminates a conviction as an absolute bar to eligibility, although the conviction still may be considered as a negative factor for discretion.13 The Obama Administration initiated the original DACA program on June 15, 2012. At this writing, it is not clear what the Trump Administration will do with the program.

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C.

Pre-Plea (or “Pre-Trial”) Dispositions

Because the definition of a conviction under INA § 101(a)(48)(A) requires a plea or finding of guilt, state rehabilitative statutes that do not require a plea or finding of guilt are not considered convictions for immigration purposes. Therefore, it is important to know what types of state dispositions do not require an up-front plea. For example, before January 1, 1997, a disposition under the drug diversion program then in effect in California 14 did not require a guilty plea or finding of guilt. Therefore, those who completed diversion for a drug offense in California before January 1, 1997 do not have convictions for immigration purposes. 15 A disposition in a drug court that does not require a plea is not a conviction for immigration purposes. Note, however, that a drug court disposition may create other immigration problems if the person is required to formally admit that she is a drug addict or abuser, which are independent grounds of inadmissibility and deportability. See INA §§ 212(a)(1)(A)(iv) and 237(a)(2)(B)(ii). D.

Juvenile Delinquency Dispositions

Court findings in juvenile delinquency proceedings are not convictions for immigration purposes, regardless of the nature of the offense, because these are civil proceedings. 16 If the record of proceedings indicates that proceedings were in juvenile court, counsel can be assured that there is no conviction. Where there is an adult conviction for certain offenses that were committed while the person was a minor, immigration counsel may be able to argue that it does not have an immigration effect if the charge would not have been permitted to be brought in adult court in federal proceedings under the Federal Juvenile Delinquency Act (FJDA). 17 The Board of Immigration Appeals, in Matter of Devison, held that the youthful offender determination was not a conviction for 12

The person also must not have violated probation or had a conviction or prior pre-trial diversion program. See Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), prospectively overturning Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. July 14, 2000), and see ILRC Practice Advisory at www.ilrc.org/sites/default/files/resources/practice_advisory_lujan_and_nunez_10.11.pdf. 13 See DACA Frequently Asked Questions at www.uscis.gov/humanitarian/consideration-deferred-actionchildhood-arrivals-daca, and see ILRC, DACA: The Essential Legal Guide at www.ilrc.org/daca-manual. 14 Former Calif. Penal Code § 1000. 15 De Jesus Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007). 16 Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981); Matter of C.M., 5 I&N Dec. 327 (BIA 1953). The exceptions are that certain delinquency dispositions may form a bar to applying for Family Unity or to petitioning for a relative. 17 18 USC §§ 5031-5042 (1994 & Supp. II 1996).

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immigration purposes because it was sufficiently analogous to a determination of juvenile delinquency. 18 In Devison, the Board considered a New York law which provides that the cases of certain youth who are prosecuted in adult criminal court and found guilty of committing a crime while under the age of 19 may be handled in adult court as “youthful offender” adjudications. The Board held that the youthful offender determination was not a conviction for immigration purposes because it was sufficiently analogous to a determination of juvenile delinquency under the FJDA.

Although any similar disposition to the New York youthful offender disposition at issue in Matter of Devison and any transfer to adult court that would not have been allowed to occur under the FJDA should not be considered a conviction for immigration purposes, the First, Sixth, and Ninth Circuits have not applied the FJDA standard to state convictions. For example, in Garcia v. INS, the First Circuit rejected the application of the FJDA standard to a Rhode Island conviction, holding that a state court conviction as an adult for an offense committed when petitioner was nearly 18 years old constituted a conviction for purposes of immigration law, and the fact that he might have been treated as a juvenile under federal law was not a violation of his right to equal protection. 20 See also Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005) (holding the Sixth Circuit held that a noncitizen designated as a “youthful trainee” under Mich. Comp. Laws § 762.11(1) had a conviction as that term was defined in INA § 101(a)(48)(A)), and Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007) (holding that a 16-year-old’s state court conviction as an adult for voluntary manslaughter constituted a conviction for purposes of immigration law). It is unclear whether counsel in those cases raised the argument that petitioner would not have been transferred to adult proceedings under the FJDA for the offense. Immigration practitioners should attempt to challenge these decisions for failing to follow uniform national definitions of terms in immigration statutes. The failure to follow a uniform national definition leads to unfair results, since the outcome of a removal case will depend upon the many variations in criminal laws among the 50 states. Increasingly, the U.S. Supreme Court and circuit courts have enacted uniform national definitions of terms in immigration statutes

18

Matter of Devison, 22 I&N Dec. 1362, 1366 (BIA 2000)(en banc). Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981)(since the juvenile’s foreign crime could not be transferred to adult court under the FJDA, it will not be considered a conviction for immigration purposes regardless of how the foreign country treated it); Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981) (foreign offense which might or might not be transferred to adult court under FJDA must be treated as adult conviction by foreign jurisdiction in order to be held a conviction for immigration purposes). 20 239 F.3d 409 (1st Cir. 2001). 19

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In evaluating foreign convictions, the Board has held that a juvenile who is transferred to adult proceedings and suffers an adult conviction will be held to have suffered a “conviction” for immigration purposes only if he or she could have been transferred to adult court under the FJDA. 19 Advocates should argue that this federal test should also be applied to evaluate adult convictions of minors within the United States.

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based on federal law. 21 It appears that none of the courts in the cases cited above addressed this question. Practitioners should therefore argue that following varying state determinations in cases involving juveniles is a violation of the equal protection clause because it will lead to disparities in the treatment of similarly situated juveniles under immigration law. Immigration counsel should argue that a noncitizen defendant should get the same treatment he or she could have received under federal law pursuant to the FJDA. Juvenile court proceedings still can create problems for juvenile immigrants under the so-called “conduct grounds.” A juvenile delinquency disposition that establishes that the youth has engaged in prostitution, is or has been a drug addict or abuser, or has been or helped a drug trafficker, is likely to cause immigration problems. 22 The inadmissibility ground based on the government having “reason to believe” the person was or helped a drug trafficker under INA § 212(a)(2)(C) is particularly onerous. This ground is discussed below in § 2.10 on Controlled Substances. 23 E.

Infractions

Under some state and municipal laws, certain minor offenses—sometimes called infractions or offenses—are handled in unconventional criminal proceedings, which do not require the usual constitutional protections of a criminal trial such as access to counsel, the right to a jury trial, or the requirement that the prosecutor prove guilt beyond a reasonable doubt. In some cases, these dispositions are held not to be “convictions” for immigration purposes. The BIA held that a violation of a Kansas municipal ordinance is a conviction for immigration purposes, despite the lack of appointed defense counsel or right to a jury trial in those proceedings. The BIA reaffirmed that to be a conviction the prosecution must be required to prove guilt beyond a reasonable doubt. Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012) clarifying Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004). In Matter of Eslamizar, the BIA held that an Oregon violation did not constitute a conviction for immigration purposes because the criminal proceedings lacked the usual constitutional protections such as access to counsel, right to a jury trial, and the requirement that the prosecution prove guilty beyond a reasonable doubt. In Matter of Cuellar, the BIA reaffirmed that an infraction or other non-misdemeanor that only requires the prosecution prove guilt by a preponderance of the evidence is not a conviction. 25 I&N Dec. at 853. It stated that in order to be a conviction, the proceedings need not provide defendant with an absolute right to counsel, but need only provide indigent defendants with appointed defense counsel if there is a possibility of imprisonment. This is the minimum constitutionally required standard and criminal proceedings will generally satisfy this requirement. The BIA also held that the right to a jury trial is not required at the initial proceeding that resulted in the conviction as long as a jury trial may be provided at a later stage, for example on appeal to a higher court. Id. at 854.

21 Lopez v. Gonzales, 127 S.Ct. 625 (2006) (holding that for the “federal analogue” drug offense analysis, the standard is whether the offense would be classed as a felony under federal law, and not the convicting jurisdiction); Cazarez-Gutierrez v. INS, 356 F.3d 1015 (same). 22 See INA §§ 212(a)(2)(D), 212(a)(1)(A)(iv), 237(a)(2)(B)(ii) and 212(a)(2)(C). 23 Go to www.ilrc.org/immigrant-youth for additional information on immigration issues affecting children and youth.

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Consider these factors in arguing that a disposition is not a conviction for immigration purposes. The BIA has held that an infraction or other non-misdemeanor offense would not constitute a conviction for immigration purposes if plea was entered in proceedings that lack the following constitutional protections: The prosecution’s burden of proof is lower than beyond a reasonable doubt. In Matter of Eslamizar, the BIA found that an Oregon violation was not a conviction because the prosecution only needed to prove guilty by a preponderance of the evidence.

•

The defendant does not have a right to a jury trial at the trial or appeal stage. In Matter of Cuellar, 25 I&N Dec. 850 (BIA 2012), the immigrant argued that a conviction under a Kansas municipal ordinance was not a conviction because he was not entitled to a jury trial. The BIA rejected this argument noting that the defendant had a right to appeal the conviction to a higher court where he would be entitled to jury trial. Without a right to a jury trial at some stage in the proceeding, the offense should not qualify as conviction.

The above factors were central to the BIA’s determination of whether the offense qualified as a conviction under INA § 101(a)(48)(A), 8 USC § 1101(a)(48)(A). The BIA stated that the offense constitutes a conviction “so long as it was entered in a ‘genuine criminal proceeding,’ that is, a proceeding that was ‘criminal in nature under the governing laws of the prosecuting jurisdiction.’” Matter of Rivera-Valencia, 24 I&N Dec. 484, 486-87 (BIA 2008) (quoting Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004)). In addition to the above constitutional factors, the BIA has relied on other factors to determine if the plea was entered in “genuine criminal proceedings.” The following are factors against holding the disposition to be a conviction: •

The infraction cannot be used as a basis to enhance the sentence for a subsequent misdemeanor or felony offense. Cuellar, 25 I&N Dec. at 853. In Cuellar, the BIA emphasized that the Kansas criminal code allowed courts to consider prior municipal ordinance violations in calculating the sentence for subsequent convictions. Id.; see also State v. Vega-Fuentes, 264 Kan. 10, 14-15 (Kan. 1998).

•

The infraction is only punishable by a fine or jail of six months or less. In Eslamizar, the BIA noted that these offenses would be categorized as “petty offenses” for which there is no right to a jury trial. See Eslamizar, 23 I&N Dec. at 684 n. 4.

•

The local, state, or federal law explicitly states that a plea to the infraction imposes no disability or legal disadvantage or that prosecution of such conduct is not prosecution of a crime. Id. at 687.

If a misdemeanor/infraction is prosecuted as a misdemeanor, with the attendant constitutional protections, and only reduced to an infraction following conviction, it is likely that the disposition will be found to be a conviction for immigration purposes.

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F.

Appeal and Issues of Finality

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Before the definition of a conviction in INA § 101(a)(48) was enacted in 1996, both the Board of Immigration Appeals and the Supreme Court had required that a conviction be final before it could be used to support a conviction-based ground of deportability. 24 Some courts have held that the enactment of § 101(a)(48) subverted the requirement of finality in immigration proceedings. A key question is, under § 101(a)(48), must the right to file a direct appeal of a criminal conviction be exhausted or waived, in order for the conviction to be sufficiently “final” for immigration purposes? In other words, is a conviction on direct appeal of right a “conviction” for immigration purposes? To date the BIA has declined to publish a decision on the issue. In 2009, it held that a conviction that was the subject of late appeal, filed with court permission, was a conviction for immigration purposes, due to the lateness of the filing. It reserved decision as to the effect of § 101(a)(48) on finality in general. Matter of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). 25 In 2015 the Board held that removal proceedings may be delayed and administratively closed, where warranted, pending the adjudication of a direct appeal of a criminal conviction. Matter of Montiel, 26 I&N Dec. 555 (BIA 2015). In Montiel the Board again declined to reach the issue of the effect of § 101(a)(48) on finality. It noted that the case arose in the Ninth Circuit, which had interpreted § 101(a)(48) to mean that a conviction on direct appeal remained a conviction for immigration purposes, and it noted that courts are split on the issue of finality. Id. at 558 and n. 5. Federal courts are split. The First, Fifth, Seventh, Ninth, and Tenth Circuit Courts of Appeals have held that INA § 101(a)(48) erodes the finality requirement in some way, and upheld the various dispositions at issue as convictions. 26 In 2014, the Third Circuit held that a judgement on direct appeal of right is not a conviction for immigration purposes. 27 In its examination of prior decisions, the court pointed out that the decisions by the First, Fifth, and Seventh Circuits addressed finality outside of the context of a direct appeal of right. 28 If a conviction is on a direct appeal of right, counsel should argue that it is not sufficiently final for immigration purposes, and in the alternative should argue under Matter of Montiel that

24

Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576 (1955) (holding that an “on file” system in Massachusetts did not constitute sufficient finality to be a basis for deportation under the Act); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). See also 8 CFR § 242.2(b). 25 In an unpublished decision, the Second Circuit remanded that case to the BIA, on the grounds that an appeal filed late with permission is the same as other appeal Cardenas Abreu v. Holder, 378 Fed. Appx. 59 (2nd Cir. 2010). 26 Griffiths v. INS, 243 F.3d 45 (1st Cir. 2001); Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir. 2007); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004); Planes v. Holder, 652 F.3d 991, 995-96 (9th Cir. 2011) pet. for reh’g den., 686 F.3d 1033 (9th Cir. 2012); Waugh v. Holder, 642 F.3d 1279, 1284 (10th Cir. 2011); Puello v. Bureau of Citizenship and Immigration Services, 511 F.3d 324, 332 (2nd Cir. 2007). For further discussion of appeals and finality, see Kesselbrenner and Rosenberg, Immigration Law and Crimes, § 2.5 (http://legalsolutions.thomsonreuters.com). 27 Orabi v. AG of the United States, 738 F.3d 535 (3rd Cir. 2014). 28 See Orabi, 738 F.3d at 540-444.

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circumstances warrant that removal proceedings be administratively closed, to await the outcome of the criminal appeal. G.

Vacation of Judgment for Cause

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Immigration authorities will not question the validity of a state order vacating a conviction for cause, but will give “full faith and credit” to the state court.29 When a court acting within its jurisdiction vacates a judgment of conviction for cause, the conviction no longer constitutes a valid basis for deportation or exclusion. 30

§ 2.3

Definition of Sentence

Many removal grounds are triggered only when a certain sentence requirement is met. These sentence requirements can vary from the sentence imposed, actual sentence served, or potential sentence of the offense. If counsel can argue that the sentence requirement has not been met, then the person may not be removable as charged. It is important, therefore, that counsel analyze the sentence in the criminal case at hand and compare it with the relevant sentencing provision in the immigration law before conceding removability. A.

Definition of “Sentence Imposed” for Immigration Purposes

Usually the immigration ground depends on the sentence imposed (“term of imprisonment”). The immigration statute defines “sentence imposed” as the “period of incarceration or confinement ordered by a court of law, regardless of suspension of the imposition or execution of that imprisonment in whole or in part.” INA § 101(a)(48)(B). This means that any amount of time that a judge orders the person to spend in jail or prison as a result of a conviction counts as a “sentence imposed,” even if the person never actually spends a single day in jail. Sometimes a criminal court judge will “suspend imposition” of a sentence, meaning that the sentence, though ordered, is not imposed. The judge instead will just order the person to go to jail as 29

Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005); Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). 31 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). 32 The U.S. Supreme Court held that noncitizen defendants have a Sixth Amendment right to be affirmatively and competently advised of the immigration consequences of their criminal disposition(s). Criminal defense counsel’s failure to do so will be held ineffective assistance of counsel sufficient to vacate the conviction, if prejudice is shown. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). 30

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The conviction must have been vacated for cause, not merely for hardship or rehabilitation, however. In Matter of Pickering, the BIA held that a conviction is not eliminated for immigration purposes if the court vacated it for reasons “solely related to rehabilitation or immigration hardships, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings.” 31 Therefore, an order vacating a conviction based solely on humanitarian or rehabilitative factors will not eliminate the conviction for immigration purposes. However, an order that cites legal or procedural errors, such as ineffective assistance of counsel due to defense counsel’s failure to advise the client of the immigration consequences of the conviction, 32 will eliminate the conviction for immigration purposes.

a condition of probation. While the time on probation does not count towards the sentence, the jail time imposed as a condition of probation will count as the “sentenced imposed” for immigration purposes. Sometimes a judge imposes a sentence and “suspends execution,” meaning that he does not make the person serve the entire time. In this case, the entire sentence the judge imposed will count as the “sentence imposed.” If no jail time is mentioned, then there is no sentence.

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Example: Bernardo was convicted of misdemeanor theft, his first offense. He was given three years of probation. Imposition of sentence was suspended and he was ordered to spend 100 days in jail as a condition of probation. Bernardo has a “sentence imposed” of 100 days. (Notice that the three years of probation has no effect.) Example: Josephine was convicted of misdemeanor theft, her first offense. She was sentenced to a year in jail, but the judge suspended execution of all of it and she did not have to go to jail at all. However, for immigration purposes Josephine had a “sentence imposed” of one year, which makes her theft offense an aggravated felony. 33 Some additional points to consider when dealing with the definition of the term “sentence” in INA § 101(a)(48)(B) include: •

This language refers to the sentence actually imposed, not to the potential sentence.

•

It does not include the period of probation or parole. Counsel should be sure to distinguish this from a sentence of imprisonment. However, under the law of a few states, such as Georgia and Texas, the term probation sometimes is used to refer to a sentence. Persons dealing with convictions and probation from those states should consult an expert to determine what sentence actually was imposed.

•

The Supreme Court held that time imposed by recidivist sentence enhancements (e.g., petty theft with a prior) will count towards the length of sentence imposed. United States v. Rodriquez, 553 U.S. 377 (2008), overruling in part United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc).

•

The time served after a probation or parole violation is included as part of the “sentence imposed.” 34 Example: The judge suspends imposition of sentence, orders three years’ probation, and requires jail time of four months as a condition of probation. The defendant is released from jail after three months with time off for good behavior. For immigration purposes the “sentence imposed” was four months. However, if this defendant then violates

33

See INA § 101(a)(43)(G). Matter of Perez-Ramirez, 25 I&N Dec. 203, 205 (BIA 2010) (“the modification of the respondent’s sentence following his probation violation, which resulted in a sentence to confinement of 365 days, must be considered to be part of the penalty imposed against him for the original crime giving rise to immigration proceedings, rather than punishment for a separate offense”); United States v. Jimenez, 258 F.3d 1120 (9th Cir. 2001) (a defendant sentenced to 365 days probation who then violated the terms of his probation and was sentenced to two years imprisonment had been sentenced to more than one year for purposes of the definition of an aggravated felony). 34

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probation and an additional 10 months is added to the sentence, she will have a total “sentence imposed” of 14 months. B.

Offenses That Are Aggravated Felonies Based on a One-Year Sentence Imposed

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The following offenses are aggravated felonies if and only if a term of imprisonment of at least one year was imposed. A sentence of 364 days or less will prevent them from being aggravated felonies. 35 Crime of violence, defined under 18 USC § 16 Theft (including receipt of stolen property) Burglary Bribery of a witness Commercial bribery Counterfeiting Forgery Trafficking in vehicles which have had their VIN numbers altered Obstruction of justice Perjury, subornation of perjury Falsifying documents or trafficking in false documents (with an exception for a first offense for which the alien affirmatively shows that the offense was committed for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent)

Even a misdemeanor offense with a suspended one-year sentence imposed may be an aggravated felony. Note that many other offenses are aggravated felonies regardless of the sentence imposed, such as offenses relating to drug trafficking, firearms, sexual abuse of a minor, or rape. For example, a conviction of possession for sale of a controlled substance is an aggravated felony regardless of the sentence. C.

Other Sentence Provisions in the INA 1. Inadmissible for two or more convictions resulting in sentences of five years or more

A noncitizen is inadmissible if she has been convicted of two or more offenses for which the aggregate “sentences to confinement actually imposed” equaled five or more years. INA § 212(a)(2)(B). Any two valid convictions will trigger the statute; whether they arose from a single scheme of misconduct or involved moral turpitude is not relevant. See § 2.15, below. A qualifying applicant may apply to waive this ground. See INA § 212(h), discussed in Chapter 6. 2. The petty offense exception to the moral turpitude inadmissibility ground The above definition of “sentence imposed” also applies to persons attempting to qualify for the petty offense exception to the moral turpitude ground of inadmissibility, which holds that a person who has committed only one crime involving moral turpitude is not inadmissible if the

35

See INA § 101(a)(43), subsections (F), (G), (P), (R), and (S).

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• • • • • • • • • • •

offense has a maximum possible sentence of one year or less, and the sentence actually imposed was six months or less. INA § 212(a)(2)(B). 3. Deportable for one conviction of a crime involving moral turpitude

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A noncitizen is deportable for one conviction of a moral turpitude offense committed within five years of admission if the offense has a maximum possible sentence of one year or more. INA § 237(a)(2)(A). 36 This applies in removal proceedings that were initiated on or after April 24, 1996. 37 4. Bar to withholding of removal 38 for one or more aggravated felony convictions where an aggregate five-year sentence was imposed Withholding of removal, sometimes referred to as restriction on removal, is a form of relief similar to political asylum. 39 A noncitizen who has been sentenced to an aggregate term of imprisonment of five years or more for one or more aggravated felony convictions is barred from eligibility for withholding. 40 5. Bar to the former § 212(c) relief for those who served five years of imprisonment for one or more aggravated felonies A permanent resident is barred from applying in removal proceedings for the former § 212(c) relief if he has actually served five years in prison for one or more aggravated felony convictions, based on a plea taken on or after November 29, 1990. See Chapter 5. PART TWO: ANALYZING CRIMINAL CONVICTIONS -- THE CATEGORICAL ANALYSIS: DIVISIBLE STATUTES AND THE RECORD OF CONVICTION § 2.4

The Categorical Approach in Three Steps

Once the government has proved the existence of the noncitizen’s conviction, the removability inquiry may have only just begun. The categorical analysis controls the next question, which is whether the offense of conviction actually triggers the ground of removal alleged in the NTA. This concerns whether the conviction is of an offense that is an aggravated felony, crime involving moral turpitude, firearm offense, offense relating to a controlled substance, or other ground of deportability or inadmissibility. With a few exceptions (see § 2.6), immigration authorities must use the “categorical approach” to determine whether a criminal conviction triggers a ground of removal.

36

See also former INA § 241(a)(2)(A), as amended by AEDPA 436(a). Effective date provided under AEDPA § 436(b). 37 Noncitizens whose deportation cases were initiated before April 24, 1996 are subject to the former deportation ground, which requires that a sentence of one year had to have been imposed. See former INA § 241(a)(2)(A)(i), in effect before passage of AEDPA. 38 Formerly called withholding of deportation. 39 See INA § 241(b)(3), replacing former INA § 243(h), and Chapter 8 of this manual. 40 INA § 241(b)(3)(B).

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Competent use of the categorical approach may be the single most important defense strategy available to immigrants convicted of crimes. This is especially true now that the Supreme Court has addressed how the analysis must be applied, in three recent decisions: Mathis v. United States, 136 S.Ct. 2243 (2016); Descamps v. United States, 133 S. Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). In Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) (“Chairez III”) 41 the BIA adopted the Supreme Court’s analysis.

This section provides a step-by-step guide on how to use the categorical approach under recent Supreme Court precedent. It is more of a how-to guide than an analysis of the reasoning and full implications of the key decisions. For an in-depth discussion of Moncrieffe, Descamps and Mathis, as well as related opinions such as Mellouli v. Lynch, 135 S.Ct. 1980 (2015) and Johnson v. United States, 135 S.Ct. 2551 (2015), see Practice Advisories on these opinions that are available online. 42 As always, how one uses new arguments depends on where one is in proceedings. Advocates representing people in removal proceedings can advance any good argument. Advocates considering whether to file an affirmative application, where this would expose a potentially 41

The BIA’s 2016 Chairez decision adopts the Supreme Court’s reasoning in Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013) and clarifies the earlier BIA decisions Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015). The Attorney General had stayed the earlier Chairez opinions while awaiting the Supreme Court’s decision in Mathis. After Mathis was published, the Attorney General lifted the stay and remanded Chairez to the Board to decide in accord with Mathis. See Matter of Chairez and Sama, 26 I&N Dec. 796 (AG 2016), lifting the stay imposed at 26 I&N Dec. 686 (AG 2015). The Board then published the current decision which is cited in the text, Matter of Chairez, 26 I&N Dec. 819 (BIA Sept. 28, 2016). 42 At www.nipnlg.org/publications.htm, scroll to see “How Johnson v. United States May Help Your Crime of Violence Case” (by the National Immigration Project of the National Lawyers Guild (NIP/NLG)); (July 6, 2015); Mellouli v. Lynch: Further Support for a Strict Categorical Approach for Determining Removability under Drug Deportation and Other Conviction-Based Removal Grounds” by the NIP/NLG and the Immigrant Defense Project (IDP) (June 8, 2015); “Matter of Chairez-Castrejon: BIA Applies Moncrieffe and Descamps to Modify and Clarify Its Views on Proper Application of the Categorical Approach” by NIP/NLG and IDP (July 31, 2014); “Descamps v. United States and the Modified Categorical Advisory Approach” by NIPNLG and IDP (July 17, 2013) (hereafter “Descamps Advisory”); and “Moncrieffe v. Holder: Implications for Drug Charges and Other Issues Involving the Categorical Approach” by NIP/NLG, IDP, and the Legal Action Center of the American Immigration Counsel (May 2013) (hereafter Moncrieffe Advisory). At www.ilrc.org/crimes scroll to see “Some Felonies Should No Longer Be “Crimes of Violence” for Immigration Purposes under Johnson v. United States” (August 2015); “Great Ninth Circuit Case On Divisible Statutes; California Burglary Never Is Attempted Theft (Rendon v. Holder) August 2014); “Moncrieffe and Olivas-Motta: Fourteen Crim/Imm Defenses In The Ninth Circuit” by ILRC (May 2013) (hereafter “Fourteen Crim/Imm Defenses”).

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Mathis, Descamps, and Moncrieffe effectively overrule a lot of past precedent, to the benefit of immigrants. In fact, if you represent an immigrant convicted of a crime and do not understand how to use the categorical approach in light of these decisions, you may be doing your client a terrible disservice. Relying on older precedent, you may decide that the conviction has adverse immigration consequences, when under these cases it should have no consequences or at least less serious ones.

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removable person to authorities, must be somewhat more conservative and should consider the chances that the argument might be rejected while the application is pending. Criminal defenders always try to act conservatively by pleading specifically to one of the “good” immigration offenses within a criminal statute, even if this ought not to be necessary under the categorical approach.

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A.

Overview of the Categorical Approach

Let’s say that a client comes in who has an Iowa conviction for burglary for which she was sentenced to 16 months. You know that a burglary conviction with a sentence of a year or more is an aggravated felony under INA § 101(a)(43)(G). How do you know if her conviction is an aggravated felony? Is every offense that a state labels “burglary” an aggravated felony if a year or more is imposed? No, it isn’t, and this is the core of the categorical approach. The title of the offense—burglary, theft, assault—does not control. Instead, we undertake a detailed legal analysis, based on the minimum conduct to violate the criminal statute. This approach can take up to three steps. In Step 1 of the categorical approach, we compare the “generic” definition in the removal ground with the elements of the criminal statute. Every criminal law term that appears in removal grounds (e.g., burglary, crime involving moral turpitude) must have its own technical, federal definition, referred to as the “generic” definition. We will compare this generic definition to the state (or federal or other) statute our client was convicted of. Here we do not look at what the client actually did, or pled guilty to doing. Instead, we identify the minimum possible conduct that has a reasonable probability of being prosecuted under the criminal statute, and compare that conduct to the generic definition. If the elements match up sufficiently, the removal ground applies and the immigrant loses. In that case, anyone who ever is convicted of that offense will come within the removal ground. But if the elements don’t match sufficiently, the statute is “overbroad.” There is no categorical match. If there is no categorical match, we breathe a sigh of relief. Our client will win as long as the statute is not “divisible.” We now move to Step 2 to determine whether the statute is divisible. In Descamps and Mathis, the Supreme Court affirmed that a statute must meet a strict standard to be “truly” divisible. In many prior decisions, federal courts and the Board of Immigration Appeals have not correctly applied this test. Because of this, a lot of published precedent on specific offenses must be considered overruled, in favor of the immigrant. This is one reason that it is important to have a basic understanding of the categorical approach: we can’t rely on (bad) past precedent. In many cases, the criminal statute will not be truly divisible under the Supreme Court’s standard. In that case—where the statute is overbroad (not a categorical match per Step One) and indivisible (not a divisible statute per Step Two)—the client wins big. No conviction under the statute ever triggers the removal ground, for any purpose: deportability, inadmissibility, or eligibility for relief. It does not matter to what facts the person pled guilty; no one convicted under the statute, under any circumstances, comes within the removal ground. If instead the statute is truly divisible, we go on to Step 3, the “modified” categorical approach. Here an immigration judge or officer may look at a limited set of documents from the client’s

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criminal record, called the reviewable record of conviction, to see if it conclusively shows of which statutory elements he or she was convicted. If the record identifies those elements, the adjudicator performs the categorical analysis on those.

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Now that we’ve described the whole process once, we will go over it again in a more formal manner discussing the three questions: Is there a categorical match? If not, is the statute divisible? If so, does the record of conviction identify the specific crime? B.

Step 1: Is There a Categorical Match?

To determine whether a prior conviction is for generic burglary (or other listed crime), courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) 1. Identify the “generic” definition of the crime listed in the removal ground43 The grounds of inadmissibility and deportability (which include the definition of an aggravated felony) contain dozens of criminal law terms, e.g., “crime involving moral turpitude,” “crime of child abuse,” “controlled substance,” “crime of violence,” “burglary,” “firearm,” “sexual abuse of a minor,” etc. Each of these terms must have a technical, federal definition, referred to as the “generic” definition. Our first research task is to identify the generic definition of the crime that appears in the removal ground. To define a crime, we identify its elements. “‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248. To illustrate the categorical approach and its use of elements, let’s consider whether an Iowa burglary conviction can be an aggravated felony as burglary. First, we must identify the federal generic definition of “burglary.” Example: The definition of aggravated felony includes conviction of “burglary” if a sentence of a year or more is imposed. INA § 101(a)(43)(G). How is “burglary” defined here? The Supreme Court held that generic burglary contains these elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court found that the term “building or other structure” does not include a vehicle. Taylor v. United States, 495 U.S. 575, 598 (1990) (emphasis added) How do we identify the generic definition? First, look at the applicable removal ground and check for references to federal statutes or specific information. Some removal grounds refer directly to a 43

See, e.g., Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013).

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To determine if there is a categorical match we determine: (a) What are the elements of the crime that is listed in the applicable removal ground (the “generic” definition)? (b) What are the elements of the offense in the criminal statute of which the client was convicted (the minimum conduct required to violate that statute)? and (c) Does the removal ground definition match every element of the offense in the criminal statute? As the Supreme Court summarized:

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federal statute, for example for the definition of a “crime of violence” at 18 USC § 16. Second, consider all of the general law terms, e.g., theft, attempt, child abuse. In most cases, courts create these definitions in cases. Secondary sources can save time in this inquiry. Norton Tooby’s books such as Aggravated Felonies, Crimes Involving Moral Turpitude, and Safe Havens summarize all decisions on these topics nationally, and the books are kept updated online. See www.nortontooby.com. See also national books such as Immigration Law and Crimes at www.thomsonreuters.com. Circuit-wide books, such as Defending Immigrants in the Ninth Circuit (www.ilrc.org), go into great detail, and some Circuit Courts of Appeals publish outlines on the topic on their websites; see especially the Ninth Circuit’s outline. Some states have statespecific books, 44 online charts, 45 and articles. But secondary sources are the starting, not ending point. Do further research to see if there are new developments. Advocates litigate what should be the best generic definition. Note that federal courts and the BIA both create generic definitions. If these definitions conflict, federal courts have disagreed as to if or when they must give Chevron 46 deference to the BIA’s generic definition. In particular, because federal criminal courts (as a sentence enhancement) and the BIA (as a removal ground) both apply the definition of aggravated felony, INA § 101(a)(43), arguably federal courts need not defer. Federal courts never defer to the BIA if the generic definition is a federal statute, such as the definition of a crime of violence at 18 USC § 16. 2. Identify the minimum prosecuted conduct that violates the criminal statute47 Next, using state case law, jury instructions, or other materials, we identify the elements of the criminal statute of which the person was convicted, and the minimum conduct required to commit these elements. (In some courts this is called the “least adjudicated elements” or “least criminalized act” required for guilt.) Note that we are focusing solely on the minimum conduct required for guilt, and “ignoring the particular facts of the case.” Mathis, 136 S. Ct. at 2248. The Supreme Court cautioned that an immigrant may not simply imagine some possible minimum conduct for an offense, but must demonstrate a “realistic probability” that the conduct actually would be prosecuted under the criminal statute. 48 We can demonstrate a realistic probability of prosecution by producing published or unpublished decisions, or the person’s own

44

For example, in California, besides Defending Immigrants in the Ninth Circuit (www.ilrc.org), see Tooby, Brady, California Criminal Defense of Immigrants (www.ceb.com), and in New York see Vargas, Representing Immigrant Defendants in New York (www.immigrantdefenseproject.org). 45 See, e.g., the California Chart and the Arizona Chart at www.ilrc.org/crimes. See several other state charts and a federal chart at www.nipnlg.org. Current employees of public defender and other indigent criminal defense offices can access a library at www.defendingimmigrants.org, and current immigration non-profits can access a similar library at www.immigrationadvocates.org. 46 See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), discussing when federal courts must defer to an administrative agency’s interpretation of the statute it administers. For a basic overview of deference issues in immigration law see Brady, “Who Decides? Chevron, Brand X, and Mead Principles” at www.ilrc.org/files/documents/overview_of_chevron_mead__brand_x.pdf. 47 Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). 48 See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 193 (2007), cited in Moncrieffe, 133 S. Ct. at 1684.

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case, where that conduct actually was prosecuted, or (at least in some circuits) showing that the specific conduct is set out in the language of the criminal statute. Example: Iowa Code § 702.12 prohibits in part a burglary of “building and structures, [or] land, water, or air vehicle” (emphasis added). The language of the statute as well as Iowa cases demonstrate that the statute is used to prosecute burglary of vehicles, not just burglary of buildings. Thus the minimum prosecuted conduct includes burglary of a vehicle.

Here is where we compare the generic definition and the criminal statute. One way of articulating this test is, if the minimum conduct to violate the statute necessarily (in every case) comes within the generic definition, there is a categorical match. Another way is to ask, could someone be convicted of the criminal statute who could not also be convicted of the generic definition? If not, there is no categorical match. Example: A person can be convicted of Iowa burglary for illegally entering a vehicle with intent to commit a crime. Could that person also be convicted of generic burglary? No. Generic burglary includes entry into a building or structure, but excludes entry into a vehicle. Because of this discrepancy, there is no categorical match. If there is no categorical match then the statute as whole is overbroad, meaning it reaches conduct not reached by the generic definition. In that case the immigrant will win everything, unless the statute is divisible. We go to Step 2 to determine divisibility. If instead there is a categorical match, the removal ground will apply to every immigrant convicted under the statute. The client loses and our analysis is over. C.

Step 2: Is the Criminal Statute Divisible? 50

This step may appear complex, but stay with it until the example. The Supreme Court affirmed a strict test for when a criminal statute is divisible. The statute must meet all of these criteria: 1. The statutory language must set out multiple discrete elements in the alternative (i.e., the statute must use the word “or”). 2. At least one, but not all, of the offenses created by these alternatives is a categorical match to (comes within) the generic definition. 3. In every case, a jury would have to agree unanimously between these alternatives in order to find the defendant guilty. This jury unanimity requirement what makes the statutory alternatives constitute “elements” rather than mere “means.” If any of these criteria are not met, the statutory alternatives are not elements and do not create different offenses. The statute is indivisible (not divisible).

49 50

See, e.g., Moncrieffe, supra. See, e.g., Mathis, 136 S.Ct. at 2248-2249; Descamps, 133 S.Ct. at 2281, 2283, 2288.

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3. Do the elements of the crime of conviction (the minimum conduct required for guilt) necessarily meet the elements of the generic definition? 49

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Example: Let’s use these three criteria to determine whether the Iowa burglary statute is divisible between burglary of a building and burglary of a vehicle. 1. Does Iowa Code § 702.12 set out multiple discrete elements in the alternative? Yes. It prohibits entering a building “or” a vehicle.

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2. Is at least one but not all of these alternatives a categorical match to the generic definition? Yes. Burglary of a building meets the definition of generic burglary, but burglary of a vehicle does not. 3. Must a jury decide unanimously between “building” and “vehicle” in order to convict the defendant? No. In Mathis, supra, the Supreme Court considered whether the Iowa burglary statute met this requirement. It found that under Iowa law a jury could convict the defendant even if it split, with some jurors finding that a building was burgled and others finding a vehicle was. Therefore, “building” and “vehicle” are not alternative elements, creating multiple offenses, but are mere alternative means or examples of different ways to commit a single offense. Because it does not list elements in the alternative, the Iowa burglary statute is indivisible between a building or vehicle. The jury unanimity requirement is a new concept to many immigration advocates. The Supreme Court has discussed how one can determine whether a particular criminal statute carries a jury unanimity requirement. See discussion in Part Two. If the statute is indivisible because it does not meet all of these criteria (as in this example), the immigrant wins. The minimum conduct test controls, and we already found that the statute is overbroad under that test. When a criminal statute is both overbroad and indivisible, no one who is convicted under it comes within the removal ground. This is true for purposes of deportability, admissibility, and eligibility for relief, and regardless of facts in the record. Example: In Mathis, the Supreme Court found that the Iowa burglary statute was not divisible between burglary of a building and a vehicle. Since it was not divisible, the minimum conduct test controlled. The court already had found that the minimum conduct to commit the offense (burglary of a vehicle) was not a categorical match with the generic definition, and that the statute therefore was overbroad. Because the statute was both overbroad and indivisible, the Court found that no conviction under it ever amounts to generic burglary. Note that this is true even if a defendant specifically pled guilty to burglary of a building. If the statute is not divisible, the adjudicator cannot rely on individual facts or record; she can consider only the minimum conduct prosecuted under the statute. In immigration proceedings the conviction does not trigger the removal ground regardless of whether the issue is deportability, inadmissibility, or eligibility for relief. No conviction of the Iowa statute is generic “burglary” under any circumstances. See, e.g., the Supreme Court’s holding in Moncrieffe, supra, which is that because the minimum conduct to commit the

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offense is not an aggravated felony, Mr. Moncrieffe is eligible to apply for LPR cancellation. If the statute is divisible because it meets all of the above criteria, we go on to Step 3. For example, if Iowa did have a rule that a jury must agree unanimously between burglary of a building and a vehicle, the statute would be divisible and we would go to Step 3. D.

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Step 3: If the Statute Is Divisible, Do Documents in the Record of Conviction Establish of Which Crime the Defendant Was Convicted (The “Modified Categorical Approach”)? 51

If the document(s) in the reviewable record conclusively identify of which offense the person was convicted, then the adjudicator will apply the categorical analysis to that offense. If the record is inconclusive, the case outcome might depend upon whether the question is deportability versus eligibility for relief.

•

DHS always must prove that a conviction causes deportability. If the record of conviction under a divisible statute is inconclusive then the person is not deportable, because DHS cannot meet their burden.

•

The BIA and some federal courts hold that an inconclusive record of conviction does not meet an immigrant’s burden of proving eligibility for relief. Other federal courts have held that it does.

See § 2.5 for further discussion of the documents that are contained in the reviewable record of conviction, and for the burden of proving eligibility for relief when a statute is divisible. § 2.5

Divisible Statutes, the Record of Conviction, and Burdens of Proof: The Modified Categorical Approach

In § 2.4 we learned that a statute is divisible only if it meets the Supreme Court’s strict and recently clarified test. The statute must set out elements in the alternative (using “or”). A jury must unanimously agree between the statutory alternatives in order to find guilt, in every case. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).

51

See ibid. Although the specifics vary across circuits, generally the reviewable record of conviction by plea consists of “the statutory the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 20 (2005). The reviewable record of a conviction by jury includes documents such as the charging document and jury instructions. Taylor v. United States, 495 U.S. 575, 602 (U.S.1990). See Part Two, discussion of Step 5. 52

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If and only if a statute is divisible according to the criteria in Step 2, the modified categorical approach applies. Here the immigration judge or officer may review certain documents from the client’s record of conviction, 52 with the sole purpose of identifying which offense (which of the alternative elements set out in the statute) the person was convicted of.

If and only if a statute is divisible under that standard, we proceed to Step 3, which often is referred to as the modified categorical approach.

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Under this approach, the adjudicator may examine a limited set of documents known as the reviewable “record of conviction,” to consult facts that were required for a finding of guilt, in order to determine which of the statutory alternatives was the basis for the conviction in the particular case. If this limited review of documents fails unequivocally to establish that the elements of the offense of conviction match those of the generic definition, then the conviction does not make the person deportable. A.

What Documents Can Be Consulted to Determine the Elements of the Offense of Conviction?

When an immigration adjudicator reviews a prior conviction that is a divisible statute under the modified categorical approach, she should only consult a limited number of documents to identify the elements of the offense of conviction. The Supreme Court has stated that the permissible documents for review in a conviction by plea are only “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 125 S.Ct. 1254, 1257 (2005). The Board of Immigration Appeals has long imposed similar restrictions on what an immigration judge can review. The reviewing authority may only consult information in the charging papers (indictment, complaint, information), the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and the sentence and transcript from sentence hearing. In immigration proceedings this group of permitted documents often is referred to as “the record of conviction.” 53 Sources of information that are not allowed include: a prosecutor’s remarks during the hearing, police reports, probation or “pre-sentence” reports, statements by the noncitizen outside of the judgment and sentence transcript (e.g., to police or immigration authorities or the immigration judge), or information from a co-defendant’s case. 54 Thus, for example, where a wife was convicted of assault with intent to commit “any felony,” the immigration authorities could not look to her husband’s record of conviction to define the felony. 55 Courts may impose further limitations on the documents in a criminal court file that may be consulted by case law. For 53

Matter of Pichardo, Int. Dec. 3275 (BIA 1996); Matter of Teixeira, Int. Dec. 3273 (BIA 1996); Matter of Madrigal-Calvoi, Int. Dec. 3274 (BIA 1996); Matter of Sweetser, Int. Dec. 3390 (BIA 1990); Matter of Short, 20 I&N Dec. 136 (BIA 1989); Matter of Mena, 17 I&N Dec. 38 (BIA 1979); Matter of Cassissi, 120 I&N Dec. 136 (BIA 1963); Matter of Y, 1 I&N Dec. 137 (BIA 1941). 54 See, e.g., Taylor v. United States, supra; Matter of Short, 20 I&N Dec. 136 (BIA 1989) (co-defendant’s conviction is not included in reviewable record of conviction); Matter of Y, 1 I&N Dec. 137 (BIA 1941) (report of a probation officer is not included); Matter of Cassissi, 120 I&N Dec. 136 (BIA 1963) (statement of state’s attorney at sentencing is not included); Matter of Madrigal-Calvo, 21 I&N Dec.323 (BIA 1996) (transcript of plea and sentence hearing is included); Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996)(police report is not included); Matter of Pichardo, 21 I&N Dec. 330 (BIA 1996)(admission by respondent in immigration court is not included). 55 Matter of Short, 20 I&N Dec. 136 (BIA 1989).

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example, in the Fifth Circuit, an abstract of judgment cannot be consulted: “Because an ‘abstract of judgment is generated by the [convicting] court’s clerical staff, … it is not an ‘explicit factual finding by the trial judge to which the defendant assented,’ which the court may consider under Shepard.” 56

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Note, however, that if defense counsel stipulated to a document that provides a factual basis for the plea, such as the police report or probation report, the contents may well become part of the reviewable record. 57 B.

Burden of Proof with a Divisible Statute

Burden of Proof: Deportability. Because ICE must prove deportability, ICE always has the burden of producing a reviewable record that shows that a conviction under a divisible statute was for a deportable offense. If the record is inconclusive as to which offense in a divisible statute was the subject of the conviction, ICE cannot meet its burden and the immigrant is not deportable. An inconclusive record might be, for example, evidence of a plea of guilty to a charge of committing “x or y,” or no record from the proceeding at all other than proof of conviction under the statute. Burden of Proof: Eligibility for Relief. Here authorities are split as to what happens if the record is inconclusive. The First, Second, and Fifth Circuit Courts of Appeals have held that an inconclusive record is sufficient to meet the immigrant’s burden of proving that a conviction under a divisible statute does not bar eligibility for relief.58 The BIA and the Fourth, Ninth, and Tenth Circuits have held that an inconclusive record does not meet the immigrant’s burden,59 and the Third and Seventh Circuits have agreed with this reasoning (although in cases that did not

56

United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir.2005) (quoting Shepard v. United States, 544 U.S. 13, 15 (2005)). 57 See, e.g., Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA 2010) (“The signed guilty plea reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. While a police report, standing alone, is not part of the record of conviction, the respondent’s decision to incorporate the police report into the guilty plea made the report an explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent]’”) (internal quotations omitted); United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008). 58 Behre v. Gonzales, 464 F.3d 74 (1st Cir. 2006); Martinez v. Mukasey, 551 F.3d 113 (2nd Cir. 2008); Omari v. Gonzales, 419 F.3d 303 (5th Cir. 2005). 59 Matter of Almanza-Arenas, 24 I&N Dec. 771 (BIA 2009); Salem v. Holder, 647 F.3d 111 (4th Cir. 2011); Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc); Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009).

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As we discussed, if and only if the statute is divisible under the above standard, we proceed to the modified categorical approach. This is the only step in the categorical approach where the adjudicator is permitted to rely upon facts in the record of conviction, and where the immigrant might be required to produce his or her record. Who has the burden of producing the record of conviction, and persuading the adjudicator that the record shows deportability or is a bar to eligibility to relief?

employ the full categorical approach). 60 Advocates are contesting some of the negative decisions based on Moncrieffe v. Holder, supra. 61 If you are litigating this issue, please contact the Immigrant Defense Project. 62

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§ 2.6

Exceptions to the Categorical Analysis

The categorical approach potentially applies any time the phrase “convicted of” is used in a federal statute. As the Supreme Court’s interpretation of the phrase “convicted of,” it is the default option for how to characterize the type of offense that was the subject of the conviction. There are several instances, however, where the categorical approach does not apply either wholly or in part. These include convictions in some contexts, and almost all factual and discretionary inquiries. A.

Removal Grounds Based on a Conviction

The categorical approach generally governs whether a conviction of a particular type of offense brings a consequence as a ground of inadmissibility or deportability (including as an aggravated felony). This includes when the removal ground functions as a bar to eligibility for relief, or statutory bar to establishing good moral character under INA § 101(f). For example, the categorical approach applies in determining whether a person is ineligible to apply for non-LPR cancellation because she was convicted of a deportable offense, or is unable to adjust status based on conviction of an inadmissible offense. There are some exceptions, however. Crimes Involving Moral Turpitude Is No Longer an Exception. In 2008, the Attorney General held that the categorical approach does not fully apply to moral turpitude determinations. After several federal courts rejected that interpretation, she withdrew the decision in 2015. Now the BIA has affirmed that “the categorical and modified categorical approaches provide the proper framework for determining when a conviction is for a crime involving moral turpitude.” See Matter of Silva-Trevino, 26 I&N Dec. 826, 827 (BIA 2016), on remand from Matter of SilvaTrevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015), in which the Attorney General vacated Matter of Silva-Trevino (“Silva-Trevino I”), 24 I&N Dec. 687 (A.G. 2008). “Ordinary Case” and Felony Crime of Violence Exception, 18 USC § 16(b). An offense that qualifies as a “crime of violence” under 18 USC § 16 is an aggravated felony if a sentence of a year or more is imposed, and is a deportable “crime of domestic violence” regardless of sentence if there is sufficient evidence that the victim and defendant shared a protected domestic relationship. 63 Under 18 USC 16(b), a felony conviction qualifies as a “crime of violence” if it 60

See Syblis v. Atty. Gen., 763 F.3d 348 (3rd Cir. 2014) (addressing a moral turpitude determination under Matter of Silva Trevino I (see discussion of Silva-Trevino in Part IV of this article)), Sanchez v. Holder, 757 F.3d 712 (7th Cir. 2014) (addressing “relating to” a controlled substance) (petition for rehearing denied). 61 See the supplemental and amicus briefs in the pending Ninth Circuit case Almanza-Arenas v. Holder, which ask the court to reconsider the rules set out in Young, supra, in light of Moncrieffe, supra. The briefs are at www.ilrc.org/crimes; search for Almanza-Arenas. 62 Please contact Andrew Wachtenheim at [email protected]. 63 See INA § 101(a)(43)(F) (aggravated felony); INA § 237(a)(2)(E)(i) (domestic violence deportation ground).

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involves a substantial risk that violence will be used in committing the offense. Some courts held that a felony meets this risk-based test if the “ordinary” case would involve such a risk, but have interpreted the “ordinary” case test in a way that conflicts with the minimum conduct test.

After that, federal courts differed as to whether 18 USC § 16(b) similarly is void for vagueness. In 2016, the Supreme Court accepted certiorari on this issue, reviewing Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). The decision will issue in 2017. See also Practice Advisories 64 (written before the Supreme Court opinion) for further discussion of the potential effect on crimes of violence under Johnson. Circumstance-Specific Exception: Fraud or Deceit in which Loss to Victim/s Exceeds $10,000. In Nijhawan v. Holder, 557 U.S. 29 (2009) the Supreme Court held that some aggravated felony definitions are made up of two parts: one or more “generic” offenses that are subject to the categorical approach, and one or more “circumstance-specific” factors that are not. Nijhawan concerned the aggravated felony of a crime of fraud or deceit in which the loss to the victim/s exceeds $10,000. INA § 101(a)(43)(M). Parsing the statutory definition, the Court found that the requirement of loss exceeding $10,000 is circumstance-specific and need not be proved under the categorical approach, while fraud and deceit are generic offenses that are subject to the categorical approach. 65 This means that (a) the offense does not have to have a loss exceeding $10,000 as an element; instead the adjudicator will look at the loss in this particular case, and (b) the amount of loss can be showed by qualifying evidence from outside the record of conviction, as long as the evidence is tethered to the count of conviction. For more information on “circumstance specific” inquiries and Nijhawan, see Practice Advisories available online.66 Circumstance-Specific: Crime of Domestic Violence. A deportable “crime of domestic violence” is a crime of violence as defined in 18 USC § 16 that is committed against a victim with whom the defendant shares or shared a qualifying domestic relationship. INA § 237(a)(2)(E)(i). It is settled that the categorical approach is used to determine whether the

64 See, e.g., Zota, “How Johnson v. United States May Help Your Crime of Violence Case” (July 6, 2015, NIPNLG) at www.nipnlg.org/legalresources/practice_advisories/pa_Johnson_and_COV_07-06-2015.pdf and see discussion of Johnson applied to offense examples in Brady, “Some Felonies Should No Longer Be Crimes of Violence under Johnson v. United States” at www.ilrc.org/resources/some-felonies-should-nolonger-be-crimes-of-violence-for-immigration-purposes-under-johnso. 65 See also Kawashima v. Holder, 132 S.Ct. 1166 (2012). 66 See NIP/NLG and IDP, “The Impact of Nijhawan v. Holder on the Categorical Approach” (2009) at www.nipnlg.org and see ILRC, “Preliminary Advisory on Nijhawan v. Holder” (2009) at www.ilrc.org/crimes.

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In 2015 the Supreme Court held that a different federal definition of crime of violence, which uses language nearly identical to 18 USC § 16(b), is unconstitutionally vague. It further held that the “ordinary case” standard may no longer be used to determine if an offense is a crime of violence, and it overturned its own precedent setting out the “ordinary case” standard. Johnson v. United States, 135 S.Ct. 2551 (2015), overruling James v. United States, 550 U.S. 192 (2007) and Sykes v. United States, 564 U.S. 1 (2011).

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conviction is of a crime of violence. The issue is what standard governs proof of the required domestic relationship. The BIA held that the domestic relationship is a “circumstance specific” factor that can be proved using any reliable evidence, including evidence from outside the record of conviction. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). In practice, this already was the rule in immigration proceedings in several circuits. The Ninth Circuit has employed a different rule: the domestic relationship does not need to be an element of the offense, but it can be proved only with conclusive evidence found in the reviewable record of conviction. See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). But advocates in the Ninth Circuit should be prepared for possible change; see Practice Advisory on Matter of H. Estrada online. 67 Circumstance-Specific: 30 Grams or Less of Marijuana. The deportation ground based on conviction of an offense relating to a controlled substance has an exception for “a single offense involving possession for one’s own use of thirty grams or less of marijuana.” In Matter of Davey, 26 I&N 37 (BIA 2012) the BIA held that the amount of marijuana is proved in a circumstancespecific inquiry that can consider relevant evidence from outside the record. The BIA held that a person convicted of more than one statutory crime may be covered by the exception if all the person’s crimes were closely related to or connected with a single incident in which the person possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimes was inherently more serious than simple possession. In Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014), the BIA reaffirmed the rule in Davey and found it was not implicitly reversed by the Supreme Court in Moncrieffe v. Holder, supra. The BIA rejected the respondent’s argument that the minimum prosecuted conduct test must apply, and therefore because a statute prohibiting possession of “more than an ounce” (i.e., more than 28.5 grams) of marijuana, had been used to prosecuted less than 30 grams, the conviction was not a deportable controlled substance offense. Instead the BIA reaffirmed that the circumstance-specific test applies to the amount of marijuana. It remanded to the immigration judge so that DHS could “proffer any evidence that is reliable and probative” to prove that the amount was over 30 grams, and the respondent would have a reasonable opportunity to challenge or rebut the evidence. Dominguez-Rodriguez, supra at 414. Note that some advocates assert that the 30 grams exception should be evaluated using the regular categorical approach, not the circumstance-specific approach. For more on the 30 grams or less of marijuana exception, see § 2.10.C. Circumstance-Specific: Family Exception to the Alien Smuggling Aggravated Felony. A conviction under 8 USC § 1324(a)(1)(A) is an alien smuggling aggravated felony “except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual).” 68 The Ninth Circuit held that the family exception is a circumstance specific factor. United States v. Guzman-Mata, 579 F.3d 1065, 1070 (9th Cir. Ariz. 2009).

67

Brady, “Practice Advisory: Deportable Crime of Domestic Violence and Matter of H. Estrada,” at www.ilrc.org/advisory-deportable-crimes-domestic-violence-matter-h-estrada. 68 INA § 101(a)(43)(N), 8 USC § 1101(a)(43)(N).

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Circumstance-Specific: Transportation for Prostitution if Committed for Commercial Gain. In Nijhawan, supra, the Supreme Court stated in dicta that “commercial gain” in the aggravated felony defined at INA § 101(a)(K)(ii) is a circumstance-specific factor. See also Matter of Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007). B.

Conduct-Based Removal Grounds

The Ninth Circuit has held that the categorical approach does apply if a criminal conviction is the only evidence of the conduct (and where the government has the burden of proof). It held that a returning permanent resident was not inadmissible 69 under the prostitution ground where (a) the criminal conviction was the only evidence, and (b) the conviction was for an offense that did not meet the generic definition of prostitution under the categorical approach, because the minimum conduct was a broadly defined “lewd act” for a fee, whereas the generic definition of prostitution is sexual intercourse for a fee. 70 Purely Discretionary Decisions

The categorical approach does not apply in a purely discretionary decision, i.e., whether an applicant who meets statutory requirements, actually merits a grant of asylum, a waiver of inadmissibility, or a finding of good moral character as a matter of discretion. Thus the strict limits of the categorical approach might apply to a conviction during the “deportability” phase of a hearing, but the judge may consider underlying facts of the conviction, as well as any other relevant and probative evidence, in making a purely discretionary decision during the relief phase. Example: Because his conviction is not an aggravated felony under the categorical approach, Mr. Moncrieffe may apply for LPR cancellation. When it comes to deciding whether to grant the cancellation application, however, the immigration judge may consider the underlying facts. Moncrieffe v. Holder, 136 S.Ct. at 1692 (noting that the judge can decide to “deny relief if he finds that the noncitizen is actually a member of one ‘of the world’s most dangerous drug cartels’” or “if he concludes the negative equities outweigh the positive equities of the noncitizen’s case for other reasons”). D.

Conviction-Based Bars to Eligibility for Relief That Are Not Removal Grounds

A conviction that comes within a removal ground can act as a bar to eligibility for lawful status or relief. For example, a person is not eligible for LPR cancellation of removal if she is convicted of an aggravated felony, and is not eligible for naturalization if she is statutorily barred from 69

See discussion of burden of proof at Kepilino v. Gonzales, 454 F.3d 1057, 1059-61 (9th Cir. 2006). It appears that a conditional resident was returning from a trip abroad, so that the government had the burden of proving that she was not seeking a new admission under INA § 101(a)(13)(C). 70 Kepilino v. Gonzales, supra.

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The categorical approach generally does not apply to fact-based inquiries, such as whether the person comes within a removal ground based on conduct rather than on a criminal conviction. Examples of conduct-based grounds are being inadmissible for engaging in prostitution, or being inadmissible or deportable as an abuser or addict.

C.

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establishing good moral character due to conviction of an inadmissible offense within the required period. 71 The categorical approach applies to removal grounds in the context of eligibility for relief. See, e.g., Moncrieffe v. Holder, supra, Matter of Chairez-Castrejon, supra (because the minimum prosecuted conduct to commit the offense was not an aggravated felony, the immigrant was permitted to apply for LPR cancellation). Other statutory or regulatory bars to eligibility for relief are not based on removal grounds. The BIA has held that the categorical approach does not wholly apply to at least some of these. This includes conviction of a particularly serious crime” (bar to asylum and withholding) 72 or conviction a violent or dangerous offense (potential bar to asylum, asylee or refugee adjustment waiver under INA § 209(c), a waiver under INA § 212(h), or potentially adjustment under INA § 245). 73 DHS indicated that the categorical approach would apply to the definition of at least one significant misdemeanor—a crime of domestic violence—in the context of enforcement priorities under the Obama Administration. 74 Besides making the person an enforcement priority, conviction of a significant misdemeanor acts as a bar to DACA, and the categorical approach has not been applied to crime of domestic violence in the DACA context. 75 The BIA held that the circumstance-specific test applies in determining whether a visa petitioner was convicted of a specified offense against a minor, which under the Adam Walsh Act can bar a U.S. citizen or permanent resident from immigrating a close relative.76 PART THREE: CRIMINAL PROVISIONS IN IMMIGRATION LAW § 2.7

Overview of Immigration Consequences of Crimes

Part Three of this chapter provides information on the criminal grounds of immigration law. Immigration practitioners should know that there are three categories of crimes that comprise the most common of the adverse immigration consequences that flow from criminal offenses for lawful permanent residents. 77 They are:

71

See discussion of eligibility for relief and criminal bars at Immigration Relief Toolkit at www.ilrc.org/chart. 72 Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007). 73 See “violent or dangerous” crime in cases such as Matter of Jean, 23 I&N Dec. 373 (A.G. 2002)(asylum) and the regulation governing waivers under INA § 212(h), 8 CFR 8 CFR § 1212.7(d). See discussion in Torres-Valdivias v. Holder, 766 F.3d 1106 (9th Cir. 2014), declining to apply the categorical approach to determining whether the offense is a violent or dangerous crime. 74 See USCIS, Frequently Asked Questions Relating to Executive Action on Immigration at www.ice.gov/immigrationAction/faqs, providing that the significant misdemeanor relating to domestic violence is defined by a “crime of domestic violence” in the domestic violence deportation ground. 75 For more on these issues, see materials www.ilrc.org/daca. 76 Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014). 77 Other consequences beyond the three categories listed below can adversely affect persons applying for asylum (if convicted of a “particularly serious crime”), temporary protected status (if convicted of two misdemeanors or a felony), or a few other types of immigration status.

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• • •

The grounds of deportability, at INA § 237(a)(2); The grounds of inadmissibility, at INA § 212(a)(2) 78 and The definition of aggravated felony, at INA § 101(a)(43).

To determine whether your client is subject to the grounds of inadmissibility or deportability, consult § 2.1 above and Chapter 1, § 1.3. A.

Comparing the Criminal Grounds of Deportability and Inadmissibility

The criminal grounds of inadmissibility and deportability are similar, but they are not identical. Thus, whether your client is being charged with a ground of inadmissibility or deportability can have a significant impact on his or her chances of prevailing in immigration court or obtaining an immigration benefit. Certain offenses will make a noncitizen deportable but not inadmissible, and vice versa. The following is a comparison of the types of convictions or evidence of criminal activity that make a noncitizen deportable or inadmissible. Criminal Grounds of Inadmissibility: 1. Admission or conviction of a crime involving moral turpitude [INA § 212(a)(2)(A)(i)(I)] 79 2. Admission or conviction of a controlled substance (drug) offense [INA § 212(a)(2)(A)(i)(II)] 3. Where a DHS or consular official knows or has reason to believe the person is a controlled substance trafficker [INA § 212(a)(2)(C)] 4. Prostitution and commercialized vice [INA § 212(a)(2)(D)] 5. Conviction for multiple criminal convictions where the total aggregate sentence(s) is 5 years or more [INA § 212(a)(2)(B)] 6. Serious criminal activity where the person has asserted immunity from prosecution [INA § 212(a)(2)(E)] 7. Foreign Government officials who have committed particularly severe violations of religious freedom [INA § 212(a)(2)(G)] 8. Significant traffickers in persons, including beneficiaries of trafficking, [INA § 212(a)(2)(H)] and 9. Money laundering [INA § 212(a)(2)(I)].

78

The crimes-based grounds of inadmissibility are also incorporated as bars to establishing “good moral character” under INA § 101(f). 79 Note the exceptions to this ground in INA § 212(a)(2)(A)(ii).

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Criminal offenses may fall into either the grounds of inadmissibility, the grounds of deportability, or both. In addition, conviction of an aggravated felony is not only a ground of deportability, but a bar to eligibility for many forms of relief from removal. Immigration practitioners should be aware that a criminal offense can trigger more than one inadmissibility and/or deportability ground or bar to relief from removal. Thus, a single offense can cause numerous adverse consequences.

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Criminal Grounds of Deportability:

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1. Conviction for a crime involving moral turpitude that was committed within 5 years after the date of admission and that carries a potential sentence of a year or more [INA § 237(a)(2)(A)(i)] 2. Conviction, at any time after admission, of two or more crimes involving moral turpitude that did not arise out of “a single scheme of criminal misconduct” [INA § 237(a)(2)(A)(ii)] 3. Conviction of an aggravated felony any time after admission [INA § 237(a)(2)(A)(iii)] 4. Conviction for high speed flight as defined in 18 USC § 758 [INA § 237(a)(2)(A)(iv)] 5. Conviction of a controlled substance violation any time after admission [INA § 237(a)(2)(B)(i)] 6. A person who, at any time after admission, has been a drug abuser or addict (no conviction required) [INA § 237(a)(2)(B)(ii)] 7. Conviction of certain firearms offenses [INA § 237(a)(2)(C)] 8. Conviction for miscellaneous crimes relating to espionage, treason and sedition [INA § 237(a)(2)(D)] 9. Conviction for a crime of domestic violence, stalking or child abuse, child neglect, or child abandonment [INA § 237(a)(2)(E)(i)] 10. Persons whom a civil or criminal court judge has found to have violated a domestic violence protection orders [INA § 237(a)(2)(E)(ii)] Some of the differences between the two lists are especially worth noting. First, there is no inadmissibility ground relating to domestic violence, child abuse, or firearms. If a lawful permanent resident is subject to the deportability grounds, however, and has a conviction for any offense that comes within these grounds, no matter how minor, that person is deportable. In contrast, if a lawful permanent resident is subject to the inadmissibility grounds, the offense may not have any adverse immigration consequences. 80 For example, possession of an unregistered firearm is a deportable offense under INA § 237(a)(2)(C), but is not an offense that comes within the grounds of inadmissibility. Therefore, if your client were subject to the grounds of inadmissibility, this offense would not jeopardize his permanent residence. (Note, however, that if the firearms offense also is a crime involving moral turpitude—for example, assault with a firearm—it could trigger inadmissibility under the moral turpitude grounds). Second, there are different rules governing when a moral turpitude conviction makes a noncitizen inadmissible or deportable. For example, conviction of a single crime involving moral turpitude that falls within the petty offense exception would not make someone inadmissible. 81 However, that same offense, if committed within five years of the person’s admission, would make him deportable. Check the person’s entire criminal record against the formulae discussed in § 2.9 below. Third, certain “conduct-based” grounds make a noncitizen inadmissible, but not deportable. These include engaging in prostitution, formally admitting commission of an 80

However, a returning LPR could be found admissible (therefore not making a new admission upon return to the US from abroad) then charged with a deportation ground once inside the U.S. 81 See INA § 212(a)(2)(A)(ii)(II).

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inadmissible drug or moral turpitude offense, and where the government has “reason to believe” (but no conviction) that the person aided in drug trafficking. Finally, an aggravated felony is not a per se ground of inadmissibility. If the conviction does not come within the controlled substance grounds, a person with an aggravated felony conviction may be able to avoid removal by re-adjusting status as an immediate relative. 82

B.

Special Penalties for Conviction of an Aggravated Felony

Conviction of an aggravated felony is a ground of deportability, but it is worth discussing separately because it triggers many terrible consequences for noncitizens, including lawful permanent residents. With a few important exceptions, conviction of an aggravated felony ensures deportation, bars eligibility to obtain new lawful status, and blocks any hope of a waiver or defense. In contrast, a person who is “merely” inadmissible or deportable under other grounds still might be able to apply for a discretionary waiver, application or defense that will let him or her continue in status. In addition, a noncitizen who is convicted of an aggravated felony and then deported (“removed”) is subject to a greatly enhanced federal sentence if she attempts to re-enter the U.S. illegally. See 18 USC § 1326(b)(2). Aggravated felonies are discussed in detail in the next section. § 2.8 A.

Aggravated Felonies

Overview and Penalties

A person convicted of an aggravated felony after admission is deportable under INA § 237(a)(2)(A)(iii). It is important to note that although there is no aggravated felony ground of inadmissibility, a person who is both convicted of an aggravated felony and removed is permanently inadmissible under INA § 212(a)(9)(A)(i). B.

Definition of Aggravated Felony

Aggravated felonies are defined at INA § 101(a)(43), which is a list of dozens of common-law terms and references to federal statutes. It covers a broad range of conduct, including some that might not appear to some to be especially egregious, such as selling $10 worth of marijuana, or “smuggling” one’s baby sister across the border illegally. 84 Federal and state offenses can be aggravated felonies, as can foreign offenses unless the resulting imprisonment ended more than 15 years earlier. Notably, many misdemeanors are aggravated “felonies.” See below for an alphabetical list of the crimes defined as aggravated felonies under INA § 101(a)(43).

82

See Chapter 5, § 5.3, Subsection B, Chapter 6, § 6.5, Subsection A, and Chapter 8, § 8.3. For a detailed analysis of these grounds, see ILRC’s publication Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (www.ilrc.org) and updates. 84 See INA §§ 101(a)(43)(B) and (N). 83

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An in-depth discussion of each of the criminal grounds of inadmissibility and deportability is beyond the scope of this manual. 83 However, we will look at the most common grounds of inadmissibility and deportability: crimes involving moral turpitude, controlled substance offenses, domestic violence/protection order offenses, prostitution, multiple criminal convictions, failure to register as a sex offender, and aggravated felonies.

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Due to the extensive nature of this topic, a discussion of each individual aggravated felony is beyond the scope of this manual. For more information, consult books such as ILRC’s Defending Immigrants in the Ninth Circuit (www.ilrc.org); Tooby, Aggravated Felonies (www.nortontooby.com); and the National Immigration Project of the National Lawyers Guild, Immigration Law and Crimes (http://legalsolutions.thomsonreuters.com). Where a federal criminal statute is cited in the aggravated felony definition, a state offense is an aggravated felony only if all of the substantive elements of the state offense are included in the federal offense. But the fact that the state offense lacks a federal jurisdictional element—e.g., crossing state lines, or affecting interstate commerce—generally will not prevent a state offense from being an aggravated felony. See Luna-Torres v. Lynch, 136 S.Ct. 1619 (2016) (state arson offense that matches the elements of 18 USC § 844(i) but for the federal jurisdictional element, is an aggravated felony as an offense “described in” the federal statute). Advocates who want to investigate defenses after Luna-Torres should see Practice Advisory available online. 85 Where the aggravated felony is identified by general or common law terms that have no set definition—such as theft, burglary, or sexual abuse of a minor—courts will consider various potential definitions and then choose a contemporary, “generic” definition setting out the elements of the offense. To be an aggravated felony, a state offense must be entirely covered by the generic definition. See discussion of the categorical approach at §§ 2.4–2.6. Effective Date. The current definition of an aggravated felony was enacted into law on September 30, 1996, as part of IIRIRA. For most but not all purposes, the definition applies regardless of when the conviction took place. This means that people with convictions that were not even deportable offenses before September 30, 1996 can be found deportable now for those same offenses. 1. List of aggravated felonies Every offense should be examined closely to determine whether it is an aggravated felony or not. Some offenses are aggravated felonies only if a sentence of a year or more has been imposed, while others are aggravated felonies regardless of the sentence. Even misdemeanor offenses can be held to be aggravated felonies. See, e.g., Matter of Small, 23 I&N Dec. 448 (BIA 2002) (sexual abuse of a minor). It is important to do a close analysis to determine whether an offense is an aggravated felony, because there may be a surprising defense. The categorical analysis discussed at § 2.4 above is a great resource for arguing that many serious offenses that appear to be aggravated felonies are actually not, thereby preserving additional immigration defense options for your lawful permanent resident. The following is a list of the offenses referenced in INA § 101(a)(43), arranged in alphabetical order. The capital letter following the offense refers to the subsection of INA § 101(a)(43) where the offense appears.

85

See National Immigration Project of the National Lawyers Guild and Immigrant Defense Project, “Practice Alert: Luna-Torres v. Lynch” (May 20, 2016) at www.nipnlg.org/PDFs/practitioners/practice_advisories/crim/2016_20May_luna-torres-alert.pdf.

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•

• • • • • • • • • • • • • • • • • • • • • • 86

RICO stands for “racketeer influenced corrupt organization.” See 18 USC § 1962.

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• • • • • • • •

alien smuggling: smuggling, harboring, or transporting of aliens except for a first offense in which the person smuggled was the parent, spouse or child (N) attempt to commit any aggravated felony (U) bribery of a witness: if the term of imprisonment is at least one year (S) burglary: if the term of imprisonment is at least one year (G) child pornography (I) commercial bribery: if the term of imprisonment is at least one year (R) conspiracy to commit any aggravated felony (U) counterfeiting: if the term of imprisonment is at least one year (R) crime of violence as defined under 18 USC 16 resulting in a term of at least one year imprisonment, if it was not a “purely political offense” (F) destructive devices: trafficking in destructive devices such as bombs or grenades (C) drug offenses: any offense generally considered to be “drug trafficking,” plus cited federal drug offenses and analogous felony state offenses (B) failure to appear: to serve a sentence if the underlying offense is punishable by a term of 5 years, or to face charges if the underlying sentence is punishable by 2 years (Q and T) false documents: using or creating false documents, if the term of imprisonment is at least twelve months, except for the first offense which was committed for the purpose of aiding the person’s spouse, child or parent (P) firearms: trafficking in firearms, plus several federal crimes relating to firearms and state analogues (C) forgery: if the term of imprisonment is at least one year (R) fraud or deceit offense if the loss to the victim exceeds $10,000 (M) illegal re-entry after deportation or removal for conviction of an aggravated felony (O) money laundering: money laundering and monetary transactions from illegally derived funds if the amount of funds exceeds $10,000, and offenses such as fraud and tax evasion if the amount exceeds $10,000 (D) murder (A) national defense: offenses relating to the national defense, such as gathering or transmitting national defense information or disclosure of classified information (L)(i) obstruction of justice: if the term of imprisonment is at least one year (S) perjury or subornation of perjury: if the term of imprisonment is at least one year (S) prostitution: offenses such as running a prostitution business (K) ransom demand: offense relating to the demand for or receipt of ransom (H) rape (A) receipt of stolen property if the term of imprisonment is at least one year (G) revealing identity of undercover agent (L)(ii) RICO 86 offenses: if the offense is punishable with a one-year sentence (J) sabotage (L)(i) sexual abuse of a minor (A) slavery: offenses relating to peonage, slavery and involuntary servitude (K)(iii)

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tax evasion: if the loss to the government exceeds $10,000 (M) theft: if the term of imprisonment is at least one year (G) trafficking in vehicles: with altered identification numbers if the term of imprisonment is at least one year (R) treason: federal offenses relating to national defense, treason (L)

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2. Penalties for conviction: Barred from immigration applications Conviction of an aggravated felony brings severe punishments. The conviction triggers deportability and bars eligibility for many kinds of relief and waivers that would stop deportation. 87 In contrast, a noncitizen who is “merely” deportable or inadmissible might qualify for a waiver or application that would preserve current lawful status or permit the person to obtain new status. People with aggravated felony convictions are also subject to mandatory detention during removal proceedings under INA § 236(c). Example: Marco has been a permanent resident for 20 years and has six U.S. citizen children. He is convicted of an aggravated felony, possession for sale of marijuana. The aggravated felony conviction bars him from applying for the basic waiver “cancellation of removal” for long-time permanent residents.88 There are some immigration remedies for persons convicted of an aggravated felony, but they are limited. The following are some important options. •

Persons convicted of an aggravated felony that is not also a “particularly serious crime” can apply for withholding of removal under INA § 241(b)(3) (also called restriction on removal), if they can show a clear probability that they will persecuted in their home countries. 89

•

Persons convicted of an aggravated felony can apply for relief under the Convention Against Torture (CAT) if they can show they are in danger of being tortured in their home countries. 90

•

Persons whose aggravated felonies do not involve controlled substances might be able to re-adjust status (become a permanent resident again) through an immediate U.S. citizen relative with a waiver under INA § 212(h). 91 Note: a person whose aggravated felony does not trigger inadmissibility may be able to re-adjust their status without a § 212(h) waiver. See Chapters 6 and 8.

•

An aggravated felony conviction is not an absolute bar to eligibility for the “T” visa for persons who are victims of sex trafficking, forced labor, or other trafficking offenses. See INA § 101(a)(15)(T).

87

See Chapter 4, § 4.5, for the aggravated felony bar to LPR cancellation of removal, and Chapter 6, § 6.4, Subsection A for the bar to those “previously admitted as lawful permanent residents” with aggravated felony convictions. 88 See Chapter 4, § 4.5. 89 See Chapter 8, § 8.6, Subsection B. 90 See Chapter 8, § 8.6, Subsection C. 91 See Chapter 6 § 6.5, Subsection A.

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•

An aggravated felony conviction is not an absolute bar to eligibility for the “U” visa for persons who are victims of a certain crimes and who cooperate with authorities in prosecuting the crime, although in practice it is very hard to get an approval with an aggravated felony conviction. See INA § 101(a)(15)(U).

•

Permanent residents who pled guilty to one or more aggravated felonies before April 24, 1996 might be able to obtain a waiver of those offenses under the former § 212(c) relief. See Chapter 5.

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3. Penalties for conviction: Federal offense of illegal re-entry

Note, that persons convicted of certain felonies—whether or not they are aggravated felonies— also face severe sentence enhancements for illegal re-entry. See 8 USC § 1326(b)(1). § 2.9 A.

Crimes Involving Moral Turpitude

Overview

Crimes involving moral turpitude is a broad category that causes both deportability and inadmissibility. Hundreds of different types of offenses qualify as “crimes involving moral turpitude,” and even minor convictions have an immigration impact for both lawful permanent residents and undocumented persons. This section will first discuss what is a crime involving moral turpitude and then discuss the grounds of inadmissibility and deportability relating to crimes involving moral turpitude (CIMT). Whether a noncitizen becomes deportable or inadmissible under the CIMT grounds depends on the number of CIMT convictions, the potential or imposed sentence, and the date the offense was committed. B.

Definition of a Crime Involving Moral Turpitude

The most noteworthy feature of the term “crime involving moral turpitude” is its breadth and vagueness. The courts and the BIA frequently cite the definition given in Bouvier’s Law Dictionary (3rd Ed. 1914) as “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man,” since the INA provides no definition. 92 1. Crimes frequently found to involve moral turpitude What is or is not a crime involving moral turpitude has been the subject of much litigation over the years. In general, courts have held the following types of crimes to involve moral turpitude: 1. crimes in which an intent to defraud is an element; 2. crimes in which an intent to steal (with intent to permanently or at least substantially deprive) is an element; 92

See, e.g., Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992)(defining a crime involving moral turpitude as “conduct that shocks the public conscience as being inherently base, vile, or depraved.”)

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A noncitizen who is convicted of an aggravated felony, deported or removed, and then returns to the U.S. without permission faces a tough federal prison sentence up to 20 years under 8 USC § 1326(b)(2). This applies even to persons whose aggravated felonies were relatively minor offenses, such as possession for sale of marijuana.

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3. crimes in which intent to cause or threaten great bodily harm, or in some cases if reckless or willful causing of serious harm, is an element (but not negligence); 4. some crimes in which “malice” or “lewdness” is an element. Thus, murder, rape, voluntary manslaughter, robbery, burglary with intent to commit larceny or other crime involving moral turpitude, theft (grand or petit) intent to deprive the owner permanently, arson, certain aggravated forms of assault, and forgery all have been consistently held to involve moral turpitude. On the other hand, crimes that involve none of the above elements have been held not to involve moral turpitude, including involuntary manslaughter (except in some cases where criminal recklessness is an element), 93 simple assault, “breaking and entering” or criminal trespass, simple assault or battery, “joyriding,” and various weapons possession offenses. We will examine rules pertaining to some of the most commonly charged. Theft. Not all theft offenses are crimes involving moral turpitude (CIMTs). Traditionally a theft crime has been held a CIMT only when it contains the element of specific intent to steal or otherwise permanently deprive the owner of his or her property. See Matter of V-Z-S, 22 I&N Dec.1338, fn. 12 (BIA 2000). More recently, the Board held that moral turpitude includes theft “with an intent to deprive the owner of his property either permanently or under circumstances where the owner’s property rights are substantially eroded.” Matter of Obeya, 26 I&N Dec. 856 (BIA 2016) (New York Penal Law § 155.25 is a CIMT); Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016) (Arizona Revised Statute § 13-1805(A) is a CIMT). The “substantially eroded” provision is in accord with the Model Penal Code, and the language appears in the code of several states. If a client was convicted under a statute with this language, the offense is very likely to be held a CIMT. A possible defense is to show that a true temporary taking has been prosecuted under the statute, e.g., taking a car or another object with the intent to return it within a few days. While the Board did not specifically define when an owner’s property rights are “substantially eroded,” passage of time appears key. The Board still distinguishes between a temporary taking, such as a traditional joyriding offense or other taking that lasts a short time, and a more harmful, extended taking. “We continue to believe that it is appropriate to distinguish between substantial and de minimis takings when evaluating whether theft offenses involve moral turpitude.… It is not a valid defense to a crime involving moral turpitude charge that a thief may have intended to return the stolen property after the passage of so much time that its value to the owner has been lost or substantially eroded.” Diaz-Lizarraga, at 851, 853. Simple assault or battery where the statute can be violated by a mere offensive touching is not a crime involving moral turpitude. This is true even when the victim and defendant share a domestic relationship. Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (where the minimum conduct to commit spousal battery is an offensive touching, the offense is not categorically a 93 The BIA held that where criminally reckless conduct is an element of the offense, involuntary manslaughter is a crime involving moral turpitude. Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Matter of Perez-Contreras, 20 I&N Dec. 615 (BIA 1992) (third degree assault statute that involved criminal negligence but not recklessness is not turpitudinous). Recklessness may not be an element of involuntary manslaughter under some state statutes, see, e.g., Calif. Penal Code § 192(b).

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CIMT); see also Galeana-Mendoza v. Gonzales, 465 F.3d 1054 (9th Cir. 2006) (same). (Note that while older cases such as these held that the adjudicator could look to the record of conviction to see whether more than offensive touching occurred in the particular case, under recent Supreme Court precedent that is no longer allowed. Under the categorical approach, the adjudicator must consider only the minimum conduct required for guilt, without recourse to the record. See § 2.4.)

Intentional assault with a deadly weapon or with intent to cause great bodily injury is a CIMT. The difference is that simple assault generally covers behavior that is not necessarily violent, but assault with a deadly weapon or intent to cause injury covers behavior that is, or has the potential to be, much more serious. Look closely at the criminal statute’s elements and the case law interpreting those elements. False Statements versus Fraud. A false statement where there is no requirement of intent to defraud, materiality, or obtaining a tangible benefit may be held not to be a CIMT. See, e.g., Matter of Di Filippo, 10 I&N Dec. 76 (BIA 1962). However, any offense involving fraud is a CIMT. Engaging in prostitution is a crime involving moral turpitude for the prostitute. The BIA has not yet decided whether it is for the customer, 94 but the Ninth Circuit held that the customer has committed a CIMT. 95 These examples illustrate that it isn’t always easy to determine what constitutes a crime involving moral turpitude. It is critical to not rely on the labels of the offense to guess whether it involves moral turpitude or not. You must look to the minimum conduct for guilt under the criminal statute, established by jury instructions and case law, and compare that with moral turpitude findings that apply in your jurisdiction (BIA or federal court of appeals decisions). One cannot even rely solely on the language in the criminal code, as that can be misleading. If there is any doubt about whether or not your client falls within the crime involving moral turpitude removal grounds, you should not concede removability; instead you should put the government to its burden, and where possible argue that your client’s crime is not a crime involving moral turpitude. 2. Other considerations for moral turpitude Moral turpitude does not depend on classification as a felony or misdemeanor, or on the severity of punishment allowable or actually imposed. Rather, a crime involving moral turpitude has been 94

Matter of R.M. 7 I&N Dec. 392 (BIA 1957); Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008). 95 Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012) (Cal. Penal Code § 647(b) is categorically a CIMT, for both the prostitute and the customer).

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Some criminal statutes provide additional penalties for an offensive touching that ends up causing an injury. These too ought not to be held to involve moral turpitude, because there was no intent (or likelihood) to cause the injury. See, e.g., Uppal v. Holder, 605 F.3d 712 (9th Cir. 2010) (Canada Penal Code § 268, intentional assault with risk of causing, but not intent to cause, bodily harm is not a CIMT), citing Matter of Muceros, A42-998-610 (BIA May 11, 2000) (index decision) (California Penal Code § 243(d), battery that causes an injury, even if injury was not intended or likely, is not a CIMT).

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defined as an act which is per se intrinsically wrong, or “malum in se.” Matter of Franklin, 20 I&N Dec. 867 (BIA 1994) aff’d, 72 F.3d 571 (8th Cir. 1995).

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Recidivism does not create a crime involving moral turpitude. Instead, each conviction is considered separately to determine whether moral turpitude is involved. Therefore, multiple convictions of the same offense, each of which does not involve moral turpitude, cannot be considered cumulatively to determine that the offense involves moral turpitude. See, e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (simple drunk driving, even with injury or as a repeat offense, is not a CIMT). State court rulings on moral turpitude for impeachment purposes are not controlling for immigration. Because the definition is nebulous, there often is uncertainty as to whether an offense will be held to be a CIMT. The determination is further complicated by the question of whether the BIA or the courts will decide. For more discussion of specific offenses and cases holding that specific offenses are or are not CIMTs, see quick reference charts on the immigration consequences of state offenses; links appear at www.nipnlg.org and www.immigrationadvocates.org. And see, Tooby, Crimes Involving Moral Turpitude (www.nortontooby.com). C.

Moral Turpitude Deportation Grounds, INA § 237(a)(2)(A)(i), (ii)

There are two deportability grounds concerning crimes involving moral turpitude, INA § 237(a)(2)(A)(i) and INA § 237(a)(2)(A)(ii). Both require a conviction, unlike the moral turpitude inadmissibility ground in INA § 212(a)(2)(A)(i)(I) described in Subsection D below. See § 2.2, above for an explanation of what constitutes a conviction for immigration purposes as defined in INA § 101(a)(48)(A). 1. Deportable for one conviction of a CIMT that was committed within five years of admission and that carries a maximum possible sentence of one year or more A noncitizen is deportable for one conviction of a crime involving moral turpitude (“CIMT”) if she committed the offense within five years of her last “admission” to the United States, and if the offense carries a potential sentence of one year. INA § 237(a)(2)(A)(i). a. Convicted of one crime involving moral turpitude Under this deportation ground, there must be one existing conviction for a moral turpitude offense. Counsel should check the person’s criminal record from all jurisdictions. The fact that a noncitizen may have committed, as opposed to been convicted of, more than one moral turpitude offense has no effect on the deportation ground. (It does affect the petty offense exception discussed in the inadmissibility ground discussed below.) A prior moral turpitude conviction that has been vacated will not be counted. b. Maximum possible sentence of one year The statute also provides that the conviction must have a potential sentence of a year or more. Counsel should check to see if the maximum sentence possible under the statute at issue is less than a year so that it does not fall under this ground. Under federal law, as well as the law of several states, a felony offense carries a sentence of more than a year, while a misdemeanor

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offense can carry a sentence of up to a year.96 Therefore, many misdemeanor convictions can trigger this ground of deportability. Example: Marta was admitted to the United States in 2007. In 2010, she committed a theft offense that requires intent to permanently deprive. This is her only CIMT conviction. In this state, misdemeanor grand theft carries a statutory maximum possible sentence of one year; attempted misdemeanor grand theft carries a maximum possible sentence of six months; and “petty theft” also carries a maximum possible sentence of six months.

The states of Washington, Nevada, and California, have changed their state law so that a misdemeanor has a potential sentence of 364 days rather than one year, in order to prevent deportations. In California, this law applies retroactively to all misdemeanors regardless of date received. See Cal. P.C. § 18.5(a) (2017). Advocates in other states are considering pursuing this type of legislation. c. Committed within five years after admission into the United States When does an “admission” occur for purposes of starting the five years? If a person is admitted on a visitor’s visa and later adjusts status, does the five-year clock for the CIMT deportation ground start with the first admission or on the date of adjustment? The BIA clarified this rule in 2011. It held that a CIMT conviction “triggers removability under INA § 237(a)(2)(A)(i) only if the crime was committed within 5 years after the date of the admission by virtue of which the noncitizen was then in the United States.” Matter of Alyazji, 25 I&N Dec. 397, 397-398 (BIA 2011). Specifically, this means that the admission date that starts the five-year period is the date of initial admission for a noncitizen who enters with inspection, e.g., on a tourist visa, unless the person made a more recent “admission” at the U.S. border. The fact that the person later adjusts status does not “re-start” the five years. But if he person never made an admission to the U.S. because she entered without inspection, and later adjusted status to permanent residence, the admission date is the adjustment of status date. Note that Alyazji does not necessarily require that the date of admission be the noncitizen’s first, or even his most recent, admission. But it does mean that there is only one ‘date of admission’ that is relevant to measuring the statutory 5-year period in relation to a particular offense.” Matter of Alyazji, 25 I&N Dec. at 398.

96

See 18 USC § 3559(a) (felony is punished by a sentence of more than a year), California Penal Code §§ 17-19 (same).

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If Marta is convicted of misdemeanor grand theft she will be deportable, because she committed the offense within five years of admission and it has a potential sentence of at least one year. If she is convicted of petty theft or attempted misdemeanor grand theft, she will not be deportable, because neither of these offenses is punishable by a sentence of a year or more. (If Marta had waited until 2013 to commit the offense she would not be deportable regardless of the potential sentence, because the crime would have been committed more than five years after her admission in 2007.)

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For further discussion of this case and examples of its applications, see Chapter 1 and “Practice Advisory: Immigration Authorities Clarify When One Moral Turpitude Conviction Will Make a Lawful Permanent Resident Deportable,” at www.ilrc.org/crimes.

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2. Conviction of two crimes involving moral turpitude after admission that are not part of a single scheme of criminal misconduct A noncitizen is deportable for two or more convictions for crimes involving moral turpitude that occur any time after admission, unless the convictions are “purely political” or arise in a “single scheme of criminal misconduct” (often interpreted to exclude almost anything but two charges from the same incident). INA § 237(a)(2)(A)(ii). Example: Stan was admitted to the U.S. in 2006. He was convicted of assault with a deadly weapon in 2013 and passing a bad check with intent to defraud in 2015. Regardless of the potential or actual imposed sentences, he is deportable for conviction of two moral turpitude offenses since his admission. Example: Joshua entered the U.S. without inspection in 2006. He was convicted of fraud in 2007. In 2010, he underwent consular processing and was admitted to the U.S. as a permanent resident, his first admission. In 2016, he tried to pass a bad check, and was convicted of a misdemeanor. Is he deportable under INA § 237(a)(2)(A)(ii)? No, because even though he has committed two crimes involving moral turpitude, only one was committed after his admission to the U.S., in 2016. Warning: Prior Waived Moral Turpitude Convictions. Immigration practitioners should be aware that moral turpitude convictions that previously were waived can come back to life to cause deportability as one of two convictions of a crime involving moral turpitude. A conviction that has been “excused” by an immigration authority under a previous application for the former § 212(c) waiver, § 240A(a) cancellation of removal, or § 212(h) waiver still can be joined to a new, subsequent conviction and form the basis for deportation under this section. 97 A conviction that has been vacated for cause cannot be used in this way. Example: After admission as a permanent resident, Mr. Khourn was convicted of drug trafficking, which is a crime involving moral turpitude. The conviction was waived under the former § 212(c) relief. He was subsequently convicted of fraud, a second offense involving moral turpitude. Despite the fact that the first conviction had been previously waived, he is deportable for two convictions of crimes involving moral turpitude received since his admission to the United States. 98 Single Scheme of Criminal Misconduct. The convictions must be for two CIMTs “not arising out of a single scheme of criminal misconduct.” The BIA has construed this phrase very narrowly, essentially holding that this exception only applies where the crimes arose out of the same incident. An example of a single scheme is “where a person breaks into a store with the intent to commit

97

Matter of Khourn, 21 I&N Dec. 1041, Int. Dec. 3330 (BIA 1997); Matter of Balderas, Int. Dec. 3159 (BIA 1991); Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993). 98 These are the facts of Matter of Khourn, supra.

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larceny and, in connection with that criminal act, also commits an assault with a deadly weapon.” Matter of Islam, 25 I&N Dec. 637, 640 (BIA 2011). D.

Moral Turpitude Grounds of Inadmissibility, INA § 212(a)(2)(A)

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A noncitizen who has been convicted of one crime involving moral turpitude at any time may be inadmissible. There are two important exceptions to the rule: the petty offense exception and the youthful offender exception.

1. Petty offense exception The “petty offense exception” is a commonly used exception to the moral turpitude ground of inadmissibility. See INA § 212(a)(2)(A)(ii)(II). This is an automatic exception, which does not require the filing of any application or an exercise of positive discretion. A person qualifies for this exception, and therefore is not inadmissible, if three facts are true: • • •

This is the first time the person has committed a crime involving moral turpitude (no conviction is required here); The maximum possible sentence for the offense is one year or less; and The sentence imposed in the person’s case was six months or less. Example: Bonnie and Clyde are arrested. Bonnie is convicted of receiving stolen property as a misdemeanor, which in this state is a CIMT. It has a maximum sentence of one year. This is her first offense. She receives a three-month sentence. Bonnie comes within the petty offense exception since it was her first conviction of a crime involving moral turpitude, the maximum penalty for the offense was not more than a year, and the sentence imposed was not more than six months. She is not inadmissible. Clyde is convicted of robbery, a felony. This is his first offense. The maximum sentence for that crime is five years. No matter what sentence he gets, Clyde cannot qualify for the petty offense exception, since robbery has a maximum possible sentence of five years. Clyde is inadmissible.

Note that the petty offense exception only applies to prevent the person from being inadmissible. It does not apply to the moral turpitude deportation ground. a. Committed only one crime involving moral turpitude If a noncitizen has committed more than one CIMT, he or she will not qualify for the petty offense exception. Where a person has two or more convictions occurring out of different incidents, vacating one of the prior convictions will not restore eligibility for the exception, if the

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PRACTICE TIP: There Are Important Differences between the Inadmissibility and Deportability Grounds Regarding Crimes Involving Moral Turpitude. A person can fall within the inadmissibility ground without a conviction. To fall within the deportation grounds, however, the person must have a conviction(s) after admission. The inadmissibility ground has exceptions—the petty offense and youthful offender exceptions—while the deportability grounds do not. However, counsel should look closely at the deportation grounds to make sure that the government can meet its burden of proof.

government determines that the person actually committed the prior offense.99 The fact that the person committed another offense that does not involve moral turpitude—for example, drunk driving or simple assault—does not preclude eligibility for the exception. 100 Absent a conviction, or admission of commission of a crime involving moral turpitude, there must be a preponderance of the evidence that the person committed the offense.101

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b. Maximum possible sentence of one year or less This is not the sentence that was actually imposed for the offense, but the maximum possible sentence that could have been imposed for the offense. Generally, counsel will have to look at the statute of conviction to determine what maximum possible sentence could have been imposed for the offense. c. Sentence imposed was six months or less The sentence actually imposed must not be greater than six months. Sentence is defined as a term of incarceration or confinement, and does not include probation. See INA § 101(a)(48)(B). If imposition of the sentence is suspended and a judge sentences a noncitizen to jail for five months as a condition of probation, immigration authorities will count the five months as a “sentence” and the noncitizen will meet the petty offense requirement that the sentence imposed was six months or less. If a sentence of a year is imposed but eleven months of the sentence’s execution is suspended, immigration authorities will count the entire year that was imposed, even if the person did not serve time. See § 2.3, above, for further explanation of sentences under immigration law. 2. Youthful offender exception While less commonly used than the petty offense exception, the youthful offender exception can be very helpful to a person who was convicted as an adult for an offense committed while under age 18. A disposition in juvenile delinquency proceedings is not a conviction and has no relevance to moral turpitude determinations. But persons who were convicted as adults for acts they committed while under the age of 18 do have a conviction. A noncitizen who committed only one CIMT, while under the age of 18, ceases to be inadmissible as soon as five years have passed since the conviction or release from resulting imprisonment. INA § 212(a)(2)(A)(ii)(I). Example: Raoul was convicted as an adult for felony assault with a deadly weapon, based on an incident that took place when he was 17. He was sentenced to nine months and was released from imprisonment when he was 18 years old. He now is 26 years old. Unless and until he is convicted of another moral turpitude offense, he is not inadmissible for a crime involving moral turpitude. 3. Inadmissible for making a formal admission of a crime involving moral turpitude A person who formally admits committing a crime involving moral turpitude is inadmissible, even if there is no conviction. INA § 212(a)(2)(A)(i). This must be a formal admission of all the elements 99

Matter of S-R-, 7 I&N Dec. 495 (BIA 1957) (expunged prior conviction). Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003). 101 Matter of S-R-, supra at 499 (finding that a prior conviction that was expunged provided adequate proof of the commission of the offense). 100

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of a crime. See Matter of K, 7 I&N Dec. 594 (BIA 1957). Cases have upheld use of an admission made to a police officer as well as to an immigration officer. The DHS does not often use this ground, but your clients should be warned. If there is any reason to think that a DHS officer may question your client about some specific incident, the client should get a lawyer’s advice and go to the interview with a lawyer. If the person is alone, he or she should refuse to answer questions.

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This ground does not apply to conduct that result in juvenile findings, or conduct committed while someone was a juvenile, because that conduct does not amount to a “crime.” 102

a. Procedural requirements for an effective “admission” Strict rules control what kinds of statements by a non-citizen constitute an “admission” of a crime involving moral turpitude (as well an admission of a controlled substance offense) discussed in § 2.10 below. Failure to conform to these requirements can cause an admission to have no immigration effect. First, the conduct must be a crime under the laws of the place where it was allegedly committed. 105 The person must admit to commission of facts that constitute the essential elements of that offense. General admissions to broad and/or divisible statutes will not qualify. Where the noncitizen does not admit sufficient facts, DHS or consular official cannot use inferences.106 102

Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2000); Matter of C.M., 5 I&N Dec. 327 (BIA 1953). 103 See, e.g., Matter of Seda, 17 I&N Dec. 550 (BIA 1980) (state counterpart of federal first provisions, no conviction); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968) (case placed “on file” under Massachusetts statute); Matter of E.V., 5 I&N Dec. 194 (BIA 1953) (expungement pursuant to California statute); Matter of CYC, 3 I&N Dec. 623 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of G, 1 I&N Dec. 96 (BIA 1942) (dismissal pursuant to Texas statute), but see also Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988)(providing new definition for resolutions not amounting to a conviction). 104 Matter of C.Y.C., 3 I&N Dec. 623, 629 (BIA 1950) (dismissal of charges overcomes independent admission); Matter of E.V., supra, note 6 (expungement under Calif. Penal Code § 1203.4 controls even where admission made to immigration judge). But see Matter of I, 4 I&N Dec. 159 (BIA, AG 1950) (independent admission supports exclusion where alien convicted on same facts of lesser offense not involving moral turpitude.) 105 Matter of R-, 1 I&N Dec. 118 (BIA 1941) (fraud in itself not a crime); Matter of M-, 1 I&N Dec. 229 (BIA 1942) (remarriage not punishable as bigamy); Matter of D-S-, 1 I&N Dec. 553 (BIA 1943) (attempt to smuggle not a crime); 22 CFR § 40.21(a). 106 Matter of B-M-, 6 I&N Dec. 806 (BIA 1955); Matter of A-, 3 I&N Dec. 168 (BIA 1948); Matter of Espinosa, 10 I&N Dec. 98 (BIA, 1962). Matter of G-M-, 7 I&N Dec. 40 (Att’y Gen. 1956); Matter of E-N, 7 I&N Dec. 153 (BIA 1956).

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If the conduct was charged in criminal court but resolved in a disposition that is less than a conviction (e.g., charges dropped, conviction vacated), the person cannot be found inadmissible for admitting the crime. 103 This is true even when the defendant has independently admitted the crime before an immigration officer or immigration judge. 104 However, it is not guaranteed that a noncitizen who is acquitted will be protected from the immigration effect of independent admissions.

However, an otherwise valid admission of a crime will trigger inadmissibility even where the person may have been found not guilty due to an available defense to the crime. 107 Second, the DHS or consular official must provide noncitizen with an understandable definition of the elements of the crime at issue. 108 This “informed admissions” rule is to ensure that noncitizens receive “fair play.” 109 Note, however, that the Ninth Circuit upheld an admission to a medical visa officer, who apparently did not follow this rule. 110

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Third, the noncitizen’s admission must be free and voluntary. 111 In determining whether the offense that the person admitted committing involves moral turpitude, a consular officer must employ moral standards generally prevailing in the U.S. 112 If the client appears to have formally admitted the elements of a crime involving moral turpitude or a drug offense to a police officer, particularly if that offense is not charged, counsel should gather information from the client as to whether the officer explained all of the elements of the offense in an understandable manner before the admission was made and met other immigration requirements for such admissions. § 2.10 Controlled Substance Offenses Drug offenses are treated very seriously under immigration law and have numerous and harsh consequences. Before you concede that your client is inadmissible or deportable for a controlled substance offense, you should be aware that there are several key strategies to argue that an offense is not a controlled substance offense for immigration purposes. These key strategies are summarized in Subsection C below. The controlled substance inadmissibility and deportability grounds are triggered only by substances that are listed in federal drug schedules. If a state offense reaches substances not on the federal schedules, there may be a defense. See Mellouli v. Lynch, 135 S. Ct. 1980 (2015) and Subsection D, below. A.

Overview of Penalties for Drug Offenses 1. Aggravated felony

Under INA § 101(a)(43)(B), a controlled substance offense can be an aggravated felony in either of two ways: (1) if it is an offense that meets the general definition of trafficking, such as sale or possession for sale, or (2) if it is a state offense that is analogous to certain federal felony drug 107

Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). Matter of K-, 9 I&N Dec. 715 (BIA 1962); but compare US ex rel. De La Fuente v. Swing, 239 F. 2d 759 (5th Cir. 1956); Matter of G-M-, 7 I&N Dec. 40, 42 (AG 1956), but see Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 109 Matter of K-, 7 I&N Dec. 594, 597 (BIA 1957). 110 Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). 111 Matter of G-, 6 I&N Dec. 9 (BIA 1953); Matter of G-, 1 I&N Dec. 225 (BIA 1942); Matter of M-C-, 3 I&N Dec. 76 (BIA 1947). 112 22 CFR § 40.21(a). 108

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offenses, even those that do not involve trafficking, such as cultivation or some prescription offenses. There are special rules governing whether a simple possession offense constitutes an aggravated felony. Case law has established that a state possession conviction with no prior drug convictions is not an aggravated felony, unless it is possession of flunitrazepam. Lopez v. Gonzales, 549 U.S. 47 (2006). If someone with a prior conviction for a controlled substance offense is subsequently convicted of a state possession conviction, that subsequent conviction will not be an aggravated felony unless the record of conviction contains a specific finding that the person has a prior drug conviction and is therefore being convicted as a recidivist. 113

a. Conviction of an offense relating to controlled substances There are two grounds of deportability that refer specifically to controlled substances. The first is conviction any time after admission of any offense “relating to” a (federally-defined) controlled substance, or attempt or conspiracy to commit such an offense under INA § 237(a)(2)(B)(i). Note that for this ground, a conviction is necessary. Therefore, juvenile findings, and other dispositions that do not meet the definition of a conviction in INA § 101(a)(48)(A) do not trigger this ground. The conviction also must have occurred after admission. Therefore, pre-admission convictions do not trigger this ground, though they might have made the person inadmissible. This deportability ground includes “any state, federal or foreign law or regulation relating to controlled substances.” Even minor offenses such as being under the influence of drugs, or possessing a small amount of drugs, will make the person deportable. The only exception is someone who has one or more convictions arising from a single incident involving simple possession of 30 grams or less of marijuana, or some closely related offenses such as being under the influence of, or possessing paraphernalia for use with, a small amount of marijuana or hashish. See further discussion of this exception at Subsection C.3, below. b. Drug abuser or addict at any time after admission A noncitizen is deportable if she was a drug addict or abuser at any time after admission into the United States, even if she has overcome the problem. INA § 237(a)(2)(B)(ii). This ground of deportability does not require a conviction. The government must prove deportability by clear and convincing evidence. INA § 240(c)(3). The standard for determining who is a drug abuser or addict is not defined in INA § 237(a)(2)(B)(ii), although it’s possible DHS will use the same standard as the drug abuser or addict health ground of inadmissibility in INA § 212(a)(1)(A)(iv). This statute leaves it to Health and Human Services (HHS) to define drug addict or abuser. An HHS agency, the Center for Disease Control (CDC), has created a definition, which can be found in “Technical Instructions for Medical Examinations of Aliens,” by The Center for Disease Control at www.cdc.gov and 42 CFR §§ 34.2(g) and (h). 113

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010); see also U.S. v. Munoz-Camarena, 631 F.3d 1028, 1029-30 (9th Cir. 2011) (per curiam) (applying Carachuri-Rosendo to the illegal reentry sentencing context).

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2. Deportability grounds

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Drug addiction in the interim Public Health Service (PHS) regulations is defined to include the non-medical use of a controlled substance “which has resulted in physical or psychological dependence.” Drug addict is defined under 42 USC § 201(k) as a person who has “lost the power of self-control” over his or her addiction, or whose habitual drug use poses a threat to public morals, health, safety, or welfare. A “mere user” is not an addict, 114 but conviction for use or a finding of drug abuse carry separate immigration penalties. In practice, however, some consular offices have used an older definition, which is that if the person engaged in more than mere onetime experimentation in the last three years, she is inadmissible for drug abuse. A permanent resident facing removal for drug addiction or abuse should challenge either the regulation or a finding in the case. Noncitizens who contest removability can submit evidence from an independent physician on the issue of drug abuse or addiction. 115 A permanent resident can seek a waiver of deportability for this ground under LPR cancellation of removal. Note that a finding of drug addiction or abuse does not “stop the clock” for establishing seven years of continuous residence after admission for purposes of LPR cancellation of removal, because it is not an offense listed in INA § 212(a)(2). 116 3. Inadmissibility grounds a. Convicted of, or admits committing, an offense relating to a federallydefined controlled substance (including state-legalized marijuana) A noncitizen who admits committing, or is convicted of, an offense “relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC § 802)” or attempt or conspiracy to commit such an offense is inadmissible under INA § 212(a)(2)(A)(i)(II). If the person is inadmissible under this ground, he is not eligible for a waiver of inadmissibility under INA § 212(h) unless the conviction(s) or the conduct admitted to relates to a single incident involving possession of 30 grams or less of marijuana, or the equivalent amount of hashish. 117 In any other case, the person is inadmissible and cannot apply for re-adjustment of status based on a family visa petition as a defense to removal. Some other forms of relief might be available, however, such as LPR Cancellation; see Chapters 4 and 5. i.

Admitting commission of a controlled substance offense

This ground of inadmissibility applies even if the person was never charged or convicted of the crime. Warn your clients that if they admit to drug use they can be found inadmissible, even without an arrest or conviction. There must be a formal admission to trigger this ground, where the immigration official states all of the elements of the offense. (However, the Ninth Circuit upheld an inadmissibility charge based on an immigrant’s statements at a consular medical 114

See In re KCB, 6 I&N Dec. 374 (BIA 1954) (holding that conviction for use or under the influence does not necessarily show addiction). 115 See Matter of FSC, 8 I&N Dec. 108 (BIA 1958) (a noncitizen’s admission of addiction was held to be not sufficient when contradicted by two physician’s opinions and repudiated by the alien). 116 See Chapter 4, § 4.4, Subsection B. Drug addiction or abuse is listed at IAN § 212(a)(1), not (2). 117 Thirty grams or less of marijuana has been defined to include being under the influence of marijuana, and possession or being under the influence of hashish. See Chapter 6, § 6.2, Subsection B.

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appointment.) 118 In addition, if charges on the conduct were brought before a criminal court and resulted in less than a conviction, the person cannot be held inadmissible for admitting the conduct, either due to a guilty plea or due to an admission to the immigration official. 119

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See further discussion of requirements for admitting conduct at § 2.9.D.3, above. If a DHS officer or any other person asks a client if he or she has ever committed a drug offense, the client should stop the interview and ask to speak with a lawyer. Be sure to warn them about the possible consequence of admitting drug use at a visa medical appointment. Warn clients that any admission of a crime might be used against them. Medical and legalized marijuana

Ironically, noncitizens who live in states that make it legal to possess and use marijuana for medical and/or recreational purposes face an increased immigration risk. They may reasonably believe that because possession of marijuana is permitted under state law, it is safe to possess and use it, and to admit this conduct to an immigration official. This is not safe. Possession of a small amount of marijuana still is a federal offense—even if it is legal under state law. Admitting this conduct to an immigration official can make the person inadmissible under the controlled substance ground. Further, while in the past immigration officials rarely charged inadmissibility based on the person’s admission of a drug offense absent a conviction, the situation may be changing. There are several recent reports of immigration officials asking specific questions about marijuana use, specifically to residents of states where marijuana use is legal. How can this be an immigration problem? To be inadmissible, a noncitizen must formally admit to conduct that is considered a crime in the jurisdiction where the act was committed. If a state legalizes possession of marijuana, the conduct is not a crime under state jurisdiction. The problem is that possession of marijuana remains a crime under federal law—even if the conduct takes place in a private home and not on federal property. 120 This is increasingly charged as a ground of inadmissibility. Again, the inadmissibility finding was not based on the fact that she had committed a federal drug offense, but on the fact that she formally admitted to an immigration official that she had committed such an offense. In a recent case, USCIS officials in Seattle denied a naturalization application where the permanent resident admitted to legal use of marijuana. The denial was based on the applicant’s failure to establish good moral character under 8 CFR § 316.10(b)(2)(iv). Advocates should warn all non-citizens, including permanent residents, about this risk. Best practices for all non-citizens include the following: •

Do not use recreational marijuana until you are a U.S. citizen, even if that conduct is legal under the law of your state. Do not use medical marijuana unless there a real

118

Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002). See, e.g., Matter of E.V., 5 I&N Dec. 194 (BIA 1953); Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968) Matter of Seda, 17 I&N Dec. 550 (BIA 1980). 120 See Gonzales v. Raich, 545 U.S. 1 (2005). 119

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medical need and no good alternative treatment. In that case, consult with a legal adviser. Do not work in a marijuana shop. •

Never carry marijuana, a medical marijuana card, paraphernalia, or marijuana “accessories” like stickers or T-shirts. Don’t have photos or text concerning you and marijuana use on your phone, on social media, or anywhere else. (In fact, it is good practice not to bring one’s regular phone, which contains contact information, photos, and other data, when traveling outside the U.S. Consider bringing a substitute.) If discovered, this could prompt aggressive questioning.

•

If an immigration official asks you if you have possessed marijuana, decline to answer. Stop the interview and say you want to speak to an attorney. Try to stay strong and remain silent, because once you admit to marijuana use, that bell cannot be un-rung.

•

Traveling outside the U.S. after using marijuana carries risks. Permanent residents may be able to re-enter by simply declining to answer questions (see below), but it still is a risk. An admission of possessing 30 grams or less of marijuana on a single occasion should be waivable under INA § 212(h), just as a conviction would. See Chapter 6 on § 212(h) relief.

Unfortunately, many permanent residents already have possessed and used marijuana in the belief that this would not create any immigration problems because it was legal under state law. Admitting to an immigration official that they used marijuana can harm a permanent resident in at least four contexts: return from a trip abroad; application for adjustment of status as a defense to removal; application for LPR cancellation; and application for naturalization. Return from a Trip Abroad. A permanent resident who is returning from a trip abroad is in a relatively strong position. If the person declines to answer any questions about marijuana use, her silence should protect her. This is because a returning permanent resident is deemed not to be seeking a new admission, and thus not to be subject to grounds of inadmissibility, unless officials can prove that she comes within an exception listed at INA § 101(a)(13)(C). One of these exceptions is that the resident has “committed an offense identified in” INA § 212(a)(2). INA § 101(a)(13)(C)(v). To come within this exception, the permanent resident must have been convicted of, or formally admitted committing, a qualifying offense 121 such as possession of marijuana. If the permanent resident was not convicted, and if she declines to admit to the conduct, authorities cannot prove that she comes within the exception and is seeking admission, and she should be permitted to enter. But if instead the person formally admits to a border official that she has possessed marijuana, authorities may charge that she comes within § 101(a)(13)(C)(v), that she is inadmissible under the controlled substance ground, and that she must be granted some waiver of the inadmissibility ground—such as under LPR cancellation or § 212(h), if she is eligible—in order to be admitted into the United States. See Chapter 1 for more information about returning LPRs. 121

See, e.g., Vartelas v. Holder, 132 S. Ct. 1479, 1492, n. 11 (2012) (“The entire § 1101(a)(13)(C)(v) phrase ‘committed an offense identified in section 1182(a)(2),’ on straightforward reading, appears to advert to a lawful permanent resident who has been convicted of an offense under § 1182(a)(2) (or admits to one).”)

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Adjustment of Status. A permanent resident who applies for adjustment of status as a defense to removal is in a more difficult situation. A refusal to answer questions about marijuana may result in the denial of the application for failure to prosecute. A response that admits possessing marijuana will likely result in a permanent determination of inadmissibility with no option for adjustment. (Or, if the only admitted conduct is a single incident involving possession of 30 grams or less of marijuana, the person may be eligible to apply for a § 212(h) waiver. See Chapter 6, § 6.2.)

Immigration judges have ruled differently as to how admission of prior conduct involving marijuana affects the seven-year clock. In removal proceedings in Seattle, a person who was deportable based on a conviction of a non-marijuana offense was held ineligible for LPR cancellation because he admitted that he had possessed marijuana several years earlier, at a time before he had accrued the seven years. The IJ held that this long-ago conduct stopped the clock under § 240A(d)(1), because he admitted to a federal drug offense that is referred to in INA § 212(a)(2), which made him inadmissible under § 212(a)(2). 123 In removal proceedings in Chicago, however, advocates successfully argued that if the person is charged with deportability in removal proceedings, then under INA § 240A(d)(1) the seven years stops only if she commits an offense that is referred to in § 212(a)(2) and that also makes her deportable, as opposed to inadmissible, under the crimes grounds. 124 The respondent was charged with being deportable for a non-marijuana offense. The government asserted that an earlier single conviction for possessing 30 grams or less of marijuana stopped the seven-year clock. The IJ disagreed, holding that while the marijuana conviction was referred to in § 212(a)(2), it did not also make the person deportable under § 237(a)(2) (due to the automatic exception in the deportation ground for conviction relating to a single incident involving a small amount of marijuana); it only made him inadmissible under § 212(a)(2). Therefore it did not stop the clock 122

The seven years also cease to accrue when the person is served a Notice to Appear. See INA § 240A(d)(1). 123 Thanks to Matt Adams for this information. The court held that as long as the offense is referred to in INA 212(a)(2), the seven-year clock will stop regardless of whether it causes inadmissibility or deportability. In contrast, see analysis in next footnote. 124 Thanks to Maria Baldini Potermin for this information. See INA 237(a)(2)(B)(i). Therefore, admitting possessing marijuana is an offense referred to in § 212(a)(2), but it does not make the person deportable under § 237(a)(2) and thus does not stop the seven-year clock where removal proceedings are predicated on a charge of deportability.

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LPR Cancellation. A permanent resident who applies for LPR cancellation should be advised that admitting having possessed marijuana in the past may affect the accrual of the required seven years of residence. To qualify for LPR cancellation, a permanent resident must have resided in the U.S. for seven years, starting from the date of first admission, and ending (in some cases) 122 “when the alien has committed an offense referred to in [INA § 212(a)(2)] that renders the alien inadmissible to the United States under [INA § 212(a)(2)] or removable from the United States under [INA § 237(a)(2) or (a)(4)].” In other words, under this section the clock stops if the offense meets two requirements. First, it must be referred to in § 212(a)(2). Second, it also must make the person inadmissible or deportable under the crimes or terrorism grounds. See INA § 240A(d)(1) and see discussion of the residence requirement for cancellation in Chapter 5.

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under § 240A(d)(1). This argument also works where the person only admitted marijuana use, and is charged with deportability (for some other offense). See Chapter 5. Naturalization. A permanent resident who applies for naturalization must establish a certain period of good moral character. Being inadmissible under INA § 212(a)(2) is a statutory bar to establishing good moral character if it occurred during the period for which good moral character must be shown. INA § 101(f)(3). As stated above, Seattle officials denied a naturalization application where the permanent resident admitted to legal use of marijuana, where the incident had not been brought before a court. The remedy was to start the period of good moral character over and not use marijuana during it, and then re-apply. A waiver of inadmissibility may be available if the admitted conduct was a single incident involving use, possession, or possession of paraphernalia relating to 30 grams or less of marijuana. See INA § 212(h), 8 USC § 1182(h). b. Current drug abuser or addict Conduct can cause inadmissibility even absent a conviction. A noncitizen who is a “current” drug addict or abuser is inadmissible. INA § 212(a)(1)(A)(iv). “Current” drug abuse or addiction includes any use in the past three years. See further discussion in Subsection A.2.b, above. c. Reason to believe the person engaged or assisted in drug trafficking A noncitizen is inadmissible if immigration authorities have probative and substantial “reason to believe” that she ever has been or assisted a drug trafficker in trafficking activities, or if she is the spouse or child of a trafficker who benefited from the trafficking within the last five years. INA § 212(a)(2)(C). A conviction is not necessary, but a conviction or substantial underlying evidence showing sale or offer to sell will alert immigration officials and serve as reason to believe. Because “reason to believe” does not depend upon proof by conviction, the government is not limited to the record of conviction and may seek out police or probation reports or use defendant’s out-of-court statements. This is a very serious ground that cannot be waived, and it applies to juveniles as well as adults. The standard of “reason to believe” is lower than that required for an admission to an offense. For instance, someone whom USCIS believes dealt drugs in the past, even as a juvenile and without a conviction, could be found inadmissible. USCIS, however, must have more than a mere suspicion—they must have “reasonable, substantial, and probative evidence,” that the person engaged in drug trafficking. 125 This means that an arrest or charge of drug trafficking by itself should not suffice as substantial evidence to prove inadmissibility under “reason to believe.” The government must support the charge with other evidence such as a police report or other

125

Matter of Rico, 16 I&N Dec. 181, 185-86 (BIA 1977); Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). See also Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1349-50 reh’g denied, 409 F. App’x. 314 (11th Cir. 2010) (vague arrest reports and vacated guilty plea were not sufficiently reasonable, substantial, and probative); Matter of Favela, 16 I&N Dec. 753, 756 (BIA 1979).

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documentation of the drug trafficking, testimony from police, detectives, or other officers, or admissions from the person himself. 126 Convictions for straight possession, being under the influence, or possession of paraphernalia etc. do not necessarily give the government “reason to believe” the person has engaged in trafficking (unless it involved a suspiciously large amount). B.

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Controlled Substance Aggravated Felonies

Under this definition, a state controlled substance conviction can qualify as an aggravated felony in either of two ways. First, it may constitute “illicit trafficking” as it is generally defined, for example sale or possession for sale of a controlled substance. Second, the state offense may be a “drug trafficking crime” even if it does not actually involve trafficking, as long as it is exactly analogous to an offense listed in the federal statute. Simple possession is in some circumstances such an offense. In order to be an aggravated felony, this type of offense must be a “felony” under the appropriate test. What this test is, and in what legal context, has been the subject of much litigation and changing rules. 1. Illicit trafficking offenses A drug trafficking aggravated felony includes conviction of “illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act).” 128 The BIA defined trafficking as “the unlawful trading or dealing of any controlled substance.” Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). The Board has explained that the concept of “trafficking” includes, at its essence, a “business or merchant nature, the trading or dealing in goods.” State, federal, and qualifying foreign felony offenses that meet the common definition of “illicit

126

Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1349-50 reh’g denied, 409 F. App’x. 314 (11th Cir. 2010) (vague arrest reports and vacated guilty plea were not sufficiently reasonable, substantial, and probative); Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1211 (9th Cir. 2004) (finding sufficient reason to believe the alien had committed illegal acts underlying previous drug trafficking arrest because the government submitted documents describing the police surveillance of the person and the person’s subsequent attempt to escape with 147 pounds of marijuana); Rojas-Garcia v. Ashcroft, 339 F.3d 814 (9th Cir. 2003)(in addition to a previous arrest for drug trafficking, two undercover detectives testified that they had personally arranged drug deals with the petitioner); Matter of Favela, 16 I&N Dec. 753, 756 (BIA 1979)(applicant admitted to participating in an attempt to smuggle a kilogram of marijuana into the United States); Matter of Rico, supra (BIA did not rest on evidence of arrest for drug trafficking, but testimony of the Border Patrol Agent and the Customs Inspector that he frequently drove the car in which 162 pounds of marijuana was found as well as testimony of special agents of the Drug Enforcement Administration in the investigation of the incident). 127 INA § 101(a)(43)(B). This definition was added by the Anti-Drug Abuse Act of 1986. 128 INA § 101(a)(43) as amended by IA90 501 and MTINA 306(a)(1).

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The aggravated felony definition includes, “… any illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code).” 127

trafficking” will be held to be aggravated felonies regardless of whether they are exactly analogous to the designated federal laws.129

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A conviction of sale or possession for sale of a federally defined controlled substance in any state will be held to be an aggravated felony as an offense that meets the generally-understood definition of drug trafficking. Possession with intent to sell, because it contains a trafficking element, will also be an aggravated felony. 130 Manufacture, importation, and exportation are other types of offenses that will constitute drug trafficking. The Ninth Circuit held that offering (solicitation) to sell a controlled substance is not an aggravated felony drug trafficking offense. 131 This rule has not been applied elsewhere. Transportation for personal use should not be held an aggravated felony because it does not involve trafficking and is not analogous to a listed federal offense. 132 a. Felony/misdemeanor classification To be an aggravated felony as an offense that meets the general definition of illicit trafficking, the Board of Immigration Appeals in Matter of Davis held that a state drug conviction must be a felony under the law of the convicting jurisdiction, i.e., the state. 133 This is a different test than that used in determining whether an offense is a felony and therefore an aggravated felony under the “federal analogue” prong of the aggravated felony definition, which is discussed in the next section below. In the “federal analogue” cases, extensive litigation culminated in the Supreme Court holding in Lopez v. Gonzales that the standard is whether the offense would be classified as a felony under federal law, and not the convicting jurisdiction. While having two different tests for a felony might be justified based on the different statutory language employed in the two

129

See Matter of Davis, 20 I&N Dec. 536 (BIA 1992). The common understanding of the word trafficking includes a commercial element. Some examples of trafficking include sale, manufacture, importation, and exportation. The Supreme Court stated that illicit trafficking “ordinarily … means some sort of commercial dealing.” Lopez v. Gonzales, 549 U.S. 47 (2006). 130 Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008) (However the statute in question, Kansas Stat. Ann. § 65-4163(a), was not categorically an aggravated felony because it could have been committed by “offering.”) 131 The Ninth Circuit held that “generic solicitation” (i.e., solicitation to commit any offense) is not a drug trafficking aggravated felony or a deportable controlled substance offense, even when the offense solicited involves drug trafficking. See United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)(en banc), (superseded on other grounds as applied to federal prosecutions by U.S.S.G. § 2L1.2 CIMT. n. 4 (2002), as recognized in United States v. Narvaez-Gomez, 489 F.3d 970, 977 (9th Cir. 2007), and Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir 1997).) However, a conviction under a statute that criminalizes solicitation of a drug offense will trigger deportability and inadmissibility as an offense “relating to a controlled substance.” See Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009) (Calif. H&S § 11352(a)); Guerrero-Silva v. Holder, 599 F.3d 1090 (9th Cir. 2010) (H&S § 11361(b)); Hernandez-Aguilar v. Holder, 594 F.3d 1069 (9th Cir. 2010) (H&S § 11379(a)). Moreover, a conviction of offering to sell still leaves the defendant vulnerable because the government will charge that it has “reason to believe” the person has been a drug trafficker. 132 See discussion in United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir. 1999). 133 Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992).

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prongs of the aggravated felony definition, it also may be that the 1992 Davis decision will be revisited in light of Lopez. In any event, most offenses that meet the general definition of “illicit trafficking” also will qualify as aggravated felonies under the “federal analogue test” and thereby could be designated aggravated felonies under that felony/misdemeanor standard as well. See the discussion below.

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b. “Federal analogues”: Simple possession and other offenses that do not involve trafficking

• • • • • • •

Possession with a recidivist sentence enhancement 135 Possession of flunitrazepam 136 Distribution without remuneration (other than distributing a small amount of marijuana) 137 Manufacture, sale, cultivation, or importation of a controlled substance (including cultivating marijuana for personal use) 138 Maintaining a place where controlled substances are sold 139 Sale of drug paraphernalia 140 and Obtaining a controlled substance with a false prescription. 141

134

INA § 101(a)(43)(B) defines as an aggravated felony conviction “any drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code).” Section 924(c)(2) reads, “For purposes of this subsection, the term ‘drug trafficking crime’ means any felony punishable under the Controlled Substances Act, 21 USC § 801, et seq., the Controlled Substances Import and Export Act, 21 USC § 951, et seq., and the Maritime Drug Law Enforcement Act, 46 USC App. § 1901, et seq.” See also Matter of Barrett, 20 I&N Dec. 171 (BIA 1990); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). Under Matter of Barrett, to be an aggravated felony the offense must include “all of the elements of an offense for which an alien ‘could be convicted and punished’ under the cited federal laws.” 20 I&N Dec. at 174. 135 See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). 136 See discussion in Subsection i, below. 137 See discussion in Moncrieffe v. Holder,133 S. Ct. 1678, 1684 (2013). 138 Regarding cultivation of marijuana as an analogue to 21 USC § 841(a)(1), (b)(1)(D), see, e.g., discussion in U.S. v. Reveles-Espinoza, 522 F.3d 1044 (9th Cir. 2008). 139 This may be an analogue to 21 USC § 1856. See, e.g., Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th Cir. 2006). That case acknowledged that a federal controlled substance must be involved, but did not discuss whether the state conviction involved a federal substance. This is a requirement now. See discussion in Mellouli v. Lynch, 135 S. Ct. 1980 (2015). 140 This may be an analogue to 21 USC § 863(a). 141 This may be an analogue to 21 USC § 843(a)(3).

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A state drug conviction can be an aggravated felony even if it does not involve what is generally considered to be drug trafficking, if the offense is exactly analogous to a federal drug felony cited in the aggravated felony definition. 134 Carefully examine state convictions for the following offenses, to see if the elements are analogous to federal felonies:

In the Ninth Circuit only, conviction of solicitation (offering) to commit the above offenses or drug trafficking has been held not to be an aggravated felony. 142 The next sections discuss more about simple possession, and the effect of post-conviction relief. 2. Simple possession or less In 2006, the U.S. Supreme Court held in Lopez v. Gonzales 143 that a state offense is an aggravated felony if it is analogous to designated federal felonies, as opposed to federal misdemeanors. That provides some clarity as to which minor non-trafficking offenses are aggravated felonies.

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1. A state conviction for most minor offenses that do not amount to possession—such as possessing paraphernalia or being under the influence—is not an aggravated felony. These offenses are not “drug trafficking” aggravated felonies because they do not meet either prong of the definition: they do not meet the general definition of trafficking, and they are not analogous to a federal drug felony. Still, any offense “relating to” a federally-defined controlled substance will make the person inadmissible or deportable. See INA §§ 212(a)(2)(A), 237(a)(2)(B)(ii). The deportation ground contains an automatic exception for conviction/s arising from a single incident involving simple possession of less than 30 grams of marijuana or hashish. That offense does trigger inadmissibility, but it may be waivable under INA § 212(h). See Chapter 6, 6.2. 2. A first state conviction for simple possession is not an aggravated felony. This is because a federal first conviction for simple possession is only a misdemeanor. Lopez v. Gonzales, supra. The only exception is if the substance possessed was flunitrazepam (a date-rape drug). Because that offense is punished as a felony under federal law, a state conviction is an aggravated felony. The same used to be true of possession of more than five grams of cocaine base, but that changed when Congress made the federal offense a misdemeanor. 144 3. A second state conviction for simple possession is not an aggravated felony unless a recidivist sentence was imposed based upon a finding that the person had a prior drug conviction. Under the federal Controlled Substance Act, a possession conviction is punishable as a felony only if the prosecutor proves the existence of a prior conviction before trial or a guilty plea. In Carachuri-Rosendo v. Holder, 145 the Supreme Court therefore held that, at a minimum, the record of conviction must contain a finding that the prosecutor proved

142

U.S. v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc). Lopez v. Gonzales, 549 U.S. 47 (2006). 144 See discussion of flunitrazepam and cocaine base in Lopez, supra at 59. After Lopez was published, the Fair Sentencing Act, Pub. L. 111-220 (August, 3, 2010) amended 21 USC § 844(a) by deleting the language that made a conviction for simple possession of more than five grams of crack cocaine a felony, so that the offense now is a federal misdemeanor. Therefore a state analogous is not an aggravated felony. 145 Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). 143

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the prior drug conviction for recidivist sentence enhancement purposes, in order for the second conviction to be an aggravated felony. 4. Check to see if post-conviction relief will eliminate the conviction, or if no conviction even came into being.

5. If the record of conviction does not identify the specific controlled substance, the state conviction might not be an aggravated felony, or even a deportable or inadmissible offense. A conviction for any drug related offense may not be a controlled substance offense for immigration purposes, since it must be a federally-defined controlled substance offense in order to trigger the controlled substance inadmissibility and/or deportability grounds. Therefore, where the substance is not named, it is neither an aggravated felony nor a deportable or inadmissible drug conviction. See Subsection C below. Case Examples. These examples illustrate the rules under Lopez v. Gonzales and Carachuri v. Holder. Example 1: Sam is convicted of felony simple possession of heroin in state court, his first controlled substance offense. Aggravated felony? This is not an aggravated felony under Lopez v. Gonzales. No simple possession conviction without drug priors is an aggravated felony, other than possession of flunitrazepam (because that is the only simple possession offense that federal law punishes as a felony). Deportable/Inadmissible? Yes, as a conviction of an offense relating to a federallydefined controlled substance, it makes Sam deportable and inadmissible. Example 2: Esteban participated in a pre-trial diversion program in 1995, where he did not admit any guilt. After he completed the program requirements, the charges were dropped. Aggravated felony? No. Because there was no plea or finding of guilt, this is not a conviction at all for immigration purposes. Deportable/Inadmissible? This is not a conviction, and so would not be a deportable or inadmissible drug conviction. Also, because the drug charge against Esteban was brought to criminal court and resulted in less than a conviction, he cannot be charged with being inadmissible for admitting that he committed a drug offense, if he ever does admit it. See Subsection 3.a, above. Example 3: Linda is convicted of being under the influence of an unidentified “controlled substance,” her first drug conviction ever.

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See § 2.2, above. Recall that generally, a conviction is eliminated for immigration purposes only if it is vacated for legal error. An exception, which applies only to immigration proceedings that arise within the Ninth Circuit, is that certain possession convictions from on or before July 14, 2011 can be eliminated by rehabilitative relief, under Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc).

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Aggravated felony? No. This does not involve trafficking and there is no federal analogous offense.

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Deportable/Inadmissible? That depends. To prove deportability, ICE must prove under the categorical approach that the conviction related to a federally-defined controlled substance. If the state drug schedules contain one or more substances not on the federal schedules, ICE will need to do work. First it will need to prove that the state drug offenses are “divisible” between the different substances. Then it will need to produce a record of conviction that shows that this particular offense involved a federally-defined substance. See §§ 2.4, 2.5 on the categorical approach. Example 4: Francois is convicted of possession for sale of marijuana. Aggravated felony? Yes. Possession for sale of a federally-defined substance such as marijuana is an aggravated felony. However, if this particular state statute includes giving away a small amount of marijuana (which is not an aggravated felony), and the statute is not divisible between possession for sale and giving away a small amount, the conviction would not be an aggravated felony. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). Deportable and inadmissible? Yes. C.

Defense Strategies against Controlled Substance Charges in Removal Proceedings

A noncitizen who can come within the following categories may avoid becoming deportable, and in some cases avoid becoming inadmissible, for a controlled substance conviction. These safe havens also avoid the aggravated felony designation. 1. “Relating to” a controlled substance: accessory after the fact and other offenses not primarily directed at controlling drugs a. Accessory after the fact and similar crimes An individual commits accessory after the fact or misprision of felony when she acts in some way to help a criminal (the “principal”) avoid the criminal justice system. Courts and the BIA have found that accessory after the fact and misprision do not take on the character of the principal’s offense. Instead, they are offenses relating to law enforcement and apprehension of criminals. 146 Therefore, a conviction is not a controlled substance offense for immigration purposes even if the principal committed a controlled substance offense, and it does not make the noncitizen deportable or inadmissible for having a drug conviction. The same argument can be made for

146

Castaneda de Esper v. INS, 557 F.2d 79, 83-84 (6th Cir. 1977), Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (misprision of felony not a controlled substance offense). Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (accessory after the fact is not an offense “relating to controlled substances” but is an aggravated felony as obstruction of justice if a one-year sentence is imposed); Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999) (misprision is not a controlled substance offense and also not an aggravated felony as obstruction of justice even if a one-year sentence is imposed); but see Denis v. Attorney Gen. of U.S., 633 F.3d 201, 206 (3rd Cir. 2011)(declining to defer to the BIA’s analysis in Espinoza and ruling that tampering with physical evidence under NYPL § 215.40(2) was an aggravated felony as an offense relating to obstruction of justice with a one-year sentence imposed).

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similar offenses, such as tampering with evidence. Immigration counsel may argue that any offense not found in the controlled substance section of a code should not be classified as an offense “relating to” controlled substances.

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While this is very good news for avoiding immigration consequences for a controlled substance offense, accessory after the fact and similar offenses may have other immigration consequences, discussed here.

Authorities are split as to what the definition of “an offense relating to obstruction of justice” is, and which accessory-type offenses come within it and thus are potentially aggravated felonies. Two issues are whether the definition requires a specific intent to hinder, and/or an ongoing criminal case against the principal. Regarding intent to hinder, the BIA found that accessory after the fact under 18 USC § 3 is an offense “relating to obstruction of justice,” while misprision of felony under 18 USC § 4 is not.147 The Board found that federal accessory after the fact requires “an affirmative action knowingly undertaken ‘in order to hinder or prevent [the principal’s] apprehension, trial or punishment.’” In contrast, it found that nothing in the federal misprision statute “references the specific purpose for which concealment must be undertaken.” 148 Counsel should check the law in the governing circuit to see if federal courts accept this distinction. 149 Regarding an ongoing case, the BIA clarified earlier decisions and held that obstruction of justice does not require the existence of an ongoing criminal investigation or trial, but can include helping the principal to escape from initial arrest (i.e., at a time before any process had begun). The Board found that accessory after the fact under California Penal Code § 32 is obstruction of justice even though it reaches intent to help a principal escape from “arrest, trial, conviction or punishment” (emphasis supplied). The Board summarized that a crime relates to obstruction of justice “if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice,” but that “interference with an ongoing criminal investigation or trial … is not an essential element.” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012). On appeal, the Ninth Circuit disagreed with the Board’s ruling that obstruction of justice does not require interference with an ongoing criminal proceeding or investigation. The court found that 147

Matter of Batista-Hernandez, supra (accessory after the fact under 18 USC 3 is obstruction of justice); Matter of Espinoza, supra (misprision of felony under 18 USC 4 is not); see also United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007). 148 Matter of Espinoza, at 894, cited in Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012). 149 Compare, e.g., Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011) (noting distinction between Batista and Espinoza, and applying Espinoza to hold that Washington “rendering criminal assistance” offense was not categorically an obstruction-of-justice offense) and Denis v. Attorney Gen. of U.S., 633 F.3d 201, 206 (3rd Cir. 2011)(declining to defer to the BIA’s analysis in Espinoza and ruling that tampering with physical evidence under NYPL § 215.40(2) is an aggravated felony as an offense relating to obstruction of justice with a one-year sentence imposed).

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Aggravated Felony. An offense “relating to obstruction of justice” is an aggravated felony, but only if a sentence of a year or more is imposed. INA 101(a)(43)(S). If a lesser sentence was imposed it is not an aggravated felony.

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this definition differed from the BIA’s prior interpretations of the aggravated felony provision. Further, it held that this definition raised Fifth Amendment concerns about unconstitutional vagueness, because an unpredictable variety of specific intent crimes could fall within the BIA’s expanded definition. Therefore it declined to defer to the Board and remanded the case, instructing the Board to decide accordingly. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 811 (9th Cir. 2016). Note that under administrative law principles, the BIA can and probably will continue to apply the precedent decision in Matter of Valenzuela-Gallardo in cases that arise outside of the Ninth Circuit—despite the fact that Mr. Valenzuela-Gallardo’s own case was reversed. Advocates outside of the Ninth Circuit must research the law in their circuit and if needed litigate the issue. Crime Involving Moral Turpitude. The BIA has held that accessory after the fact is a crime involving moral turpitude if the principal’s offense involved moral turpitude. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). Where this rule is employed, the categorical approach might provide a defense. Depending on the accessory statute, counsel may be able to argue that specific crime committed by the principal is not an “element” of the accessory offense, in that a jury would be able to convict a defendant of being an accessory even if it disagreed as to the specific crime the principal had committed. See discussion of the categorical approach at § 2.4. Before Rivens, a different Board panel held that misprision of felony is categorically a crime involving moral turpitude. Matter of Robles-Urrea, 24 I&N 22 (BIA 2006). Rivens did not address that opinion. Federal courts are split on these issues, and counsel should research the law in the circuit governing your case. The Ninth Circuit found that California accessory after the fact and federal misprision of felony are categorically not crimes involving moral turpitude. 150 The Second Circuit remanded a case to the BIA with a request for the Board to publish a new opinion in light of conflicting authority. 151 “Reason to Believe” Drug Trafficking. Depending on the facts, there is some chance that the government will assert that the act of hiding a drug trafficker after he has completed the trafficking is aiding or colluding in the trafficking. This inadmissibility ground is based on conduct, so the government is not limited to looking at facts in the record of conviction. Because this is a ground of inadmissibility with no analogous deportation ground, this will only be an issue for an LPR where she must overcome inadmissibility, for example upon return from a trip abroad or in applying for some relief from removal. See discussion on “reason to believe trafficking” above in Subsection A. b. Other offenses where the primary purpose is not to control illegal drugs A criminal statute that “does not by its language indicate [that] it was contemplated to be” a controlled substance law, and historically has constituted a “criminal offense separate and distinct from the [underlying] felony” is not a law relating to a controlled substance for immigration 150

Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) (Cal. Penal Code § 32, accessory after the fact); Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (18 USC 4, misprision of felony). 151 See discussion in Lugo v. Holder, 783 F.3d 119 (2nd Cir. 2015).

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purposes. This principle was originally articulated in the Sixth Circuit case Castaneda de Esper, which held that misprision of felony was not a deportable drug offense. 152 The principle has been adopted by the BIA and federal courts, in some cases for offenses that go beyond accessory and misprision. The BIA found that a federal conviction for unlawfully carrying a firearm during the commission of a felony was not a deportable controlled substance offense, even though the underlying felony involved a controlled substance. 153

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2. Disposition that does not identify a federally-defined controlled substance

This disparity can give rise to important defenses. If a state controlled substance statute is overbroad and the record of conviction does not identify which controlled substance was involved, there is no proof that the substance in the conviction was one that is on the federal list. Therefore, there is no proof that the offense “related to” a federally-defined controlled substance, and the person is not deportable. The entire record of conviction must be vague as to the substance, in order for this to work; see § 2.5. See Matter of Paulus, 11 I&N Dec. 274 (BIA 1965) and the Supreme Court opinion, Mellouli v. Lynch, 135 S. Ct. 1980 (2015). Furthermore, in cases where the statute is found to be “indivisible,” it may be that no conviction under the statute is a deportable or inadmissible drug offense—regardless of what the person’s record of conviction reveals. This section will discuss these defenses. Note that this rule applies to any type of controlled substance offense. The BIA held for some time that for certain offenses, such as possession of paraphernalia, there was no requirement to show that a federally-defined controlled substance was involved. 154 The Supreme Court abrogated that in Mellouli v. Lynch, supra, when it held that the Mr. Mellouli’s Kansas conviction for possession of paraphernalia was not a deportable controlled substance offense under the categorical approach, because the vague record of conviction failed to identify a federally-defined controlled substance. In Mellouli, the Supreme Court again affirmed that the categorical approach applies in determining whether a conviction is of a deportable offense. This discussion requires some knowledge of the categorical approach; please review the discussion at § 2.4, if needed. In sum, the categorical approach divides criminal statutes into two types, “divisible” and “indivisible.” If a state statute (here, a state drug schedule) reaches some conduct that is not included in the federal “generic” definition in the removal ground (here, the federal drug schedules), then the 152

See Castaneda de Esper, supra. Matter of Carrillo, 16 I&N Dec. 625, 626-627 (BIA 1978) (citing Castaneda de Esper, the court held that conviction of the federal offense of unlawful carrying of a firearm during commission of a felony was not a drug offense even when the underlying felony was identified in the record of conviction as possession with intent to distribute heroin). 154 Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). 153

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For immigration purposes, a controlled substance (illegal drug) is defined by federal drug schedules (lists of controlled substances), located at 21 USC § 802. Many states have state drug schedules, or lists of controlled substances, that are slightly different from the federal list, and that may contain one or more substances not on the federal list. The first step in this defense is to ascertain whether your state statute reaches any substances on the federal list. If it does, your state statute is “overbroad” compared to the federal definition.

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state statute is “overbroad.” If the overbroad statute is indivisible, then no conviction under the statute ever triggers the removal ground (here, no conviction under the state statute would be a deportable or inadmissible drug offense). This is true regardless of what facts appear in the person’s conviction record or what facts she admits. But if instead the overbroad statute is divisible, then under the so-called modified categorical approach, the IJ can make a limited review of the person’s record of conviction to see if it establishes that the person was convicted of a removable offense (here, to see if the record shows the conviction was for a substance that also appears on the federal schedule). In Mellouli, Mr. Mellouli did not assert that the Kansas statute in his case was indivisible as to different substances. Therefore the Court stated that it would assume the state was divisible, and it looked to his record of conviction under the modified categorical approach. Mellouli, n 4. Because the record of conviction did not identify which substance was used, Mr. Mellouli was found not deportable. Essentially the Court set out the rule that if at the time of the conviction,155 the state statute was overbroad because it listed one or more non-federally-defined substances; and if the state statute was divisible; and if the reviewable record of conviction did not conclusively identify a specific federally-defined substance; then there is not a deportable conviction under the controlled substance ground. For further discussion of Mellouli, see online Advisory. 156 In other cases, advocates may assert that an overbroad state drug statute is indivisible as to the different substances. 157 As discussed in § 2.4, the test for this is: If a jury could find the defendant guilty despite the fact that it did not unanimously choose between statutory alternatives, then the statute is indivisible. (Don’t give up here; wait for the Example.) If a statute is overbroad and indivisible, the immigrant wins big. The IJ may not look to her record of conviction. Instead, the IJ must find that no conviction under the statute meets the federal definition (here, no conviction under the state is a deportable or inadmissible drug conviction). Example: Karma was convicted of possessing a controlled substance under a state statute. The statute defined “controlled substance” in State Schedule II. State Schedule II lists “Substances A, B, or C.” At the time of Karma’s plea, Substances A and B also appeared on federal schedules, but Substance C did not. Therefore the state drug schedule was “overbroad” compared to the federal drug schedule. Unfortunately, Karma pled guilty to possessing Substance A, which is a federally-defined substance. She should have a defense, however. Under the law of her state, if Karma had gone to trial she could have been found guilty even if her jury had split as to the substance—for example, if eight jurors found she used Substance B and four found substance C. That means that the state schedule is indivisible as to those substances. (The Supreme Court’s

155

See Mellouli v. Lynch, 135 S. Ct. 1980, 1988 (2015). (“At the time of Mellouli’s conviction, Kansas’ schedules included at least nine substances not on the federal lists.”) 156 Go to www.immigrantdefenseproject.org/wp-content/uploads/2015/06/Mellouli-Advisory-6-8-15FINAL.pdf. 157 The Ninth Circuit held that a California drug offense is divisible for this purpose (Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014), but the court will reconsider the issue in an en banc hearing, in U.S. v. Martinez-Lopez (No. 14-50014).

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reasoning is that, if a jury does not have to agree unanimously between statutory alternatives, those alternatives are not truly “elements” of the offense.) Because the statute is overbroad and indivisible, no conviction under the state statute is a deportable or inadmissible drug conviction. Despite her guilty plea, Karma is not deportable or inadmissible for a drug conviction.

Another opportunity is if the statutory definition, by reference to drug schedules, includes dozens or hundreds of substances. Arguably, at least where deportability is at issue it is the government’s burden to establish that each of those substances actually appears in the referenced federal schedules. 159 Let’s consider the least less beneficial situation. If instead all of the substances listed in the state drug statute (including the referenced drug schedule, if any) also appear on federal schedules, this defense is not available. The state statute is not overbroad compared with the federal definition; instead, it is a categorical match. In that case, every conviction under the statute is a deportable and inadmissible drug conviction. Example: Marcie was convicted of a state statute that prohibited “possession of heroin, methamphetamines, or marijuana.” All of those substances appear on the federal schedule, so every conviction under the state statute necessarily involved a federallydefined substance. The government does not have to present Marcie’s record of conviction. It can meet its burden just by proving that she was convicted under that statute, and by showing that all substances listed there appear on federal schedules. 3. Possession of thirty grams or less, or being under the influence of, marijuana or hashish Conviction/s that arise from “a single offense involving possession for one’s own use of thirty grams or less of marijuana” have advantages under immigration law. The noncitizen comes within an automatic exception to the controlled substance deportation ground. INA § 237(a)(2)(B)(i). If otherwise qualified, an inadmissible noncitizen can apply for a discretionary waiver of inadmissibility under INA § 212(h). It appears that the deportation ground exception 158

See discussion of Descamps v. U.S., 133 S.Ct. 2276 (2013) (“entry” is not a divisible term) at § 2.4. But in the context of a motion to reopen the burden may be on the noncitizen. See Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000) (in context of an untimely motion to reopen, where the applicant must show “exceptional circumstances,” she has the burden of showing that the state offense is not located on the federal list. “The current posture of this case is critical to our decision. Were this case now before us on direct appeal, we might be inclined to remand for a further hearing.”) 159

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If a state statute does not refer to any particular drug schedule, there may be a good defense. Some offenses include a single, broad term like a “drug,” not linked to any statutory definition that is phrased in the alternative. A single term never is divisible. 158 In that case, if the advocate can produce a case showing that the statute ever has been used to prosecute a non-federallydefined substance, then the statute is overbroad and indivisible, and no one convicted under it has a deportable of inadmissible conviction. (For example, some state DUI statutes prohibit driving under the influence of a “drug,” and have been used to prosecute drivers who are using an overthe-counter drug that causes dangerous drowsiness.)

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and the waiver of inadmissibility under § INA 212(h) employ the same definition for which offenses qualify, although the burden of proof may be different. For further discussion of the 30 grams of marijuana category, in the context of a § 212(h) waiver, see Chapter 6, § 6.2.B. In Matter of Davey, 26 I&N 37 (BIA 2012), the BIA held that the amount of marijuana is proved not under the categorical approach, but in a circumstance-specific inquiry that can consider relevant evidence from outside the record. The BIA held that a person convicted of more than one statutory crime may be covered by the exception if all the person’s crimes were closely related to or connected with a single incident in which the person possessed 30 grams or less of marijuana for his or her own use, provided that none of those crimes was inherently more serious than simple possession. In Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014), the BIA reaffirmed the rule in Davey and found it was not implicitly reversed by the Supreme Court in Moncrieffe v. Holder, supra. The BIA rejected the respondent’s argument that the minimum prosecuted conduct test must apply, and therefore because a statute prohibiting possession of “more than an ounce” (i.e., more than 28.5 grams) of marijuana, had been used to prosecuted less than 30 grams, the conviction was not a deportable controlled substance offense. Instead the BIA reaffirmed that the circumstance-specific test applies to the amount of marijuana. It remanded to the immigration judge so that DHS could “proffer any evidence that is reliable and probative” to prove that the amount was over 30 grams, and the respondent would have a reasonable opportunity to challenge or rebut the evidence. Dominguez-Rodriguez, supra at 414. A record simply showing conviction of a statute that prohibits possession of more than an ounce of marijuana, without more, does not prove the government’s case, since an ounce is 28.5 grams. If the conviction is old so that there are no records, it may be that your client’s credible testimony about the amount will be the only evidence. Note, however, that some advocates assert that the 30 grams exception should be evaluated using the regular categorical approach, not the circumstance-specific approach. See discussion of the circumstance specific approach at § 2.6, above. This exception reaches some other offenses that are very similar to simple possession of marijuana. The General Counsel of the INS 160 ruled that conviction of simple possession of 30 grams or less of hashish or other cannabis products comes within the marijuana exception to the deportation ground, and can be waived under INA § 212(h). In the context of the § 212(h) waiver, however, the General Counsel recommended that authorities deny a waiver to someone who possessed an amount of hashish equivalent to more than 30 grams of marijuana leaves. 161 160

Before immigration duties were given to various agencies within DHS, the Immigration and Naturalization Service (INS) handled both adjudication and enforcement within the U.S. 161 “So long as the facts of a case satisfy the other requirements of section 212(h), you may properly interpret section 212(h) as giving you the authority to grant a waiver to an alien whose conviction was for the simple possession of 30 grams or less of any cannabis product that is within the definition found in 21 USC § 802(16). Absent some unusual circumstances, however, we recommend that you limit your discretion in section 212(h) cases so that a section 212(h) waiver will be denied in most cases in which the alien possessed an amount of marijuana, other than leaves, that is the equivalent of more than 30 grams of

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The exception also includes a conviction for possession of drug paraphernalia, where the drug involved was 30 grams or less of marijuana. Matter of Martinez-Espinoza, 25 I&N Dec. 118, 125 (BIA 2009); Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008). The Ninth circuit held that it extends to convictions or admissions of being under the influence of marijuana. 162

The BIA has ruled that a conviction for a small amount of marijuana under a statute that has as an element that such possession be in prison or other correctional setting (in this case, Calif. Penal Code § 4573.6), does not come within the beneficial exception. 164 Immigration counsel may want to challenge this on the grounds that the BIA’s decision goes beyond the plain statutory language and is only weakly supported by the cited legislative history. 4. Dispositions that are not “convictions”: Juvenile delinquency, cases on appeal, pre-plea and deferred prosecution dispositions, and infractions Section 2.2, above, discusses the immigration definition of “conviction” and the dispositions that are not included in that definition. If a disposition is not a conviction, it does not constitute an aggravated felony conviction and cannot trigger deportability or inadmissibility as a controlled substance conviction. As we discussed, delinquency dispositions are not convictions. Counsel should look out for state dispositions handled under pre-trial drug court programs, which may not involve a guilty plea. However, advocates should evaluate any other admissions or evidence that may give the government the ability to penalize the noncitizen under the conduct grounds (drug abuse and addiction, “reason to believe” trafficking), etc. discussed in § 2.2, above. PRACTICE TIP: Any Conviction—Even of a Drug Offense—May Be Vacated or Erased; This Requires the Help of a Post-Conviction Attorney. Most courts will find that a conviction that is vacated for cause (because of legal error in the conviction) no longer exists for immigration purposes. For example, your client might have been wrongly convicted or not have been afforded all of his rights during the criminal process. Convictions are invalid when a person’s constitutional or other legal rights are violated. In particular, counsel may want to explore whether the client received marijuana leaves under the Federal Sentencing Guidelines, 18 USC App. 4.”) See INS General Counsel Legal Opinion 96-3 (April 23, 1996), withdrawing previous INS General Counsel Legal Opinion 92-47 (August 9, 1992). See also 21 USC § 802(16), defining marijuana to include all parts of the Cannabis plant, including hashish. 162 Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993). 163 Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005). 164 Matter of Moncada-Servellon, 24 I&N Dec. 62 (BIA 2007). The BIA noted that “[a] conviction for possession of a small amount of marijuana in or near a school could raise similar issues.” MoncadaServellon, at 65, n3.

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Because DHS acknowledged that hashish is in the same category as marijuana for purposes of this exception, being under the influence of hashish also should get the benefit. The Ninth Circuit held that conviction for having attempted to be under the influence of tetrahydrocannabinol (THC)-carboxylic acid in violation of Nev. Rev. Stat. § 193.330 and Nev. Rev. Stat. § 453.411 also comes within this exception, where the government failed to establish that the conviction was for “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” 163

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ineffective assistance of counsel due to failure of criminal defense counsel to advise him or her regarding the immigration consequences of a criminal disposition. In 2010, the U.S. Supreme Court in Padilla v. Kentucky, 533 U.S. 289 (2010) held that it violates the Sixth Amendment of the U.S. Constitution for defense counsel to fail to competently and affirmatively advise a noncitizen defendant regarding such consequences. In many post-conviction cases, federal and state laws may allow for the conviction to be vacated.165 It is important to investigate this option early on in the case and not wait until other options are exhausted because there are certain time limits for filing postconviction motions and post-conviction relief takes some time to complete. § 2.11 Domestic Violence, Child Abuse, Prostitution A.

Domestic Violence and Child Abuse Deportability Ground

A noncitizen is deportable if, after admission to the United States, he or she is convicted of a crime of domestic violence, of stalking, or of a crime of child abuse, neglect, or abandonment. The person also is deportable if found in civil or criminal court to have violated certain sections of a domestic violence protective order. INA § 237(a)(2)(E). The convictions, or the behavior that is the subject of the finding of violation of a protective order, must have occurred after admission, and on or after September 30, 1996. 166 A conviction under foreign law is not listed here, and is therefore not included as a ground of deportation. 1. Conviction of a crime of domestic violence A noncitizen is deportable for a “crime of domestic violence” conviction occurring after admission and on or after September 30, 1996. Section 237(a)(2)(E)(i) defines a “crime of domestic violence” as follows: “For purposes of this clause, the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic violence or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from the individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.” Therefore, a deportable “crime of domestic violence” is a technically-defined “crime of violence” committed against a person with whom the defendant shares a certain kind of domestic relationship. The statute defines this relationship to include certain specific relationships, as well as anyone who is protected under an applicable state, local, federal, tribal, domestic, or family violence law. Because the definition incorporates local domestic violence laws, you will need to consult the relevant laws to see what other victims may be included. For example, because 165

See Chapter 8 of ILRC’s Publication: Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (www.ilrc.org) and Norton Tooby’s publication: Post-Conviction Relief for Immigrants (www.nortontooby.com) for a more detailed discussion of this topic. 166 IIRIRA § 350.

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California domestic violence laws protect persons with whom one had just a dating but not a cohabiting relationship, conviction of a qualifying a crime of violence against a current or former date can form a basis for deportation under the domestic violence ground.

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This ground includes offenses where the domestic relationship is an element of the offense, as well as offenses without such an element, as long as there is sufficient proof that the victim and defendant actually had the required domestic relationship. As discussed in Subsection b.ii below, the BIA and some federal courts have held that ICE may use evidence from outside the record of conviction to prove the relationship. As long as the noncitizen pled to an offense that either is not a crime of violence or that was committed against a victim that does not have the required domestic relationship, the offense cannot be termed a crime of domestic violence. Counsel may argue that the conviction at issue (a) is not a “crime of violence” under 18 USC § 16, and/or (b) the victim is a specific person who does not have a qualifying domestic relationship to the defendant, and/or (c) it is a property offense such as vandalism, not a crime against a person. i.

Not a crime of violence

Counsel should determine whether the offense at issue meets the definition of a crime of violence set forth in 18 USC § 16. The categorical approach applies to determining whether an offense is a crime of violence under 18 USC § 16. See, e.g., Matter of Chairez-Castrejon, I&N Dec. 819, 821 (BIA 2016). The Supreme Court held that under 18 USC § 16(a), a crime of violence must have as an element the attempted, actual, or threatened use of intentional, violent, physical force. Negligent conduct, and conduct that merely caused injury without intentional violent force, is not sufficient. Section § 16(b) would require the inherent risk that this type of force would be used. See Leocal v. Ashcroft, 125 S.Ct. 377 (U.S. 2004), but see further discussion of 18 USC § 16(b), below. The Supreme Court held that an offensive touching is not a “crime of violence,” 167 which is consistent with Board of Immigration Appeals cases. 168 Counsel should check the statute at issue to see if it can be committed by a mere offensive touching. If so, then no offense under the statute should be a crime of violence, because the minimum conduct to commit the offense is not. See discussion of the minimum conduct rule in the categorical approach at § 2.4. Example: Jack is an LPR who is married to Jill. They got into an argument and Jack hit Jill. Jack is arrested and charged with misdemeanor spousal battery, an offense that can be committed by a mere offensive touching (although Jack’s conduct went beyond that). He pleads guilty. The records show that he actually hit Jill.

167

Johnson v. United States, 130 S. Ct. 1265 (2010). See, e.g., Matter of Sanudo, 23 I&N Dec. 968 (BIA 2006) (spousal battery under Cal PC § 243(e) is not categorically a crime of violence because it can be committed with de minimis force).

168

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a. Defense strategies

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Jack is not deportable under INA § 237(a)(2)(E)(i). Because the minimum conduct required for guilt is an offensive touching, 169 no conviction of the offense is a crime of violence. Therefore the conviction is not a crime of domestic violence. Another part of the definition of a crime of violence, 18 USC § 16(b), applies only to felonies. That section provides that a felony offense that “by its nature, involves a substantial risk” that violent force will be used, is a crime of violence. However, the Supreme Court held that an almost identically worded federal statute is void for vagueness. 170 At this writing the Court is deciding whether 18 USC § 16(b) is void for vagueness as well. 171 In addition, the Supreme Court found that a similarly worded but distinct federal definition of crime of violence includes certain reckless actions as well as intentional ones. 172 ICE might argue that certain conduct involving recklessness also should be held to come within 18 USC § 16. Because the law in this area is volatile, in order to determine if a particular offense is considered a crime of violence, counsels should get expert advice or do a careful analysis of the statute, considering recent cases. ii. Not a protected domestic relationship In order to be a crime of domestic violence, the crime of violence must be directed against a protected person as defined at INA 237(a)(2)(E)(i), e.g., a current or former spouse or co-parent of a child, or any other individual protected under applicable domestic violence or family laws. In analyzing a potential domestic violence offense from any state, one should research exactly what relationships are protected under the state’s domestic violence laws. Counsel should determine whether the offense was committed against a victim who does not have one of the designated domestic relationships. In that case, even if the offense is a crime of violence, it will not be a crime of domestic violence. Example: Karen is under a protective order not to approach her ex-husband, Robert. She gets in a fight with Robert and his date, and pleads guilty to assault with a deadly weapon against the date. The offense is a crime of violence under 18 USC § 16. But because an ex-spouse’s date is not a relationship that is listed in the deportation ground, or protected under the state’s domestic violence laws, the conviction is not a deportable crime of domestic violence. (Because it is assault with a deadly weapon it may well be a crime involving moral turpitude, but that is another matter.) The categorical approach applies to determining whether an offense is a ‘crime of violence,” but it is not clear that it applies to determining whether the victim and defendant shared a protected relationship for a deportable crime of domestic violence. The BIA held that the domestic

169

This example assumes that the spousal battery statute is not “divisible” under recent Supreme Court precedent. Most battery statutes are not, even if they use the phrase “force or violence.” See Johnson, supra. But if a battery statute enumerates potentially meaningful distinctions, for example “intentionally or recklessly” using force, you should analyze whether the offense is divisible under the categorical approach. See Matter of Chairez-Castrejon, I&N Dec. 819 (BIA 2016). 170 See Johnson v. United States, 135 S.Ct. 2551 (2015). For further discussion of Johnson, see Practice Advisories at www.nipnlg.org and www.ilrc.org/crimes. 171 The Court accepted certiorari in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (holding that 18 USC § 16(b) is void for vagueness, under the Court’s 2015 decision in Johnson). 172 Voisine v. United States, 136 S.Ct. 386 (2016).

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relationship is a “circumstance specific” factor that can be proved using any reliable evidence, including evidence from outside the record of conviction. Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016). This already was the rule in immigration proceedings in several circuits. The Ninth Circuit has employed a different rule: the domestic relationship does not need to be an element of the offense, but it can be proved only with conclusive evidence found in the reviewable record of conviction. See, e.g., Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). However, advocates in the Ninth Circuit should be prepared for possible change. See Practice Advisory on Matter of H. Estrada at www.ilrc.org/crimes, and discussion of the circumstance specific approach at § 2.6. Against property rather than a person

Where the offense was a crime of violence committed against property as opposed to a person, it also should not be a deportable crime of domestic violence under the wording of INA 237(a)(2)(E)(i), which requires a crime of violence committed “against a person.” Thus a conviction for vandalism or other property crime, even if it is held a crime of violence, should not be a deportable crime of domestic violence. PRACTICE TIP: A crime of domestic violence may trigger more than one deportation ground. For example, it may be a crime involving moral turpitude. In particular, any conviction of a crime of violence under 18 USC § 16 is an aggravated felony, if a sentence of a year or more was imposed. See § 2.8 and INA § 101(a)(43)(F). Be sure to analyze your client’s criminal record carefully, bearing in mind all the potential grounds of deportability that could apply to a particular offense. 2. Judicial finding of a violation of a domestic violence protective order Section 237(a)(2)(E)(ii) provides: (ii)Violators of protection orders Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding. In sum, a civil or criminal court finding that a noncitizen violated the part of a domestic violence protection order that is designed to protect against threats of violence, repeated harassment, or bodily injury, will serve as a basis for deportation. However, the conduct violating the order must have occurred after admission and after September 30, 1996. Any judicial finding of a violation of a domestic violence “stay-away” order is likely to be held a basis for deportability—even if the violation involved minor, non-malicious conduct. In many cases after a domestic disturbance, a court will issue a so-called “stay-away” order that requires the subject, e.g., to keep 100 feet away from the other person, to not have any telephone contact,

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etc. This may appear in a formal protective order or as a condition of probation after conviction of some offense.

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A judicial finding that even the most minor behavior constituted a violation of the stay-away order might be a basis for deportation. In Matter of Strydom, 173 the BIA cited approvingly to a Ninth Circuit case where the violation consisted of walking a child partway up a driveway after a visit, instead of letting the child off at the curb. The reasoning is that it is sufficient that the conduct violates the part of the order that is designed to protect against violence or repeat harassment, even if the conduct itself did not include violence or repeat harassment. Because this is a deportation ground, the government has the burden of proof. The categorical approach should be held to apply, 174 so the government will have to prove, by clear and convincing evidence, first that the protective order was a domestic violence protective order, and second that a court found that the portion prohibiting repeated harassment, threats, or injury was violated. Note that some states permit a protection order to include sections that relate to child support, court costs and attorney fees, and compensation for lost earnings; a finding that this section was violated would not trigger removal. 175 This also should apply to requirements of anger management or domestic violence counseling. 176 Example: Edward got into a fight with an acquaintance, Mike. Mike is afraid of Edward, so he got a court to issue an injunction and stay-away order against Edward. A court found that Edward violated the order by telephoning Mike. Is Edward deportable? No. This is a violation of a stay-away order, but it is not a domestic violence protective order and so it does not come within § 237(a)(2)(E)(i). Example: Julia and Maria are married. After a fight, Julia gets a temporary restraining order against Maria that requires Maria to do two things: attend anger management classes and stay 500 feet away from Julia. A court will make a finding that Maria violated this protective order. For immigration purposes, does it matter what conduct the court cites? It might make a big difference. At least one court has opined that failure to attend anger management classes would not have this result. 177 (Although anger management training in general is related to reducing violence and harassment, this would appear to be an overly broad reading of the deportation ground.) But even safer would be if Maria were found to have failed to comply with a provision relating to paying child or spousal support or visitation, restitution for damages or other events. Example: Harvey is charged in criminal court with misdemeanor violation of a family court order because he approached his ex-wife. He pleads not guilty to that charge, and 173

25 I&N Dec. 507, 510 (BIA 2011), citing to Szalai v. Holder, 572 F.3d 975 (9th Cir. 2009). For example, the Ninth Circuit held that the categorical approach applies to this ground. See AlanisAlvarado v. Holder, 558 F.3d 833, 836-837 (9th Cir. 2009), amending, with the same result, 541 F.3d 966 (9th Cir. 2008). 175 See, e.g., discussion in Alanis-Alvarado v. Holder, 558 F.3d at 839. 176 See, e.g., discussion in Szalai v. Holder, 572 F.3d at 980. 177 See Szalai, supra. 174

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pleads guilty to a different charge such as disturbing the peace or simple battery. While there is no case on point, under the plain language of § 237(a)(2)(E)(ii) statute he should not be found deportable, because the court did not make a finding that he violated the order.

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Note that this ground does not require a criminal conviction. A civil finding by a family court or arguably even a delinquency court will suffice. 3. Crime of child abuse, neglect, or abandonment

a. Definition of child abuse, neglect, or abandonment Unfortunately, the BIA has declined to provide a specific definition of child abuse, reasoning that there are too many different types of state endangerment-type child abuse statutes for such a definition. 178 Instead, it has stated that it will analyze such child endangerment statutes on a stateby-state basis. This makes it difficult to predict which state offenses will or will not be held deportable, and requires you to carefully compare the statutes that the BIA has discussed, with the statute at issue in your case. In its first decision on the subject, the BIA defined “child abuse” as any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that results in the maltreatment of a minor or that impairs the minor’s physical or mental well-being. Matter of Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008). This includes offenses involving infliction of physical, mental, or emotional harm, direct acts of sexual contact, and any act that involves the use or exploitation of a minor, such as inducing him or her to engage in sexually explicit acts or to commit serious crimes, such as drug trafficking. This ground of deportation is not limited to parents or guardians committing the acts of abuse, but includes anyone who commits a child abuse offense. Matter of Velazquez-Herrera at 513. The BIA held that federal courts owe deference to this definition. 179 Because the BIA definition is so broad, many offenses against children could fall within the term “child abuse.” In fact, the BIA held that the “definition is comprehensive enough to subsume most, if not all, crimes of ‘child neglect.’” Matter of Velazquez-Herrera at 512. In a subsequent decision, the BIA affirmed that the definition provided in Matter of Velazquez encompasses a crime of child abuse, neglect, and abandonment. Matter of Soram, 25 I&N Dec. 378 (BIA 2010). In Matter of Soram, the BIA held that a Colorado statute that punishes a person who “permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health” is a crime of child abuse. In so doing, the BIA stated that it found “no convincing reason to limit offenses under section 237(a)(2)(E) of the Act to those requiring proof of actual harm or 178

Matter of Soram, 25 I&N Dec. 378 (BIA 2010). The BIA found that the term “crime of child abuse” is ambiguous and that it is the BIA’s duty to “resolve any ambiguities and fill any statutory gaps.” It found it significant that in the same deportation ground, Congress defined “crime of domestic violence” with great specificity but left “crime of child abuse” undefined. Matter of Velazquez-Herrera, at 507-8. 179

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A noncitizen is deportable if, after admission and on or after September 30, 1996, he or she is convicted of a “crime of child abuse, child neglect, or child abandonment.” INA § 237(a)(2)(E)(i).

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injury to the child.” Matter of Soram, at 381. The BIA found that the Colorado child endangerment statute fit within the statutory definition of child abuse as an “act or omission that constitutes maltreatment of a child,” and that it required a knowing or reckless mental state, which is sufficient, under Matter of Velazquez-Herrera, to fit within the definition of child abuse. In Soram, the BIA focused on the state court’s interpretation of the “threat of injury” language in the Colorado statute, reasoning that the offense required “at least a reasonable probability that the child’s life or health will be endangered.” Matter of Soram, 25 I&N Dec. at 385 (emphasis in original). The BIA observed that “Colorado courts have repeatedly emphasized the importance of the word ‘unreasonably,’ finding it to be synonymous with acting ‘without justifiable excuse.’” The risk of harm covered in this Colorado statute, therefore, was deemed sufficient. In Matter of Mendoz-Osorio, 26 I&N Dec. 703, 710 (BIA 2016), the BIA again returned to the definition and contrasted child endangerment statutes from New York and California. It held that the child endangerment statute at New York Penal Code § 260.10(1), which prohibits “knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of a child,” is categorically a crime of child abuse, whereas the child endangerment statute at California Penal Code § 273a(b), which prohibits placing a child “in a situation where his or her person or health may be endangered,” is not categorically a crime of child abuse (emphasis supplied.) See Mendoza-Osorio at 704-711. Describing why Cal. P.C. § 273a(b) is not a crime of child abuse, the BIA relied on the Ninth Circuit’s analysis of that offense in Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009)]. The Board found that the California statute does not “require that the circumstances create any particular likelihood of harm to a child” and punishes “conduct that creates only the bare potential for nonserious harm to a child.” Id. at 1037-38. In this regard, [Fregozo] cited as an example of facts that did not meet our definition of child abuse the case of a parent “placing an unattended infant in the middle of a tall bed without a railing, even though the child was never injured.” Id. Based on the facts as construed by the court, we would agree that they do not, alone, define a crime of child abuse or neglect. Mendoza-Osorio, 23 I&N Dec. at 710. Advocates might also explore arguments contesting the BIA’s definition of child abuse. See, for example, the concurrent opinion by Board member Filippu in Matter of Soram, arguing that the generic definition of “child endangerment” requires a custodial relationship, 180 in contrast to the holding in Velazquez-Herrera, which found that the generic definition of child abuse is not limited to offenses committed by parents or those acting in loco parentis. 181 Note, however, that the courts may be likely to defer to the BIA for this definition. 182

180

25 I&N Dec. at 388. Matter of Velazquez-Herrera, at 513. 182 See, e.g., Fregozo v. Holder, 576 F.3d 1030, 1037-38 (9th Cir. 2009) (stating that federal courts should extend Chevron deference to the BIA on this matter). 181

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b. Age-neutral offenses (which do not have a minor victim as an element)

This holding should be deemed overturned, because it violates subsequent Supreme Court precedent governing the categorical approach. The phrase “crime of child abuse” is a generic definition that is subject to the categorical approach, not the circumstance-specific approach. 183 Using the categorical approach, an offense would have to have a minor victim as an element, in order for it to be a crime of child abuse. See §§ 2.4–2.6. Counsel should argue that no age-neutral statue can cause deportability under this ground, and appeal any ruling to the contrary. As a back-up argument, however, counsel also can argue in the alternative that the record of conviction in the particular case does not conclusively prove that the victim was under age 18. The Velazquez-Herrera opinion, at 516-17, presents a good example of this analysis. 4. Conviction for stalking A noncitizen who, after admission to the United States and on or after September 30, 1996, was convicted of “a crime of stalking,” is deportable under the domestic violence ground. INA § 237(a)(2)(E)(i). Unlike the domestic violence and child abuse provisions, this ground of deportation, does not seem to require that that it be committed against a protected victim. At least one court has held that the stalking provision is not unconstitutionally vague on its face or as applied. Arriaga v. Mukasey, 521 F.3d 219 (2nd Cir. 2008). The BIA set out a generic definition of stalking for purposes of INA § 237(a)(2)(E)(i), in Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012). The Board found that California Penal Code § 646.9 is categorically a deportable stalking offense, because it contains the following elements: “(1) conduct that was engaged in on more than a single occasion, (2) which was directed at a specific individual,

183

The BIA acknowledged that “crime of child abuse” should be subject to the categorical approach in Velazquez-Herrera, at 514-15. (The Board also found that it must apply that approach in the instant case, since it originated in the Ninth Circuit. Id.) This is consistent with Supreme Court factors setting out when an offense is subject to the categorical rather than the circumstance-specific approach. See discussion at § 2.6. Also, in Nijhawan, the Supreme Court stated that the similar phrase “sexual abuse of a minor” is “one of several aggravated felony offenses that ‘must refer to generic crimes.’” Nijhawan v. Holder, 557 U.S. 29, 36 (2009).

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In Matter of Velazquez-Herrera, supra, the BIA held that although the term “crime of child abuse” is subject to the categorical approach, it can include an offense that does not have any element relating to age of the victim, as long as documents reviewable under the modified categorical analysis conclusively prove that the victim was a child. Under this reasoning, conviction of a violent offense that applies to victims regardless of age—e.g., a regular assault or battery statute—will be a deportable “crime of child abuse” if the record establishes that the victim is a minor, even though that fact was not required for guilt. In Velazquez-Herrera, the Board held that the conviction under a general Washington assault statute could have been held a crime of child abuse, but was not because the record of conviction in the case did not conclusively prove that the victim was under age 18.

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(3) with the intent to cause that individual or a member of his or her immediate family to be placed in fear of bodily injury or death,” and (4) either the individual was actually placed in fear of injury or death, or a reasonable person under the circumstances would have been, or both.”

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In regards to the fourth element, the BIA found it unnecessary to decide the particulars of the element because the California (and federal) stalking statute required that both the subjective and objective requirement be met for a conviction. § 2.12 Ground of Inadmissibility for Prostitution and Commercialized Vice A.

Prostitution

A noncitizen is inadmissible, but not deportable, if he or she comes to the United States to engage in prostitution or has “engaged in prostitution” within the last ten years. INA § 212(a)(2)(D)(i). No conviction is required. This ground includes prostitutes and people who work with them in the business, but not customers. Matter of R.M., 7 I&N Dec. 392 (BIA 1957). This provision will apply even if the person engaged in prostitution in a country where it is legal. 22 CFR § 40.24(c). A single act of prostitution does not trigger this ground. Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008); Matter of T-, 6 I&N Dec. 474 (BIA 1955). Rather, “prostitution” is defined as engaging in a pattern or practice of sexual intercourse for financial or other material gain. 184 Engaging in prostitution does not encompass sexual conduct that falls short of intercourse, such as engaging in “lewd acts for a fee” where lewd acts includes conduct other than intercourse. 185 A noncitizen is also inadmissible, but not deportable, if he or she attempts to procure or import prostitutes, or receive the proceeds of prostitution. INA § 212(a)(2)(D)(ii). Solicitation of a prostitute by a customer does not fall within ground of inadmissibility for procuring a prostitute. This ground only applies to persons who engage in the business of obtaining prostitutes for use by others, not to isolated incidents of people hiring a prostitute. Matter of Gonzalez-Zoquiapan, above. Other Consequences of Prostitution. Prostitution is a crime involving moral turpitude, whether lewd acts or intercourse is involved. The Board has noted that it has not addressed the question of whether hiring a prostitute is a crime involving moral turpitude, Matter of Gonzalez-Zoquiapan, above, but the Ninth Circuit has held that it is,186 and in some areas DHS is charging this. Conviction of some offenses involving running prostitution or other sex-related businesses are aggravated felonies. See INA § 101(a)(43)(I), (K). A noncitizen is deportable who has been 184

Matter of Gonzalez-Zoquiapan, supra. See also State Department regulations at 22 CFR § 40.24(b) which defines prostitution as “engaging in promiscuous sexual intercourse for hire …” that “must be based on elements of continuity and regularity, indicating a pattern of behavior of deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.” 185 Matter of Gonzalez-Zoquiapan, supra. See also Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (holding that prostitution for immigration purposes only encompasses offering sexual intercourse for a fee, as opposed to other sexual conduct). 186 Rohit v. Holder, 670 F.3d 1085 (9th Cir. 2012).

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convicted of importing noncitizens for prostitution or any immoral purpose. INA § 237(a)(2)(D)(iv). Relief. Persons inadmissible under this section can apply for a waiver under INA § 212(h), without the requirement of showing extreme hardship to a relative. Like other removal grounds, prostitution also can be waived with § 212(c) relief or LPR cancellation. See Chapters 4, 5, 6. Noncitizen victims of alien smuggling who were forced into prostitution, or who are victims of any serious crimes, may be able to apply for temporary and ultimately permanent status under the “T” or “U” visas. See INA § 101(a)(15)(T), (U). Commercialized Vice

INA § 212(a)(2)(D) also bars admission to anyone coming to the United States to engage in “unlawful commercialized vice,” a term which is not defined, but would include, for example, illegal gambling. § 2.13 Firearms Offenses A.

The Firearms Deportability Ground

A noncitizen is deportable if at any time after admission into the United States he is “convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing or carrying or of attempting or conspiring to [commit these acts] in violation of any law, any weapon, part or accessory which is a firearm or destructive device (as defined in [18 USC § 921(a)]).” INA § 237(a)(C). Under 18 USC § 921(a), “firearm” includes guns or firearms, frames and receivers, and silencers. (It does not include antique firearms, however, which gives rise to a widely available defense; see Subsection C.) “Destructive device” includes objects such as bombs, grenades, rockets, or similar devices, or parts used to convert or create firearms or destructive devices. Conviction of an offense as minor as possession of an unregistered weapon can trigger deportability. B.

Firearms Offenses as Aggravated Felonies

Any offense involving trafficking in firearms and destructive devices is an aggravated felony. INA § 101(a)(43)(C). Any state offense that is an analogue to certain designated federal firearms offenses is an aggravated felony, even if it does not involve trafficking. INA § 101(a)(43)(E). A common state offense that is potentially analogous to a federal offense, and therefore is potentially an aggravated felony, is conviction of possession of a firearm by certain categories of persons, for example by a felon, addict, or undocumented immigrant. 187 See 18 USC § 922(g)(1)–(5), referenced in INA § 101(a)(43)(E). To see if a state offense is an aggravated felony, compare the elements of the state statute at issue with the elements of the federal offenses listed at 18 USC § 922(g)(1)–(5). That statute provides:

187

See, e.g., United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001)(finding Calif. PC § 12021(a)(1) an aggravated felony).

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(g) It shall be unlawful for any person [to own a firearm] -(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 USC 802); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (5) who, being an alien-(A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 USC 1101(a)(26)) All of the above conditions must be elements of the state offense. An element is a fact that is required for guilt in every case. For example, if the state offense does not have as an element that the defendant must be an undocumented person, the offense is not an aggravated felony just because the defendant, in fact, happens to be undocumented. Example: Martin is an undocumented person who is convicted of a state statute that prohibits “possession of a firearm by any person previously convicted of a misdemeanor.” In Martin’s state, a misdemeanor is punishable by a maximum one-year sentence. Martin is not convicted of a firearms aggravated felony. First, the offense does not involve trafficking. Second, the offense is not an analogue to a designated federal firearms offense. It is not an analogue to 18 USC § 922(g)(1) (possession by a felon), because the state statute does not require the person to have been previously convicted of an offense with a maximum possible sentence of over a year. It is not an analogue to 18 USC § 922(g)(5) (possession by a noncitizen in unlawful status). While Martin happens to be undocumented, unlawful immigration status is not an element of the state statute, and thus the state statute is not a federal analogue. 188 In the past, advocates argued that a state firearms offense is not analogous to a federal offense that includes a federal jurisdictional element (e.g., that requires crossing state lines, being in commerce, taking place on federal land), unless the state offense also includes a federal jurisdictional element. The Supreme Court rejected that argument in a case involving arson as an aggravated felony. Luna-Torres v. Lynch, 136 S.Ct. 1619 (2016). Advocates who want to investigate defenses after Luna-Torres should see Practice Advisory available online. 189

188 See, e.g., United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (finding Calif. PC § 12021(a)(1) an aggravated felony). 189 See National Immigration Project of the National Lawyers Guild and Immigrant Defense Project, “Practice Alert: Luna-Torres v. Lynch” (May 20, 2016) at www.nipnlg.org/PDFs/practitioners/practice_advisories/crim/2016_20May_luna-torres-alert.pdf.

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A firearms offense that meets the definition of a crime of violence in § 18 USC 16 is an aggravated felony as a crime of violence, if a sentence of a year or more was imposed on a single count. See INA § 101(a)(43)(F).

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PRACTICE TIP: Antique Firearms. The federal definition of firearms specifically excludes “antique” firearms. 18 USC § 921(a)(3).

C.

Defenses against the Firearms Deportability Ground 1. Statutes that contain firearms and non-firearms offenses

Many state statutes involving use of a weapon encompass conduct that involves a firearm and conduct that involves some other weapon. The statute might prohibit possessing a specific group of weapons, for example, a “firearm, knife, blackjack,” etc. Or it might prohibit possession or use of a “dangerous weapon,” without offering a statutory list of possible weapons. The categorical approach can be very helpful in defending against a charge that the person was convicted of a deportable firearms offense or firearms aggravated felony. See § 2.4. The first question is whether the statute is “overbroad” because it includes weapons outside of the definition of firearms (i.e., non-firearms). Next one must determine if the statute is truly “divisible” between a firearm and a non-firearm offense. If an overbroad statute is found to be not divisible, then no conviction is of a firearms offense, regardless of any underlying facts. If it is divisible, the IJ may review the individual’s record of conviction to get more information. When is a firearms statute indivisible (not divisible)? A statute that just cites a category of weapons, e.g., assault with “a deadly weapon,” without providing a statutory list of possible weapons, is automatically indivisible. Conviction under that statute never is a deportable firearms offense—even if in the particular case, the defendant pled guilty to using a firearm. If a statutory text does list different weapons in the alternative, e.g., providing a statutory definition of “deadly weapon” as a “firearm, club, or knife,” then the question is whether these various weapons are “elements” under the categorical approach. They are “elements” only if a jury would have to unanimously agree on which weapon was used, in order to find the defendant guilty. See example below. If the statute does not meet this “jury unanimity” test, it is indivisible. Again, if the statute is overbroad and indivisible, then no conviction under the statute is a deportable firearm offense. See § 2.4. If the statute is divisible between different specified weapons, then the adjudicator may conduct a limited examination of certain documents from the person’s record of conviction. If the record proves that the offense did involve a federally-defined firearm, then the person is deportable under the firearms ground. See § 2.5. Consider the following example of statutes from three different states. In each case, assume that the defendant pled guilty to an offense that involved a federally-defined firearm, as opposed to another weapon.

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Under the categorical approach, if a state statute ever has been used to prosecute a case involving an antique firearm, then arguably no conviction under the statute has immigration consequences as a “firearms” offense, even if the particular case did not involve an antique firearm. See further discussion at Subsection C.3, below.

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Example: Statute A prohibits assault with a “deadly weapon.” There is no definition of deadly weapon in the statute, but cases have found this includes a firearm, a knife, and a heavy object. This statute is overbroad (because it reaches weapons beyond a firearm) and indivisible (because it is a single term in the statute, not phrased in the alternative). Therefore no conviction—even one where the defendant pled guilty to using a firearm— is a deportable firearms offense. Statute B prohibits assault with a “deadly weapon” which is defined elsewhere in the statute as a “firearm, knife, or blackjack.” It appears that under state law, if a jury disagreed about what weapon was involved—for example, if six jurors found that the defendant used a firearm and six found that he used a blackjack—they still could find the defendant guilty of assault with a deadly weapon. Or at least, there is no legal authority finding the opposite. Statute B also should be found indivisible as to the type of weapon, because without a requirement of jury unanimity, the different listed offenses are not “elements” of the offense. Because the statute is indivisible, no conviction is a deportable firearms offense. Statute C also prohibits assault with a “firearm, knife, or blackjack.” However, in this state there is legal authority that a jury cannot find a defendant guilty of Statute C unless the jury unanimously agrees upon which weapon was used. This requirement of jury unanimity means that Statute C is divisible. Now the IJ or other adjudicator may go on to the modified categorical approach and look to the record of conviction, to see if it conclusively proves that the defendant was convicted of using a firearm versus another weapon. See § 2.3, above. Because the defendant pled guilty to using a firearm, the IJ can find that he is deportable under the firearms ground. (Again, we are assuming that the definition of firearm in the state statute meets the federal definition. But see next section on the antique firearms exception). 2. The antique firearms exception works with many state statutes; cultural purposes exception The term “firearm” is defined at 18 USC § 921(a), for purposes of both the firearms deportation ground and the firearms aggravated felony definition.190 In every case, counsel should carefully compare the definition of firearm in a state statute to the definition in the federal statute, to see if there are differences that would support a defense. Significantly, our federal definition “does not include an antique firearm.” 18 USC § 921(a)(3). An antique firearm is defined for this purpose as one made in 1898 or before, plus certain replicas. 18 USC § 921(a)(16). The Supreme Court has stated, and courts of appeals have held, that if a state statute does include antique firearms, then under the categorical approach no conviction under the state statute is a deportable firearms offense or firearms aggravated felony. This is true even if in the person’s own

190 See definition of firearm cited in the deportation ground at INA § 237(a)(2)(C) and the aggravated felony definition at INA § 101(a)(43)(C), (E).

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case, the firearm was not an antique. 191 These decisions overrule a prior BIA case that held that an individual must prove that her conviction involved an antique firearm. 192

Second, if the state statute does not explicitly exclude antique firearms, we must show that there is a “realistic probability” that the statute actually is used to prosecute conduct involving antique firearms. In other words, it is not enough that the statute does not affirmatively exclude firearms; one must show that at some point that statute (or another offense that uses the same state definition of firearm) has been used to prosecute an actual case that involved an antique firearm. Don’t assume that there have been no such prosecutions under the statute. Once one begins looking at state cases, it can be surprising how many people in modern times have gotten in trouble with muskets and other antiques and replicas. If needed, look for published or unpublished cases involving multiple state criminal statutes, including (a) the offense your client was convicted of; (b) the predecessor to that offense, if any; (c) the statutory definition of “firearm” applicable to your client’s offense; and (d) other offenses that employ the same statutory definition of firearm employed in your client’s offense. The Supreme Court created the rule that there must be proof of a “realistic probability” that a statute actually will be used to prosecute certain conduct. See discussion of this test at § 2.4. In this context, the Ninth Circuit interpreted the Supreme Court to mean that as long as there are cases showing that a state definition of “firearm” has been used to prosecute antique firearms, any offense that uses that same definition also qualifies for the antique firearm exception. 194 Recreational and Cultural Purposes. There is also an exception in the federal definition of destructive devices (used for both the firearms deportation ground and aggravated felony

191

See discussion in Moncrieffe v. Holder, 133 S. Ct. at 1678, 1693 (2013) and see, e.g., U.S. v. AguileraRios, 769 F.3d 626 (9th Cir. 2014), Medina-Lara v. Holder, 771 F.3d 1106, 1116 (9th Cir. 2014). 192 The prior case was Matter of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010). 193 For example, if a state statute defines an antique firearm as a firearm made before 1918, that would be broader than the federal definition at 18 USC 922(a)(17), which defines it as one made before 1898. The state statute would be overbroad because it would include some firearms that do not come within the federal definition, n, namely, firearms manufactured between 1898 and 1918. Then follow the above instructions for dealing with an overbroad firearms statute. 194 See, e.g., Medina-Lara v. Holder, 771 F.3d at 1116, finding that because cases show that a California statutory definition of firearm has a “realistic probability” of being used to prosecute antique firearms, any offense that uses that same definition of firearm also has such a “realistic probability.”

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Advocates should carefully examine state firearm statutes to see if they have been used to prosecute conduct involving an antique firearm. This is a two-step process. First, check the statutory language of the particular offense and/or the applicable statutory definition of “firearm” under state law, to confirm that it does not specifically exclude antique firearms. If the statute is silent on the issue of antiques, i.e., it just states “firearm,” that is sufficient for this step. (If the statute does specifically exclude antique firearms, see if the state statutory definition of antique firearm matches the corresponding federal definition.) 193

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categories) for rifles used “solely for sporting, recreational and cultural purposes.” 195 The Seventh Circuit in Lemus-Rodriguez v. Ashcroft considered the “cultural purposes” exception. 196 However, it found that firing a gun in the air to celebrate New Year’s Eve was not a ‘cultural’ use of a gun, because it is not part of American culture.

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3. Re-adjustment of status and other relief that requires inadmissibility There is no firearms ground of inadmissibility. A permanent resident who is deportable but not inadmissible can apply for re-adjustment of status if he is otherwise eligible as a defense to deportation. If adjustment is granted the person should no longer be deportable based on the conviction. 197 In addition, if the person is deportable and also is inadmissible under a ground that can be waived, a waiver can be submitted with the adjustment application. 198 Adjustment of status is discretionary relief, and the applicant must be able to persuade the DHS or immigration judge to grant it. 199 § 2.14 Failure to Register as a Sex Offender Deportation Ground A.

Federal Conviction Relating to State Sex Offender Registration 200

In 2006, Congress added a new deportation ground to the INA, that makes a noncitizen deportable who is convicted in federal criminal court of 18 USC § 2250, if the conviction is after admission and on or after July 27, 2006. INA § 237(a)(2)(A)(v). Section 2250 is a federal offense that penalizes failure to register as a sex offender in any jurisdiction, including a state. It requires persons who travel in interstate commerce or otherwise meet jurisdictional requirements, and who have been convicted in any jurisdiction of any of a large number of sex offenses (or, it appears, offenses such as false imprisonment) involving minors, to register in the jurisdictions of their conviction, incarceration, residence, or school either within three business days after sentence or prior to release from custody, and within three days of changing address. Any noncitizen who violates this registration requirement may be convicted in federal court, and once convicted is deportable. The details of who is required to register and for what offenses are provided in Title I of the Adam Walsh Act, Act July 27, 2006, P.L. 109-248.

195

18 USC § 921(a)(4). “The term ‘destructive device’ shall not include … any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.” 196 Lemus-Rodriguez v. Ashcroft, 350 F.3d 652 (7th Cir. 2003). 197 Matter of Rainford, 20 I&N Dec. 598 (BIA 1992). 198 See Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993) (a person deportable under the firearms ground and inadmissible for a drug offense can apply for adjustment coupled with a waiver under former INA § 212(c) to waive the drug offense). Likewise adjustment should be permitted in conjunction with a waiver of inadmissibility for moral turpitude, prostitution, etc. under INA § 212(h). See Chapter 6. 199 See Chapter 5, § 5.3, Subsection B, Chapter 6, § 6.5, Subsection A, and Chapter 8, § 8.3. 200 This section was written in part by Norton Tooby (www.nortontooby.com).

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All of the defenses against “conviction” apply to this deportation ground. 201 This deportation ground is triggered only upon a federal criminal conviction of violating 18 USC § 2250. Notably, a state conviction of failure to register as a sex offender is not a “conviction under” 18 USC § 2250. Congress did not use any broader language, as it did for other deportation grounds, such as “described in,” “related to,” or “involving” or even “defined in.” It specifically used the phrase “convicted under.” Congress also failed specifically to provide that a state conviction could trigger this ground of deportation.202 Thus, the plain language of the statutory ground of deportation includes only federal convictions of violating this specific statute. 203

While a federal conviction for violating 18 USC § 2250 triggers deportation for lawful permanent residents, it does not appear to trigger any other major adverse immigration consequences. B.

Failure to Register as a Crime Involving Moral Turpitude

There have been conflicting holdings between the BIA and federal courts regarding whether failure to register as a sex offender constitutes a crime involving moral turpitude. In many states, failure to register as a sex offender is a strict liability offense with no scienter requirement, which can be violated by merely being a day late to register due to forgetfulness.205 In contrast, General Mukasey defined a crime involving moral turpitude as reprehensible act requiring some type of scienter, at least recklessness. Matter of Silva-Trevino, 24 I&N Dec. 687, 689 (A.G. 2008) (“Matter of Silva-Trevino I”). While that decision was withdrawn on unrelated grounds by Attorney General Lynch, 206 its definition of moral turpitude was not disapproved and it represents as “good” a summary of moral turpitude as any. Prior to Matter of Silva-Trevino I, the BIA held that failure to register as a sex offender under Calif. PC § 290(g)(1) is a crime involving moral turpitude, despite the fact that it is a strict liability crime that can be committed by forgetfulness. Matter of Tobar-Lobo, 24 I&N Dec. 143, 146 (BIA 2007). Federal courts of appeals have disagreed with Matter of Tobar-Lobo, in some cases noting that it explicitly conflicts with the definition of moral turpitude and its requirement of scienter, in SilvaTrevino. See, e.g., Plasencia-Ayala v. Mukasey, 516 F.3d 738, 746 (9th Cir. 2008); 207 Mata201

See § 2.2(A), supra. Compare INA § 101(a)(43) (“The term [aggravated felony] applies to an offense described in this paragraph whether in violation of federal or state law]). 203 See Leocal v. Ashcroft, 543 U.S. 1 (2004). 204 See INS v. St. Cyr, 533 U.S. 289 (2001). 205 See, e.g., Calif. Penal Code § 290(g)(1). 206 Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015), withdrawing Matter of Silva-Trevino I. 207 Plasencia-Ayala v. Mukasey (finding that failure to register as a sex offender under Nev.Rev.Stat. §§ 179D.460, 179D.550, 193.130 are not CIMTs) was overruled on other grounds in Marmolejo-Campos v. 202

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The deportation ground is triggered only by convictions that occur on or after July 27, 2006, the date of enactment of this new ground of deportation. There is no “effective date” provision for this deportation ground. Therefore, the statute is presumed to operate prospectively only and to apply only to convictions occurring on or after its effective date.204

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Guerrero v. Holder, 627 F.3d 256 (7th Cir. 2010); Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011). In 2011 the Ninth Circuit remanded a case to the BIA with instructions “to reconsider whether [California failure to register] constitutes a CIMT under the ‘proper definition involving moral turpitude’ as outlined in Silva-Trevino, id. at 705-06.” Pannu v. Holder, 639 F.3d 1225, 1229 (2011). To date, the BIA has not responded with a published decision, or withdrawn from Matter of Tobar-Lobo.

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§ 2.15 Ground of Inadmissibility for Two or More Convictions with Total Sentences of Five Years Noncitizens are inadmissible under INA § 212(a)(2)(B) if they have been convicted of two or more offenses of any kind (except purely political offenses), and the aggregate time of the sentences to confinement “actually imposed” for those convictions add up to five years or more. For example, a person who was sentenced to two years for one conviction and four years for another would be inadmissible, regardless of how much time he or she actually served. Note that this ground of inadmissibility requires at least two convictions. Example: John was convicted of robbery and sentenced to five years in prison. Is he inadmissible under INA § 212(a)(2)(B)? NO, because he has only one conviction, even though the sentence was five years. To determine how to calculate the “sentence to confinement” see § 2.3, above. It’s important to understand what is meant by a sentence when determining whether your client is potentially inadmissible under INA § 212(a)(2)(B). Note that under this ground, except for purely political offenses, it does not matter what kind of offense was involved or whether or not the crimes were part of a “single scheme of criminal misconduct.” There is no parallel ground of deportability to INA § 212(a)(2)(B).

Holder, 558 F.3d 903 (9th Cir. 2009)(en banc). While Calif. PC § 290 includes a willfulness requirement whereas the Nevada statute does not, the difference is not determinative because the Ninth Circuit based its holding on the lack of depravity involved in failing to register. “[I]t is the sexual offense that is reprehensible, not the failure to register.” Id. at 748. Also, the California statute can be violated by forgetting to comply; see discussion of PC § 290 in Tobar-Lobo, 24 I&N Dec. at 145.

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CHAPTER 3 OTHER GROUNDS OF INADMISSIBILITY AND DEPORTABILITY

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This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 § 3.7

Alien Smuggling ................................................................................................ 3-1 Document Fraud ............................................................................................... 3-10 False Claim to U.S. Citizenship ....................................................................... 3-16 Illegal Voting.................................................................................................... 3-22 Inadmissible at Time of Admission and Now Removable ............................... 3-25 Inadmissible for Misrepresentation and/or Fraud............................................. 3-26 Abandonment of Residence: Losing One’s Permanent Resident Status .......... 3-30

§ 3.1

Alien Smuggling

A person who in any way and any time helps bring other noncitizens illegally into the United States may be inadmissible for alien smuggling. See INA § 212(a)(6)(E). A person who is inadmissible for alien smuggling also is ineligible to establish good moral character under INA § 101(f), which is a requirement for naturalization, non-LPR cancellation of removal, VAWA, registry, and one of the forms of voluntary departure. A person who commits alien smuggling—even if there is no conviction—can be found deportable, if it occurred at the time of any entry, prior to any entry, or within five years of any entry under INA § 237(a)(1)(E). Moreover, a conviction for alien smuggling is also an aggravated felony, unless it was a first offense for smuggling only a parent, spouse or child. See INA § 101(a)(43)(N). Note that unlike the crime involving moral turpitude and controlled substance inadmissibility grounds discussed in Chapter 2, the person does not have to admit to or be convicted of alien smuggling to be found inadmissible or deportable. Mere evidence within DHS’ possession that the person was an alien smuggler can suffice. Before 1990, only people who smuggled noncitizens in exchange for money were inadmissible. The post-1990 ground harshly imposes inadmissibility on people who have sympathetic reasons for helping family members enter the United States. You must inform your clients of the consequences of telling DHS that they helped family members or others to come in illegally. If

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This chapter examines the most common non-criminal grounds of inadmissibility and deportability that lawful permanent residents may face. It covers alien smuggling, document fraud, false claim to U.S. citizenship, illegal voting, inadmissibility at the time of entry/admission, fraud/misrepresentation, and abandonment of lawful permanent residence. A more in-depth discussion of the remedies available to waive these grounds can be found in Chapters 4, 5, 6, and 8.

the person is not eligible for a waiver you may need expert advice to fight the case, and community support to influence the DHS not to proceed against the person. A.

Definition of Alien Smuggling

The statute defines an alien smuggler as “[a]ny person who knowingly has encouraged, induced, assisted, abetted, or aided” any other person to enter or try to enter the United States illegally. INA § 212(a)(6)(E)(i); INA § 237(a)(1)(E)(i). These provisions are worded very broadly and include sending money to someone to pay a smuggler, as well as merely encouraging someone to enter the United States illegally. The person must know she is helping someone enter illegally. If she was not aware that the other person did not have legal status to enter, she is not inadmissible under this ground. Bringing one’s own family members is alien smuggling if the situation otherwise meets the definition for alien smuggling. A finding of alien smuggling does not just cover professional alien smugglers; it also applies to people who bring in their family members. Example: Maria went to Mexico and physically helped her younger brother cross the border without inspection. She is inadmissible as an alien smuggler.

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Example: Sandra arranged for her elderly mother to enter the United States illegally in 2007. Sandra contacted a coyote to bring her and helped pay for the expenses, although Sandra was not there herself. Sandra is inadmissible as an alien smuggler. B.

Affirmative and Knowing Conduct

The courts have provided guidance on what types of scenarios meet the statutory definition. If you have a case where the person might have committed alien smuggling, it will be very important to review the applicable case law. There might be facts that support an argument that the situation does not meet the definition of alien smuggling. In Altamirano v. Gonzales, the Ninth Circuit reversed a finding of inadmissibility for alien smuggling where the petitioner was a passenger in a vehicle and knew that someone was hiding in the trunk. 1 The court held that: The plain meaning of this statutory provision requires an affirmative act of help, assistance, or encouragement. Here, because Altamirano did not affirmatively act to assist Martinez-Marin, she did not engage in alien smuggling. That she was present in the vehicle and knew that Martinez-Marin was in the trunk does not amount to a violation of § 212(a)(6)(E)(i). 2 In Aguilar-Gonzales v. Mukasey, 3 the Ninth Circuit also held that merely being present and acquiescing to another’s fraudulent use of a document is not an affirmative act to constitute alien smuggling. In that case, despite petitioner’s initial refusals to allow her father to borrow her son’s U.S. birth certificate to smuggle two infants into the United States, she finally agreed to accompany and allow him to present the birth certificate to immigration authorities because she feared that he would stop paying the mortgage on her house if she did not do so. The Ninth Circuit found that she had not committed alien smuggling. 1

427 F.3d 586, 591-96 (9th Cir. 2005). Id. at 592. 3 534 F.3d 1204 (9th Cir. 2008). 2

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The Sixth Circuit reversed a finding of inadmissibility for alien smuggling for a lawful permanent resident who shared driving responsibilities with three friends, one of whom was an undocumented immigrant, where the lawful permanent resident believed the undocumented immigrant could travel back and forth across the border because he was in the process of applying for a green card. Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005).

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In the Second Circuit, the court upheld a finding of alien smuggling where the noncitizen lied at the border about another person’s residency and the whereabouts of his passport, admitted to the border patrol officers that she previously agreed to accompany the other person at the Canadian border as he tried to enter the United States, and was aware the other person had previously been deported. Chambers v. Office of Chief Counsel, 494 F.3d 274 (2nd Cir. 2007). These cases support the proposition that the statutory definition of alien smuggling requires an affirmative act of help, assistance, or encouragement, such as paying alien smugglers, making the arrangements to get aliens across the border, or providing false information and documents to immigration authorities. Mere presence during the actual act of alien smuggling with knowledge that it is being committed is not enough, at least in the Sixth and Ninth Circuits. Tapucu v. Gonzales, Altamirano v. Gonzales, Aguilar-Gonzales v. Mukasey, and Chambers v. Office of Chief Counsel, above. C.

Prearranged Plans and Sending Money

The Ninth Circuit has also found that an affirmative act constituting smuggling includes knowingly participating in a prearranged plan to bring people to the border and then meeting them on the U.S. side of the border to transport them within the United States. HernandezGuadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). In that case, the petitioner picked up seven individuals in Mexico, drove them to a town near the border where they made arrangements with a smuggler to cross, and then met up with them again once they were within the United States to drive them from Arizona to Washington. Courts have also found, however, that mere harboring or transporting of others alone is not enough to constitute alien smuggling. See United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007). 4 4

In United States v. Lopez, the Ninth Circuit reversed a conviction under 8 USC § 1324(a)(2) because the evidence showed that the defendant did not aid and abet initial transportation but just transported undocumented aliens within the United States and did so only after the initial transporter had dropped the aliens off inside the country. 484 F.3d 1186 (9th Cir. 2007); see also Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995) (conviction for illegally transporting undocumented immigrants does not trigger inadmissibility because the statute only refers to aiding and abetting); Matter of I-M-, 7 I&N Dec. 389 (BIA 1957) (transporting undocumented persons within the United States does not necessarily create inadmissibility).

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The Fourth Circuit has held that sending financial assistance directly to a child at a hotel on the border was sufficient to constitute alien smuggling, where the parents knew that the funds would be used for the child to cross the border illegally. In this case, the parents sent money to four different children over the years, and each time right after the money was sent in amounts of $3,000-4,000, the children immediately crossed the border illegally and joined their parents in the United States. This pattern, together with the father’s admission that he believed he was doing “something illegal” contributed to this finding. Ramos v. Holder, 660 F.3d 200 (4th Cir. 2011).

This finding is consistent with the Fifth Circuit, which stated, in Rodriguez-Gutierrez v. INS, 59 F.3d 504, 509 n. 3 (5th Cir. 1995), that a conviction for illegally transporting undocumented immigrants does not trigger inadmissibility for smuggling because the statute only refers to aiding and abetting, not transporting. An older BIA case, Matter of M-, 7 I&N Dec. 389 (BIA 1957), also found that transporting undocumented persons within the United States does not necessarily create inadmissibility for alien smuggling.

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Some courts have held that affirmative assistance provided shortly after the person who was smuggled entered the country constitutes alien smuggling, even though the assistor had no intention to help the person enter in the first place. The Ninth Circuit held that alien smuggling includes an agreement by a family member to pay a smuggler after the person is already in the United States, but before the smuggler releases or ceases to transport the person. Covarrubias v. Gonzales, 487 F.3d 742 (9th Cir. 2007). 5 In that case, the petitioner knew that his brother planned on crossing the border illegally, but did not agree to help him until he after had crossed the border. He collected money from his other siblings and arranged payment to the smuggler. The court emphasized that he helped his brother before the smuggler released and ceased to transport him. The First Circuit found that an LPR petitioner was removable for alien smuggling even though the petitioner, after discovering that her friends intended to enter illegally, initially refused to assist them and entered the United States on her own. The petitioner, however, had a change of heart due to concern for the safety of the friends’ small child and returned to a designated meeting point on the U.S. side of the border to pick them up. The court held that because the LPR went back to the border within hours of the friends walking across, an “entry” had not yet been completed by the friends at the point she picked them up and facilitated their travel. As a result, petitioner was an “alien smuggler” as she assisted in their attempted entry. Dimova v. Holder, 783 F.3d 30 (1st Cir. 2015). On the other hand, a conviction for a federal “bringing in and harboring aliens” criminal charge does not necessarily result in inadmissibility for alien smuggling, especially if the person’s conduct and the facts do not indicate involvement or knowledge of the immediately prior illegal entry. Parra-Rojas v. Attorney General, 747 F.2d 164 (3rd Cir. 2014). In this case the LPR was being paid by an “employer” to pick up people in an upstate New York town and transport them elsewhere and was paid $500 per person each time to do so. He pled guilty to “bringing and harboring,” pursuant to 8 USC § 1324(a)(B)(ii) and 18 USC § 2. However, the Third Circuit held he was not inadmissible as an “alien smuggler.” He was therefore able to adjust status without being barred under INA § 212 (a)(6)(E). Oddly enough, a conviction of an aggravated felony is not itself a ground of inadmissibility. Thus even with an aggravated felony conviction, the question for many forms of relief will still be whether the person is inadmissible under the alien smuggling ground. Never assume that a conviction for “alien smuggling” will automatically trigger inadmissibility for alien smuggling. 5

See also United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (“We hold that although all of the elements of the “bringing to” offense [under 8 USC § 1324(a)(2)] are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them—in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border”).

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WARNING: Before you concede that your client is inadmissible or deportable for alien smuggling, make sure that she knew that the person she was helping or encouraging did not have the legal right to enter the United States. If a violation was not made knowingly, then it does not trigger the alien smuggling inadmissibility ground. Also make sure that the acts do not involve merely harboring or transporting others within the United States or merely being present or acquiescing to the illegal entry of others as the person may have engaged in alien smuggling.

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Aggravated Felony for Crimes “Relating to Alien Smuggling.” INA § 101(a)(43) provides that a conviction described in INA § 274(a)(1)(A) or (2) “relating to alien smuggling” is an aggravated felony. Alien smuggling appears in INA § 274(a)(1)(A), and transporting and harboring appear in INA § 274(a)(1)(B) and (C). The inadmissibility and deportability grounds for alien smuggling (INA § 212(a)(6)(E), § 237(a)(1)(E)) are different from the aggravated felony based on alien smuggling (INA § 101(a)(43)(N)) in two ways. First, the inadmissibility and deportability grounds can be triggered by conduct, while an aggravated felony must be a criminal conviction. Second, the definition of smuggling is different. The alien smuggling inadmissibility and deportability grounds only apply to people who have knowingly assisted, abetted, etc. the entry of an unauthorized person into the United States. The federal criminal offense of alien smuggling, which is an aggravated felony, includes convictions for smuggling or transporting undocumented immigrants. See INA § 101(a)(43)(N), referencing INA § 274(a). 6

D.

Alien Smuggling Inadmissibility Ground and Exceptions/Waivers

A person, who has knowingly encouraged, induced, assisted, abetted, or aided a person enter, or try to enter, the United States unlawfully is inadmissible.7 Unlike the deportation ground (discussed in Subsection C below), which is triggered only when committed during certain time periods (prior to the date of entry, at the time of any entry or within five years of the date of any entry), the inadmissibility will be triggered when the act is committed at any time. 1. Exceptions/waivers There are certain forms of relief for someone who is inadmissible under INA § 212(a)(6)(E): 1. INA § 212(d)(11): A discretionary waiver for returning permanent residents and for people who apply for immigration based on family petitions as immediate relatives or through the preference system, except 4th preference brothers and sisters of U.S. citizens; 2. INA § 212(a)(6)(E)(ii): An automatic exemption for certain persons who were present in the United States on May 5, 1988, are immediate relatives or second preference 6

INA § 274(a) includes “transporting”; see also Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999); United States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002). 7 INA § 212(a)(6)(E).

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Example: Maria was convicted for the crime of smuggling her brother. She has an aggravated felony conviction. Even if she is an LPR, this will make her ineligible for LPR Cancellation of Removal and therefore deportable with possibly no relief from deportation.

beneficiaries, and who are applying for Family Unity or immigration through a family visa petition; and 3. Select other forms of relief not barred by Alien Smuggling (e.g., U Visas, T visas, LPR Cancellation of Removal under INA § 240A(a), others listed below). These exceptions/waivers are further elaborated below. a. Lawful Permanent Residents and family immigrants: A discretionary waiver under INA § 212(d)(11) A waiver for alien smuggling is available to the following persons: 1. Permanent residents who are seeking admission or are in removal proceedings, 8 and 2. People who are immigrating as immediate relatives or through a first, second, or third preference visa petition. To be eligible to apply, the resident or intending immigrant must have smuggled in his or her spouse, parent, son or daughter, and no one else. This requirement applies to both lawful permanent residents and those immigrating through family members. 9

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The relative smuggled must also have had that status/family relationship at the time the act occurred. 10 Example: Mary, a permanent resident, crossed the border illegally while smuggling her fiancé Harry across the border. Although they later married, Mary is not eligible for this waiver because, at the time she smuggled him, Harry was not her husband. If a person meets the requirements for the alien smuggling waiver, she then must convince USCIS to grant the waiver because of one or more of these following grounds: • • •

For “humanitarian purposes.” For example, the person might be ill and unable to get good medical care in the home country; To “assure family unity.” For example, the person might be leaving behind a permanent resident spouse and child in the United States; or When it is “otherwise in the public interest.” For example, the person might be an active church member or a valued employee whom the community would miss.

8

Thus, those permanent residents who are deemed to be arriving aliens under INA § 101(a)(13)(C) may be eligible for this waiver. See Chapter 1. 9 In Matter of Compean, 21 I&N Dec. 51 (BIA 1995), the BIA rejected an applicant’s argument that the waiver of inadmissibility under INA § 212(d)(11) has separate requirements for the two classes of applicants, and that permanent residents can apply for the waiver even if they smuggled someone who was not a parent, spouse, son or daughter. The BIA ruled that the statutory requirement that only certain family members could have been smuggled applies to all applicants. 10 The 1996 IIRIRA added this limitation to the waiver. Matter of Farias, 21 I&N Dec. 269 (BIA 1996); see also Moran v. Ashcroft, 395 F.3d 1089 (9th Cir. 2005). This amendment applies retroactively to waivers filed before IIRIRA’s date of enactment, but does not apply “to an application for which a final determination has been made as of” the IIRIRA effective date, which was September 30, 1996. IIRIRA § 351. See Matter of Farias, supra.

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These three categories are quite broad, and most good evidence about a person’s life will fit within one or more of them. See Chapter 10 for a discussion of hardship and equities. At some point, the waiver application should state which ground the evidence is supporting.

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Example: An application might state “This waiver should be granted for humanitarian purposes and to ensure family unity: Regina would be in grave danger if she returns to Guatemala, where gangs have killed almost her entire family, and her family in the United States cannot support themselves without her here.” As discussed below in Subsection C, lawful permanent residents also can apply for a waiver of deportability for alien smuggling, if they meet the same requirements. 11 Furthermore, some relatives of legalized aliens may qualify for something better than this waiver: an automatic exemption. b. “Family Unity” relief: Automatic exemption for some relatives of legalized aliens A person is automatically exempted from the alien smuggling ground of inadmissibility if she is eligible for the “Family Unity” program as originally enacted in 1990. 12 In particular, the person must: •

•

These persons automatically are not inadmissible under INA § 212(a)(6)(E)(ii). They do not have to apply for a waiver of inadmissibility. c. Other forms of relief not barred by alien smuggling There are certain forms of relief that have exemptions or waivers for this ground. For example, there is an exemption for Special Immigrant Juvenile Status applicants, and a waiver available for U and T nonimmigrant status applicants. In addition, alien smuggling is not necessarily a bar to asylum and withholding of removal. 13 The person may also seek the exercise of discretion if applying for a non-immigrant visa under INA § 212(d)(3)(A), or if in proceedings in the United

11

See INA § 237(a)(1)(E)(2). See INA§ 245A Note 3; see also 8 CFR § 236.10-236.18. 13 Though note, a conviction for alien smuggling under INA § 101(a)(43)(N) is an aggravated felony and therefore will bar asylum. For withholding, a conviction of an offense that is classified as a “particularly serious crime” is a bar to this relief. However, The Board has held that a conviction for alien smuggling with a three-month sentence is not a particularly serious crime, and therefore will not bar withholding. Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999). 12

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• •

Be an “eligible immigrant” for Family Unity—which includes the spouse, or child of a legalized alien. (“Child” is defined as under 21 years of age as of one of two specific dates in 1988—the person does not have to be under 21 now); Have been physically present in the United States on May 5, 1988; Be immigrating as a second preference beneficiary, or immediate relative, or who is applying for Family Unity; and Have, before May 5, 1988, smuggled only a spouse, parent, son or daughter.

States, cancellation of removal under INA § 240A(a) for certain lawful permanent residents. 14 LPR Cancellation of Removal under INA § 240A(a) can waive most grounds of either inadmissibility or deportability for a permanent resident, including the alien smuggling grounds of inadmissibility and deportability. However, LPR Cancellation of Removal is not available to someone who has been convicted of an aggravated felony; and a conviction for alien smuggling is an aggravated felony under INA § 101(a)(43)(N). 15 Therefore, so long as there is no conviction for alien smuggling, a lawful permanent resident who committed alien smuggling but is otherwise eligible for LPR cancellation of removal, may still qualify for this benefit, even if the smuggling was for a commercial purpose. See Chapter 4. NOTE: No Good Moral Character for Alien Smugglers! A person who is inadmissible for alien smuggling is ineligible to establish good moral character, if the offense occurred during the good moral character period indicated by the statute for a particular benefit or relief. Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009). Good moral character is a requirement for INA § 240A(b) nonpermanent resident cancellation of removal (and the former suspension of deportation), VAWA, some voluntary departure, registry, and naturalization to U.S. citizenship.

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C.

Alien Smuggling Deportability Ground and Exceptions/Waivers

The deportation ground is more lenient than the ground of inadmissibility, because it has a time limit. The person must have committed alien smuggling before, during, or within five years of any entry into the United States to be deportable. INA § 237(a)(1)(E). The word “entry” means coming into the United States legally or illegally, with or without inspection and authorization by an immigration officer. Remember you should not concede to removability until you have confirmed that your client knew that the person who they helped enter the United States did not have the legal right to enter, the act itself meets the definition of alien smuggling, and that it occurred during the time periods enumerated above. Example: Ricardo was admitted to the United States in 2003 as a permanent resident, and has never left the United States since then. In 2009 he paid an alien smuggler to help bring his father up from Mexico. Ricardo committed alien smuggling, because he helped his father enter illegally. But he is not deportable, because he did it more than five years since his last entry into the United States in 2003. Waiver of Deportability under INA § 237(a)(1)(E)(iii): Certain lawful permanent residents who are in removal proceedings and found to be deportable for alien smuggling can apply for a waiver of deportability under INA § 237(a)(1)(E)(iii). The waiver is available to lawful permanent residents (LPRs) who helped smuggle only a spouse, parent, son or daughter (and no other individual) at the time to enter the country in violation of the law. The person smuggled must have had that family status at the time the smuggling occurred. If the immigration judge

14 This type of cancellation of removal, which is discussed extensively in Chapter 4, is available only to certain permanent residents and is to be distinguished from cancellation of removal for nonpermanent residents under INA § 240A(b). 15 A smuggling conviction is not an aggravated felony if it is a first offense and the person smuggled is a parent, spouse or child. INA § 101(a)(43)(N).

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grants the waiver, the removal proceedings will end and the person can keep his or her permanent residence. See next section. Example: Maria smuggled her brother. She was charged with alien smuggling under INA § 212(a)(6)(E) but not convicted of a crime. She cannot apply for a waiver of deportability under INA § 237(a)(1)(E)(ii), because she did not smuggle a parent, spouse, son, or daughter. However, if she has at least five years as an LPR and seven years as of residence in the United States, she may be eligible to apply for LPR Cancellation of Removal under INA § 240A(a).

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Aggravated Felony Exception for Family Relationship: Conviction of smuggling, harboring or transporting is not an aggravated felony if it was a first offense and the person assisted was a parent, spouse or child. The aggravated felony definition does not clarify whether the person had to have the family status at the time the smuggling occurred in order to qualify for the family exception. For example, could a smuggled boyfriend who later became a husband or a young girl who later became a stepchild be a basis for the exception?

D.

Practice Suggestions for Clients with Older Smuggling Convictions

Non-commercial (i.e., “not for gain”) alien smuggling was made a basis for inadmissibility and deportation in 1990, and a conviction for alien smuggling was made an aggravated felony in 1994; this means that advocates may see people with old convictions who in the past had had no immigration problems but now are charged with being deportable, for example when they apply for naturalization. The following points should be considered in dealing with older convictions: •

A permanent resident can apply in removal proceedings to waive an aggravated felony conviction that occurred before April 24, 1996, under former INA § 212(c). See Chapter 5.

•

A permanent resident can request discretionary termination of deportation or removal proceedings to apply for naturalization if she would be eligible for naturalization apart from the smuggling conviction. 17 This avenue of relief, however, in most circumstances is probably not feasible. The BIA has held that an immigration judge can only terminate

16

Compare INA §§ 237(a)(1)(E)(iii), 212(c)(d)(11) (waivers of deportability and inadmissibility) with INA § 101(a)(43)(N)(alien smuggling as an aggravated felony). 17 See 8 CFR § 1239.2(f); [formerly 8 CFR §§ 239.2(f) and 242.7(e)]; see also INS Operations Instructions 318.2(c)(1)(ii).

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Arguably the family relationship did not have to exist at the time of smuggling for purposes of the aggravated felony definition. In amending the waiver for the alien smuggling grounds of deportability and inadmissibility, the IIRIRA specifically limited eligibility to cases in which the legal family relationship existed at the time of the smuggling. Congress did not so limit the aggravated felony definition relating to alien smuggling. 16 Because Congress specifically limited when the family relationship had to be established for the waiver but remained silent on the aggravated felony definition, rules of statutory construction dictate that Congress did not intend to impose this limitation on the aggravated felony exception. Consequently, a person who was convicted of smuggling a girlfriend and later married her should assert that he does not have an aggravated felony conviction.

the removal proceedings to permit a noncitizen to proceed with a pending naturalization application, if there is an affirmative communication from DHS that the noncitizen is prima facie eligible for naturalization. 18 •

A person is not deportable under the aggravated felony ground if the conviction occurred before admission. A person is not deportable for alien smuggling as long as she committed the offense more than five years after entry. 19 See the discussion of the admissibility and deportability grounds, and when they apply, in Chapter 1.

•

In humanitarian cases, the DHS might be persuaded not to proceed against the person as a matter of prosecutorial discretion. § 3.2

Document Fraud

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A person who by final order in a civil proceeding has been found to have violated INA § 274C is both deportable and inadmissible. 20 INA § 274C(a) describes a number of prohibited acts relating to the manufacture, alteration, use, and/or attempted use of false documents. It includes not only presenting false documents to immigration authorities directly, but also presenting a false document in an effort to fill out an I-9 form when applying for a job, as required under the IRCA employer sanctions provisions. 21 There is also a separate deportation ground for a conviction for a violation, or attempt or conspiracy to violate 18 USC § 1546, relating to fraud and misuse of visas, permits, and other entry documents. 22 A conviction of 18 USC § 1546 is also an aggravated felony if a twelvemonth sentence is imposed. 23 A.

Document Fraud under INA § 274C and Waivers 1. Requirements for document fraud under INA § 274C

Under INA § 274C it is unlawful to knowingly use, forge, alter, or counterfeit a document to obtain an immigration benefit, or to use someone else’s documentation to obtain an immigration benefit, or to file an application for an immigration benefit for yourself or for someone else knowingly or in reckless disregard of the fact that the person is not eligible to obtain a benefit under the INA, or to use false documents to board a carrier and then destroy them en route to the U.S., etc. This includes using a false or borrowed visa to enter the United States, or a false or borrowed social security card to complete an I-9 form to get a job. Although this statute covers a broad range of actions having to do with invalid documents, it is important to remember that the person charged under this statute has to have acted knowingly and for the purpose of satisfying a 18

Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007), relying in part on Matter of Cruz, 15 I&N Dec. 236 (BIA 1974). See Chapter 8, § 8.4 for further information on naturalization as a defense to removal. 19 INA § 237(a)(1)(E). The person is deportable if the smuggling occurred prior to, at, or within five years after any entry. 20 See INA § 212(a)(6)(F); INA § 237(a)(3)(C). 21 Since passage of the Immigration Reform and Control Act of 1986, all current employees within three days of hire must complete a form I-9 and show their employer documents proving identity and authorization to work. See INA § 274A(b), 8 USC § 1324a(b). 22 See INA § 237(a)(3)(B)(iii). 23 See INA § 101(a)(43)(P).

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requirement of or obtaining a benefit under the INA. In other words, people who are innocent victims of immigration fraud, or who reasonably believed that their documents were valid, are not in violation of § 274C, and people who knowingly used or obtained a false document for some purpose other than satisfying a requirement of, or obtaining a benefit under the INA, are also not in violation of § 274C. Further, it does not include false statements. In addition, note that the offenses listed in INA § 274C(a) include attempt, but not conspiracy, accessory, solicitation, and other auxiliary offenses.

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In addition, a noncitizen is only deportable and inadmissible under this ground if he or she is the subject of a final administrative order issued according to INA § 274C(d), even if the person admits to committing document fraud. A person charged with violating § 274C is entitled to a hearing before an administrative law judge to determine whether a final order will be issued. In these proceedings, state or federal convictions for offenses relating to false documents can serve as the basis for the civil finding, but no conviction is necessary prior to a civil finding. A person can appeal a negative finding all the way up to the court of appeals. See §§ 274C(d)(2), (4) & (5). Proceedings under § 274C(d) were stopped for some years due to a federal court injunction against the INS for bad practices in a case called Walters v. Reno. 24 They have since resumed. One of the few good things IIRIRA did was to create limited waivers for inadmissibility and deportability for § 274C document fraud. The waivers are set up similarly, but not identically, to the waivers for alien smuggling under INA §§ 212(d)(11) and 237(a)(1)(E)(iii). For LPRs charged with being inadmissible or deportable for document fraud under INA § 212(a) or § 237(a)(3)(C)(i), there are limited waivers available. LPR cancellation of removal can also waive these grounds, but if your client is eligible for one of these more specific waivers, it may be better to utilize them rather than squander your client’s one chance at cancellation of removal. 25 Effective Date: The statute does not give an effective date for the waivers, so they appear to be effective as of September 30, 1996. Since they represent a benefit and not any kind of penalty for past acts, arguably the waiver should apply retroactively to § 274C final orders issued prior to the law’s enactment.

24 In the past, the INS (now DHS) charged persons with having violated provisions against document fraud under INA § 274C and ordered them to respond or waive their right to a hearing by serving them with a form that contained unclear, technical language. Because of the confusing language, many people did not realize that they were technically admitting document fraud, waiving their right to a hearing, accepting a final order, and making themselves deportable and inadmissible. In October 1996, a federal district judge issued a nationwide permanent injunction finding that the INS waiver procedure was not constitutional and a settlement was reached. In February 2001, INS agreed to vacate all § 274C final orders issued against class members and to re-calendar, reopen, or remand certain deportation proceedings. In 2001, INS indicated that it had finished vacating the final orders issued against class members and issued the procedures to re-open, re-calendar, or remand class member’s deportation cases. For a copy of the Walters settlement agreement or for more information generally, contact the National Immigration Law Center in Los Angeles at (213) 639-3900 or go to www.nilc.org. 25 See Chapter 4, § 4.1.

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2. Waivers for document fraud under INA § 274C

a. Waiver of inadmissibility under INA § 212(d)(12) Under INA § 212(d)(12), a waiver of inadmissibility is available to: 1. Lawful permanent residents who temporarily left the country voluntarily, and are otherwise admissible, and 2. Noncitizens seeking admission or adjustment based on any family visa petitions (this could include LPRs seeking re-adjustment of status). The applicants must not have previously been fined under § 274C and must have committed the offense “solely to assist, aid, or support the noncitizen’s spouse or child (and not another individual).” (This same standard applies to the deportability waiver discussed below.) The waiver of inadmissibility may be granted “for humanitarian purposes or to assure family unity.” No such standards are listed for the waiver of deportability under INA § 237(a)(3)(C)(ii). What does “assist, aid, or support” mean in document fraud? At the time of this writing, there is no regulation or case law defining how someone commits document fraud to “assist, aid or support” a family member. It probably includes:

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• • •

Using a false document to get a job to support your spouse or child 26 Getting a false document for your spouse or child to use to get a visa Helping your spouse or child fill out a false application for immigration benefits

When must the family relationship occur? The waivers for alien smuggling specifically include a phrase stating that the applicant must have helped someone who at the time the smuggling occurred was a parent, spouse or child. The document fraud waivers discussed here do not contain this phrase. Since Congress did not include this requirement in the document fraud statute, it should not apply, although USCIS does not agree with this interpretation. 27 Example: Graciela desperately wanted to care for her common law husband, Harry, who was ill. She bought a fake green card and used it to complete an I-9 form to get a job. She and Harry were later married, and then Graciela was arrested and charged with document fraud. Graciela can argue that because Harry is her husband now and she committed the fraud to support him, she should qualify for the waiver. b. Waiver of deportability under INA § 237(a)(3)(C)(ii) The waiver of deportability under INA § 237(a)(3)(C)(ii) is only available to lawful permanent residents. Lawful permanent residents are eligible for this waiver if they have not previously been fined under § 274C, and if they committed the offense only to “assist, aid or support” their spouse or child (no other person). The waiver should be granted for assistance to a person who became a spouse or child after the document fraud occurred, since, unlike the smuggling waiver provision in INA § 237(a)(1)(E)(iii), § 237(a)(3)(C)(ii) does not require that the relationship had to have existed at the time the act of document fraud was committed.

26

See Remileh v. INS 101 F.3d 66 (8th Cir. 1996) (a person who used someone else’s birth certificate to obtain employment violated INA § 274C). 27 USCIS Interoffice Memorandum, Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators; Revisions to the Adjudicator’s Field Manual (Mar. 3, 2009).

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The one difference is that there is no requirement that the waiver be granted “for humanitarian purposes or to assure family unity.” That means one could argue that Congress intended for this waiver to be relatively easy for an LPR to obtain, as it may be granted for any reason. However, it would still be a good idea to document humanitarian and/or family unity considerations even though not required in the case of deportability. The waiver is still discretionary and so documentation of all equities is important.

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c. Curing document fraud with a waiver for fraud or misrepresentation If there has been no final administrative order under INA § 274C, a noncitizen might be able to clear up a document fraud problem with a waiver for fraud or willful misrepresentation, if the document fraud they committed also constitutes fraud or misrepresentation under INA § 212(a)(6)(C). See § 3.6 for a discussion of fraud and misrepresentation. Waivers for fraud and/or misrepresentation are available under either INA § 212(i) or § 237(a)(1)(H). The BIA upheld the availability of § 212(i) to waive acts that constitute document fraud as well as visa fraud, but limited it to the instance where the § 212(i) waiver is filed before the institution of proceedings under 274C. 28

Neither USCIS nor ICE has ever charged Sonya with document fraud or given her a notice for a § 274C hearing. If Sonya applies for adjustment and submits a visa fraud waiver based on hardship to her U.S. citizen mother, the USCIS might grant it and not charge her with document fraud under INA § 274C. Then she can immigrate. If the USCIS decides to charge her with document fraud, and she receives a final order, however, Sonya will be both ineligible to adjust her status and deportable with no relief from deportation. 29 See Matter of Delia Lazarte-Valverde, 21 I&N Dec. 214 (BIA 1996). In the past the INS said that if someone in Sonya’s position—a person who committed visa and document fraud and has not yet been summoned to a § 274C document fraud hearing—later submits an application to immigrate through a family visa and submits a § 212(i) waiver of fraud or misrepresentation, the USCIS would consider the waiver. If the USCIS grants the § 212(i) waiver, it will not try to bring the person to the § 274C document fraud hearing. 30 This policy is not codified in a regulation or decision, and there is no guarantee that the USCIS will always follow it. Moreover, now that there is a special waiver for document fraud as of April

28

Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996). Sonya is deportable because she entered the United States with a visitor’s visa. See INA § 101(a)(13). 30 See INS Central Office Letter to the San Francisco District Director (Mar. 1993), reprinted in Interpreter Releases, Vol. 71, No. 6, p. 219 (Feb. 7, 1994). 29

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Example: Sonya is applying for adjustment of status based on a petition by her U.S. citizen mother. Sonya tells you that she entered the United States on a visitor’s visa that she obtained from the U.S. Embassy in Poland using her sister’s identity and documents. What she did constitutes both visa fraud (lying to get an immigrant visa) and document fraud (using her sister’s documents to get an immigration benefit). Sonya does not have a spouse or child, and therefore would not be eligible for a document fraud waiver if she received a § 274C final order (the fraud was not to assist a spouse or child).

1997, the USCIS could change its policy. Advocates should stay abreast of developments and talk with other experienced advocates to see how the USCIS is handling these cases in your area. Note that the § 212(i) waiver for fraud or misrepresentation is different from the document fraud inadmissibility waiver in that it is available to spouses, sons and daughters of U.S. citizens and lawful permanent residents, and applicants must demonstrate that denial of admission would cause extreme hardship to the relative, not to the applicant him or herself. See § 3.6. d. Can LPR cancellation of removal under INA § 240A(a) cure document fraud for a permanent resident? YES, because LPR Cancellation of Removal contains no limitation on the grounds of inadmissibility or deportability that can be waived except for a conviction of an aggravated felony, if the person is otherwise eligible. 31 Similarly, there are other forms of relief available to someone despite have committed document fraud. See, e.g., Subsection D, Exceptions and Waivers, Subsection 3, Other forms of relief not barred by alien smuggling, above. B.

Deportability for Convictions of Document Fraud

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1. Ground of deportability for certain convictions under 18 USC § 1546 A person who is convicted of “a violation of, or an attempt or a conspiracy to violate, section 1546 of Title 18 (relating to fraud and misuse of visas, permits, and other entry documents)” is deportable under INA § 237(a)(3)(B)(iii). Section 1546 of Title 18 penalizes possession of fraudulent “visa, permit, border crossing car, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay of employment in the United States.” This deportation ground will only be triggered upon a conviction in federal court. However, a conviction here may not trigger deportation in every case. Because the language of INA § 237(a)(3)(B)(iii) refers only to violations of 18 USC § 1546 that relate “to fraud and misuse of visas, permits and other entry documents,” it seems that this deportation ground applies only to some of the offenses punishable under section 1546. In an unpublished decision, the BIA stated that it would give effect to this limiting language. 32 Therefore, you should argue that only convictions for offenses relating to the fraud and misuse of visas, permits and other entry documents under 18 USC § 1546 should trigger deportation under this ground. It is important to note that not all immigration documents will be considered entry documents falling under the statute. The Supreme Court held that an alien registration receipt card (green card) could not be deemed an entry document for purposes of convicting a defendant under (an earlier version of) 18 USC § 1546, because the card’s “essential purpose is not to secure entry into the United States, but to identify the bearer as a lawfully registered alien residing in the United States.” United States v. Campos-Serrano, 404 U.S. 293, 297 (1971). Therefore, a person 31

See § 240A(a) and Chapter 4. Matter of V-G-, A92 593 325 (BIA Mar. 22, 1999). To obtain a copy of this case, contact the National Immigration Project of the National Lawyers Guild at [email protected]. See also Kesselbrrenner, Rosenber, Immigr. Law & Crimes § 7:2 (Dec. 2016). 32

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convicted of selling green cards would not be deportable under this ground. In Matter of V-G-, mentioned above, the BIA found that a person convicted of an offense of trading in alien registration receipt cards (“green cards”) and fake social security cards was not deportable under this ground. However, one court has held that a noncitizen could be prosecuted under 18 USC § 1546(a) for possessing an authentic immigration document that was procured through a false statement. 33

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This ground of deportability should not be confused with the more common document fraud ground that depends upon a finding in a separate civil proceeding that the person has committed document fraud as defined in INA § 274C. 2. A conviction under 18 USC § 1546(a) may be an aggravated felony INA § 101(a)(43)(P) provides that the following is an aggravated felony: an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18, 34 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child or parent (and no other individual) to violate a provision of this Act.

A conviction under 18 USC § 1546(a) is an aggravated felony if a term of imprisonment of at least twelve months has been imposed. 35 For some reason, while other aggravated felony sentence requirements involve a one-year sentence imposed, this ground requires a sentence imposed of “twelve months.” There is an exception to this ground for a first offense committed only to help a parent, spouse or child commit a violation. Although there is no authority on point, ILRC believes the plain language of the statute allows that a person who assisted someone who later became a spouse, child or parent after the offense was committed (e.g., through marriage, creation of steprelationship, or adoption) should be held to come within the family relationship exception and not

33

U.S. v. Krstic, 558 F.3d 1010 (9th Cir. 2009). 18 USC § 1543 prohibits the counterfeiting, mutilation, or otherwise altering a passport or use of such an altered document. 35 INA § 101(a)(43)(P). 34

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18 USC § 1546(a) relates to fraud concerning any document required for entry into the United States. Notably, the aggravated felony ground of deportation for 18 USC § 1546, unlike the deportation ground, does not include the language “relating to entry documents.” Rather, it includes “relating to document fraud,” and therefore is much broader and would include alien registration cards.

have an aggravated felony conviction. This should be the case because there is no limiting language in the statute that says the relationship had to have existed at the time of the violation. 36 § 3.3

False Claim to U.S. Citizenship

A person who falsely represents, or has falsely represented, himself or herself to be a U.S. citizen for any purpose or benefit under the INA or any other federal or state law is inadmissible and deportable. INA § 212(a)(6)(C); INA § 237(a)(3)(D). This provision applies only to false representations of U.S. citizenship made on or after September 30, 1996, although false claims prior to that date may still fall within the fraud or misrepresentation ground of inadmissibility. No conviction is required. This ground of inadmissibility is harsh, both because it is broadly written and because the INA provides no general waiver. 37 However, a false claim does not bar all forms of relief. See Subsection C.

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These provisions punish people for claiming U.S. citizenship for entry into the United States, AND any other purpose under any federal or state law. Therefore, DHS could apply these provisions to someone who is under age and uses the U.S. passport of an older friend to get into a bar and have a drink, someone who votes in an election not realizing that she’s not permitted to vote, or someone who claims U.S. citizenship in order to get a job. A.

What Constitutes a False Claim to Citizenship?

By its plain language, the false claim to U.S. citizenship ground enacted in 1996 requires a showing that the false representation was made for a specific purpose—to satisfy a legal requirement or obtain a benefit that would not be available to a noncitizen under the INA or any other state or federal law. According to several circuit courts and USCIS, the person to whom the false claim to citizenship is made does not have to be a U.S. government official. Courts have found the following acts to constitute false claims to U.S. citizenship: • • • •

Falsely representing oneself as U.S. citizen to obtain a U.S. passport; 38 Using a false U.S. passport to enter the United States; 39 Using a false U.S. passport to obtain a state driver’s license; 40 Claiming U.S. citizenship in an attestation or I-9 form to obtain employment. 41

Some other examples of false claims to citizenship that the government may also charge include: oral statements made in response to questioning by an officer to obtain a benefit such as entry into the United States; a signature on a voter registration card that specifically asked the question 36

Compare INA § 237(a)(1)(E)(iii) (smuggling waiver of deportability requires that the family relationship had to exist “at the time of the offense”) with INA § 101(a)(43)(P) (family relationship exception to document fraud aggravated felony definition does not contain this limiting language). 37 While there is no specific waiver, someone inadmissible or deportable under this ground may still qualify for relief in removal proceedings, such as cancellation of removal. 38 Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009); see also Jackson-Omier v. Gonzales, 246 F. App’x. 1 (1st Cir. 2007); Suarez v. Attorney General, 299 F. App’x. 153 (3rd Cir. 2008). 39 Almendarez v. Mukasey, 282 F. App’x. 326 (5th Cir. 2008). 40 Lara-Rivas v. Mukasey, 270 F. App’x. 526 (9th Cir. 2008). 41 Kirong v. Mukasey, 529 F.3d 800 (8th Cir. 2008).

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“Are you a U.S. citizen?”; any false declarations of citizenship to obtain a credit card, bank financing, mortgage, student financial aid, or health insurance; and any other declaration under oath or penalty of perjury, in writing or orally, that the noncitizen was a U.S. citizen in order to obtain a benefit under the INA or other state or federal laws.

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However, some limitations have been placed on the application of this provision. For example, one court found that a false claim of U.S. citizenship to a police officer was not made for any purpose or benefit under the INA, even though the individual in question was undocumented, because the assumption that anyone who is undocumented would be making a false claim for any benefit or purpose under the Act was too speculative. Castro v. Attorney General of the U.S., 671 F.3d 356 (3rd Cir. 2012). In addition, in an unpublished BIA decision, a conditional resident’s purchase of a firearm by making a false claim to U.S. citizenship was not considered for “any purpose or benefit” under the Act because the person in question did not gain any benefit from the false claim, since he was eligible to purchase a firearm as a conditional permanent resident. See Appendix 3-A. The false claim also has to have been made knowingly. 42

Example: Silvia always thought she was a U.S. citizen, until she recently learned she had been born in Mexico. Silvia will not be inadmissible for any false claims to citizenship that she made if she can prove that she did not knowingly claim to be a U.S. Citizen. Example: Joaquin intentionally misrepresented himself as a U.S. citizen at the border in San Diego on January 12, 2000 in order to gain admission to the United States. Because he willfully misrepresented a material fact to a government official in order to gain a benefit under the INA and it took place after September 30, 1996, he is inadmissible both for misrepresentation of a material fact under INA § 212(a)(6)(C)(i) and for a false claim to U.S. citizenship under § 212(a)(6)(C)(ii). Example: Barbara used her cousin’s U.S. birth certificate to apply for a Social Security card and driver’s license in 1995. Barbara is not inadmissible for a false claim to U.S. citizenship because her false claim took place before September 30, 1996. She may have other problems, however. B.

False Claim to U.S. Citizenship from an I-9 Form

Does checking the box of an I-9 form that the person is “a citizen or national of the U.S.” constitute a false claim to citizenship? It depends upon the facts of the case, the I-9 Form used, and whether the person is subject to the grounds of inadmissibility or deportability. Federal law requires that all employers verify the 42

See, e.g., Letter from Department of State to Senator Harry Reid (Aug. 29, 2013); Letter from Department of Homeland Security to Senator Harry Reid (Sept. 12, 2013).

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Example: Omid and Marianna each arrive at a U.S. port of entry. Marianna uses a false “green card” to claim she is a legal permanent resident, but Omid uses a false U.S. passport to claim he is a U.S. citizen. Both are inadmissible for misrepresenting a material fact under INA § 212(a)(6)(C)(i). However, Omid will face far harsher consequences for his false claim to U.S. citizenship under § 212 (a)(6)(C)(ii), as he will be permanently inadmissible. Marianna, on the other hand, may be able to apply for a waiver for her misrepresentation.

eligibility of their potential employee by, for example, completing an employment verification form, called the I-9 Form. 43 The former I-9 Form had a question with a check-off box asking whether the person was a “U.S. citizen or national.” Because the question on the I-9 form included both U.S. citizen and national, an applicant could argue that she was claiming to be a national. Absent evidence that the person specifically claimed that she was a U.S. citizen, signers argued (and could still argue if they signed this particular I-9 Form) that they do not fall within this ground.

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As of April 3, 2009, a new I-9 Form was instituted, eliminating the ambiguity as to whether the person was indicating citizen or national when she checks the box. This revised form now has separate boxes differentiating between “Citizen” and “Non-citizen National” of the United States. Thus, checking the “U.S. citizen” box will have clearer consequences under this ground. While there are many cases (see below) finding that checking the box, coupled with testimony from the immigrant, is sufficient the find someone inadmissible or deportable under this ground, the BIA in an unpublished decision held that a woman who checked the U.S. citizen or national box on the former I-9 Form did not trigger the false claim to U.S. citizenship ground of inadmissibility to bar her adjustment of status. 44 In that case, some of the factors the court considered in finding that she did not make a false claim were that she consistently testified that she claimed to be a U.S. national and not a U.S. citizen, she believed that by claiming that she was a national she was claiming that she was born in the United States but not that she was a U.S. citizen, and her limited English abilities accounted for her checking the box. At least three circuit courts rejected the argument that checking the box on the former I-9 Form does not trigger the false claim ground. For example, the Eighth Circuit, in Rodriguez v. Mukasey, held that a person’s testimony that he had submitted several fraudulent documents such as a driver’s license and social security card (both of which he obtained by falsely claiming to be a U.S. citizen) in conjunction with the I-9 Form was sufficient to prove a false claim to U.S. citizenship. 45 The court rejected his argument that his checking the box on the I-9 Form did not constitute substantial evidence to prove he represented himself as a citizen; the court specifically pointed out that “he did not testify and does not argue that he meant to indicate that he was national. Instead, he claims that he did not understand what it meant when he marked [the box].” In this case, therefore, the totality of the circumstances, including admissions to an officer that he obtained fraudulent documents in another’s name, the circumstances surrounding his submission of the I-9 Form, and his failure to provide evidence that he claimed national status led to the conclusion that he falsely claimed to be a U.S. citizen.

43

8 USC § 1324a makes it illegal for almost any employer—public or private—to hire or continue to employ an unlawful or unauthorized alien. 8 USC § 1324a(b) requires employers to verify the eligibility of their potential employee. 44 Matter of [Name Withheld] [A number withheld] (BIA Apr. 27, 2007), available in 84 Interpreter Releases 1088 (May 14, 2007); see also Matter of James Ochieng Oduor, A 75 904 456 Dallas (BIA Mar. 15, 2005) (DHS, by providing a signed Form I-9 with the box checked confirming he was either a U.S. citizen or national, did not show by clear and convincing evidence that the respondent falsely misrepresented himself as U.S. citizen). 45 519 F.3d 773 (8th Cir. 2008).

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Similarly, in Kechkar v. Gonzales, 46 and Crocock v. Holder, 47 the Tenth and Second Circuits, respectively, held that a person who checked the “citizen or national” box on the former I-9 Form had the burden to prove that he intended to claim status as a national and upheld the lower courts’ findings in each case that the person did not have such intent.

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USCIS recognizes that merely checking the “citizen or national” box on the I-9 does not itself establish a false claim to citizenship, absent some evidence that the person intended to claim that she was a citizen. 48 However, if it appears the client had no idea what it meant to be a non-citizen national and intended to claim to be a citizen, then INA § 212(a)(6)(C)(ii) will likely be found to apply. 49 USCIS directs officers to attempt to establish during an interview exactly what the individual intended to indicate by checking the box on the I-9. 50 Advocates should therefore explore the defense that some evidence is needed to prove that the client intended to claim she was a citizen specifically. This argument has succeeded in some criminal prosecutions for false claims to citizenship. Burden of Proof and False Claims to U.S. Citizenship. In Rodriguez v. Mukasey and Kechkar v. Gonzales, above, the individuals were applying for adjustment of status and therefore were subject to the grounds of inadmissibility. They therefore had the burden of proving that they were admissible. 51 On the other hand, where an LPR is charged with deportability for a false claim to citizenship or even with inadmissibility for a false claim of citizenship as an arriving alien, the government has the burden to prove that the person falsely claimed to be a U.S. citizen. 52

PRACTICE TIP: In cases where DHS is charging deportability based on a false claim to U.S. citizenship, you should hold them to their burden of proving by clear and convincing evidence that your client misrepresented himself as a citizen.

46

500 F.3d 1080 (10th Cir. 2007). 670 F.3d 400 (2nd Cir. 2012). 48 See Karaouni, 379 F.3d 1139 (9th Cir. 2004). 49 See Matter of Odour, 2005 WL 1104203 (BIA Mar. 15, 2005); Matter of Soriano-Salas (BIA June 5, 2007). 50 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 27 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 51 See Chapter 1, § 1.4, Subsection B. 52 See Chapter 1, § 1.4. 47

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Proof that the person checked the box on the I-9 form alone does not suffice to meet this burden. Therefore, LPRs have an advantage over other noncitizens when charged with a false claim to U.S. citizenship.

C.

Exceptions, Waivers, and Other Defenses for False Claim to U.S. Citizenship 1. Narrow exception to both the inadmissibility and deportability grounds

There is a limited statutory exception for certain children of U.S. citizens. If the person meets the following requirements, she will not be inadmissible or deportable for a false claim to citizenship: 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. (A reasonable belief must take into consideration the totality of the circumstances.) See INA § 212(a)(6)(C)(ii)(II); INA § 237(a)(3)(D)(ii). This change in the law is retroactive and cures false claims that took place on or after September 30, 1996.

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Note that this exception is limited and does not apply to children of lawful permanent residents or undocumented immigrants, or children with only one U.S. citizen parent, even if they really believed themselves to be U.S. citizens. Furthermore, the Ninth Circuit, in Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008), held that individuals born out of wedlock who reasonably believed both parents were U.S. citizens cannot fall under this exception where it can be established that either parent is not in fact a citizen. 2. Defense for minors and others who made the claim unknowingly Anyone who can prove that that the false claim was not knowingly made—meaning, the person believed she was a U.S. citizen—can assert as an affirmative defense that she does not come within the inadmissibility or deportability ground. In the fall of 2013, the government announced that it will consider it as a separate and affirmative defense for minors if the person can show that she was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity to understand and appreciate the nature and consequences of a false claim to citizenship. 53 The noncitizen has the burden to show that she meets both of these criteria. This policy update is not a change in statute but is an interpretation in line with case law that indicates that any misrepresentation must be made knowingly. Anyone who truly believed she was a U.S. citizen should not be inadmissible in light of this policy update, even if the person was not a minor.

53

Letter from Department of State to Senator Harry Reid (Aug. 29, 2013); Letter from Department of Homeland Security to Senator Harry Reid (Sept. 12, 2013).

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3. Curing a false claim to citizenship with a timely and voluntary retraction A timely and voluntary retraction may cure a false claim to citizenship,54 as with visa fraud and other misrepresentations. 55 Whether a retraction will be deemed to be timely and voluntary depends on the circumstances. The retraction generally must occur before completion of the statement and be made of the person’s own volition, e.g., before discovery of the misrepresentation by the officer.

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The BIA held that a timely retraction was made where a person volunteered that he had entered the United States unlawfully before he completed his statement during an interview with an immigration officer at an airport. In that interview, he attempted to establish that he was lawfully residing in the United States. Matter of M-, 9 I&N Dec. 118 (BIA 1960). The Ninth Circuit in an unpublished opinion found that a person made an effective retraction when after a border patrol officer asked for documentation of his citizenship, he promptly told the officer that he only had a work permit. 56 The Court found that he understood little English and provided clear, consistent testimony that he claimed U.S. citizenship only because he misunderstood the primary inspector’s question. Many cases have held that a retraction will not be considered timely or voluntary where it occurred long after the false statement was made or if the retraction was made after the person has realized that the claim had not deceived a DHS officer. 57 A false claim to U.S. citizenship does not apply if someone else made the false claim on behalf of the applicant, such as a parent making the claim for a child. 58

54 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 28 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 55 FAM 40.63 N4.6 (“a timely retraction will serve to purge a misrepresentation and remove it from further consideration as a ground for INA § 212(a)(6)(C)(i) ineligibility”); see also Llano-Senarillos v. United States, 177 F.2d 164, 165 (9th Cir. 1949) (“If the witness withdraws the false testimony of his own volition and without delay, the false statement and its withdrawal may be found to constitute one inseparable incident out of which an intention to deceive cannot rightly be drawn”). 56 Olea-Reyes v. Gonzales, 177 F. App’x. 697 (9th Cir. 2006). 57 Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973) (finding retraction after a year and where disclosure of falsity of statements was imminent to be neither timely nor voluntary); Matter of Ngan, 10 I&N Dec. 725, 727 (BIA 1964) (retraction made three years later not timely); Angeles-Robledo v. Attorney General, 183 F. App’x. 159 (3rd Cir 2006) (not effective recantation where person did not recant her claim to U.S. citizenship until her second interview in which she was confronted with third-party evidence of her falsity and where her traveling companion was the first to inform the border authorities that she was not a U.S. citizen); Llanos-Senarillos v. United States, 177 F.2d 164, 165-66 (9th Cir. 1949) (retraction during examination not timely or voluntary where witness realized that the false testimony would not deceive). 58 Cable, Albright, Sec. of State, DOS-17342, 96 Stat. 239978 (Sept. 17, 1997) reprinted in 74 Interpreter Releases 1483-85 (Sept. 29, 1997). Some practitioners have argued that if someone other than the minor indicated that the minor was a U.S. citizen by presenting invalid documents at the border, the child did not make a false claim to U.S. citizenship or engage in visa fraud, but rather made an entry without inspection.

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4. Another person made the false claim to U.S. citizenship on behalf of the applicant

NOTE: USCIS may still find persons who made false claims to U.S. citizenship prior to September 30, 1996 inadmissible under INA § 212(a)(6)(C)(i), for misrepresentation, if the claim rises to the level of material misrepresentation to obtain an immigration benefit.59 5. Options for false claim to U.S. citizenship The penalties of the false claim to U.S. citizenship inadmissibility ground are harsh. A person who falls within this ground may be permanently inadmissible, as there is no general waiver provided. However, there are certain forms of relief that have exemptions or waivers for this ground. For example, there is an exemption for Special Immigrant Juvenile Status applicants, and a waiver available for U and T nonimmigrant status applicants. In addition, a false claim to U.S. citizenship is not a bar to asylum and withholding of removal. The person may also seek the exercise of discretion if applying for a non-immigrant visa under INA § 212(d)(3)(A) or § 212(d)(3)(B); or if in proceedings in the United States, cancellation of removal might be an option. For those who are seeking non-LPR cancellation, VAWA, or naturalization, a false claim to citizenship might also impact the applicant’s ability to demonstrate good moral character. 60

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Advocates should also be aware that a conviction (or absent a conviction, a formal admission) of a false claim to U.S. citizenship where fraud is involved will have the additional consequence of being a crime involving moral turpitude, potentially triggering inadmissibility and/or deportability. WARNING: A False Claim to Citizenship May be a Crime Involving Moral Turpitude. A conviction (or absent a conviction, a formal admission) of a false claim to U.S. citizenship where fraud is involved will have the additional consequence of being a crime of moral turpitude triggering inadmissibility and/or deportability. See Chapter 2. § 3.4

Illegal Voting

There are both inadmissibility and deportation grounds prohibiting illegal voting. See INA § 212(a)(10)(D)(i) and § 237(A)(6). Both grounds apply to any noncitizen “who has voted in violation of any federal, state or local constitutional provision, statute, ordinance, or regulation.” These grounds apply to “voting occurring before, on, or after” September 30, 1996; in other words, at any time. 61 No conviction is required.

See Children Lack Capacity to Make False Claims or Misrepresentations, IJ Holds in 83 Interpreter Releases 775-776 (Apr. 24, 2006). 59 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 28 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 60 See 12 USCIS-PM F.5; Matter of Guardarrama, 24 I&N Dec. 625 (BIA 2008). 61 INA § 237(a)(6), INA § 212(a)(10)(D). Effective date supplied by IIRIRA § 347 and Child Citizenship Act of 2000 § 201(b)(1), title II.

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As with the false claim to U.S. citizenship ground, this is a harsh provision with no waivers, although there are certain forms of relief that are not barred by illegal voting, such as cancellation of removal for permanent residents under INA § 240A(a). A.

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What Constitutes Illegal Voting?

The definition of unlawful voting in both INA § 212(a)(10)(D)(i) and INA § 237(a)(6) does not require guilty knowledge; it appears to include people who innocently believed that they were entitled to vote, which is a common mistake. The key to assessing whether illegal voting has occurred is not just if the person voted, but also if they did so in violation of some federal, state or local law. Practitioners should identify and analyze the voting law that was violated, and determine if there was a requirement of guilty knowledge or some other specific intent. For example, in California, a person can only violate local election law if she voted with fraudulent intent. 62 Thus, accidentally voting in a California local election would not be unlawful voting. By contrast, the DHS may argue that violation of a law with no intent requirement, such as a regulation stating who can vote, will be a basis for a finding of inadmissibility or deportability. For example, 18 USC § 611 makes voting by a noncitizen in a federal election unlawful, with no intent or knowledge requirement. A noncitizen, therefore, who voted in a federal election could be found removable even if she did not have any knowledge that she was prohibited from voting. If the voting occurred on or after September 30, 1996, this could also constitute a false claim to citizenship and thus trigger removability.

The DHS might be persuaded to recognize the unfairness in targeting individuals who made an innocent mistake when voting and did not intend to do anything wrong even if the relevant election statute does not impose a mens rea requirement like that in MacDonald. B.

Exceptions and Waivers for Illegal Voting 1. Narrow exception to the illegal voting inadmissibility and deportability provisions

Under INA § 212(a)(10)(D) and § 237(a)(6)(B), individuals who meet the following requirements will not be subject to the immigration and criminal consequences of having voted unlawfully.

62

California Election Code § 18560 states: “Every person is guilty of a crime punishable by imprisonment in the state prison … who: (a) Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election.” 63 MacDonald v. Gonzales, 400 F.3d 684 (9th Cir. 2005).

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There is at least one federal case analyzing the illegal voting removal provision that practitioners should consult. In MacDonald v. Gonzales, the Ninth Circuit considered whether a woman was deportable for voting in violation of a Hawaii election law which provided that, “any person who knowingly votes when the person is not entitled to vote” is guilty of a felony. 63 While the Ninth Circuit did not explicitly hold that guilty knowledge or other specific intent is actually required to fall under the unlawful voting ground, it held that a court must find that the noncitizen violated all of the provisions of the law at issue to be removable. The Ninth Circuit held that the correct standard under the Hawaiian law at issue not only required that the petitioner knowingly voted, but also that she knew she was not entitled to vote. Because the woman was not aware that she was ineligible to vote, she was not deportable.

Note that this same narrow exception applies to individuals who have falsely claimed to be U.S. citizens (see § 3.7): 1. Each natural/adopted parent of the person is or was a U.S. citizen; 2. The person began to reside permanently in the United States before the age of sixteen; and 3. The person reasonably believed at the time of such statement, violation, or claim that he or she was a citizen of the United States. Effective Date: This change in the law is retroactive and cures false claims and illegal voting that took place before or after the enactment of the relevant statutes.

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Example: Sofia told her daughter Claudia that she was a U.S. citizen. Under the belief that she was a citizen, at age 22 Claudia applied for a U.S. passport using the birth certificate her mother said belonged to her. In fact, the birth certificate was false and Sofia had lied to Claudia all those years. Both Claudia and her mother were in fact undocumented. Claudia, thinking that she was a U.S. citizen, had also voted. Unfortunately, Claudia is subject to the immigration penalties for unlawful voting because she does not qualify for the narrow exception. However, Claudia should not fall within the inadmissibility ground for false claim to U.S. citizenship since USCIS recognizes that a false claim to U.S. citizenship requires knowledge of the falsity. See § 3.7. 2. Waivers for illegal voting Like false claim to U.S. citizenship, there is no general inadmissibility waiver for unlawful voting. However, unlawful voting is not a bar to asylum or restriction on removal, and can be waived for the U visa, T visa, and some other forms of relief. There is no statutory bar against the act or conviction of unlawful voting for applicants requesting cancellation of removal, although unlawful voting might impact the applicant’s ability to demonstrate good moral character. WARNING: Unlawful Voting May Carry Other Possible Immigration Consequences. With very few exceptions, 64 only U.S. citizens are qualified to vote in federal, state, and local elections. Consequently, when a non-citizen votes in an election, she may face adverse immigration consequences: grounds of inadmissibility or deportability, criminal sanctions, or a discretionary denial of good moral character for naturalization purposes, if within the statutory time period. Additionally, unlawful voting and false claim to U.S. citizenship are often intertwined. If a client may be subject to one of these grounds, be mindful to screen for issues arising from the other ground. A conviction or formal admission of illegal voting could also be considered a crime of moral turpitude if there was a specific intent or guilty knowledge requirement involved. See § 3.21.

64

Some municipalities allow lawful permanent residents and/or nonresident aliens to vote in municipal elections. For more information, see Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects for Change, 18 Law & Ineq. 271 (Summer 2000); Tara Kini, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 Calif. L. Rev. 271 (Jan. 2005).

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§ 3.5

Inadmissible at Time of Admission and Now Removable

Sometimes a lawful permanent resident (LPR) may be found inadmissible or deportable if, at the time he or she applied for an immigrant visa or adjustment of status, he or she was not eligible, but obtained it either through a misrepresentation or a mistake. The same can happen to an LPR who was not eligible to re-enter the United States after a trip abroad but was somehow allowed to do so because of misrepresentation or a mistake.

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The misrepresentation or mistake may be discovered years later, often when the person attempts to naturalize. People in this situation can be charged with being deportable because they were inadmissible at the time of their admission under INA § 237(a)(1)(A). For example, persons are often found deportable for being inadmissible at the time of admission due to the fact that they committed a material misrepresentation to gain admission. These persons could also be charged with being inadmissible under INA § 212(a)(5) [labor certification requirements] or § 212 (a)(7)(A)(i) [invalid documentation].

Example: In 2006, Virginia, a lawful permanent resident, was convicted of receipt of stolen property, a crime involving moral turpitude, and sentenced to eight months. In 2007, she left the country to visit her family in the Philippines. When she returned from her trip, she was not questioned at the border regarding her offense and was permitted to re-enter the United States. In 2011, she applied for citizenship. She was not found eligible for citizenship because USCIS did not consider her to be a lawful permanent resident. She was also referred to removal proceedings for being deportable under INA § 237(a)(1)(A) as someone who was inadmissible at admission because she was inadmissible upon her 2007 admission to the United States. Typical grounds of inadmissibility for which someone becomes removable for having been inadmissible at admission include: people who were convicted of certain moral turpitude or drug crimes, 68 people who have certain physical or mental disorders, 69 people likely to become a

65

See Chapter 1, § 1.3, for a description of who falls within INA § 101(a)(13)(C). See INA § 101(a)(13)(C) & Chapter 1, § 1.3. 67 See INS Interpretations 318.2 and 318.3. 68 See INA § 212(a)(2). 69 See INA § 212(a)(1). 66

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Any lawful permanent resident who falls within INA § 101(a)(13)(C) is subject to the grounds of inadmissibility when she tries to return to the United States. 65 A lawful permanent resident may be deportable for being inadmissible at admission because she was not eligible for re-entry as a result of falling into these categories. Even if she has already made it back into the United States, a lawful permanent resident is considered to have been improperly admitted if she was inadmissible upon making a new “admission” to the United States. 66 According to the USCIS, such an individual is no longer considered to be a lawful permanent resident under INA § 101(a)(20) because her unlawful admission caused her status to change when she returned to the United States and therefore she is ineligible for citizenship. 67 The individual cannot officially lose her status as a lawful permanent resident, however, until she has been found removable by an immigration judge or the BIA.

public charge, 70 people who smuggled aliens into the United States, 71 people who committed visa fraud, 72 people who are subject to a final order of civil document fraud, 73 and others. 74 Waivers. There are two waivers to cover this removal ground. People who are charged with being deportable under INA § 237(a)(1)(A) may be eligible for a waiver of deportability under INA § 237(a)(1)(H). To qualify for the waiver the person must have a qualifying relative and be in possession of an immigrant visa and otherwise be admissible at the time of admission to the United States. People who are found inadmissible under INA § 212(a)(5) for failure to meet the labor certification requirements or under § 212(a)(7)(A)(i) for invalid documentation may be eligible for a waiver under INA § 212(k). This waiver does not cover acts of misrepresentation or fraud, but only admission due to a mistake that they could not have known of. 75 § 3.6

Inadmissible for Misrepresentation and/or Fraud

Under INA § 212(a)(6)(C)(i), a person who, by fraud or willful misrepresentation of a material fact, has obtained or tried to obtain a visa, other documentation, or admission into the United States or some other benefit under the INA is inadmissible. It is important to be familiar with this provision in case your lawful permanent resident client is charged with having been inadmissible at the time of admission and is therefore ineligible for cancellation of removal for lawful permanent residents. 76

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A.

What Kind of Conduct Will Trigger This Ground of Inadmissibility?

It’s not hard to figure out that if someone is admitted to the United States by lying about their identity, that person is subject to this ground of inadmissibility. However, real life is not always that black and white. Before you concede that your client comes within this ground, you must understand what kind of conduct will trigger this ground. A person is inadmissible under this ground if: 1. 2. 3. 4.

She made a misrepresentation; To an official of the U.S. government; The misrepresentation was willful; and The misrepresentation was material.

Let’s see what each of these things mean: 1. Materiality What does “misrepresenting a material fact” mean? Basically it means telling an important lie—a lie that could make a difference in the government’s decision. The lie does not have to actually

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See INA § 212(a)(4). See INA § 212(a)(6)(E). 72 See INA § 212(a)(6)(C)(i). 73 See INA § 212(a)(6)(F). 74 For a complete list of the grounds of inadmissibility, see INA § 212(a). 75 A discussion of both of these waivers is in Chapter 8. 76 See Chapter 4. 71

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influence the government’s decision; it only matters that it could have. 77 If the lie was not material (important to the case), the person is not inadmissible. Example: Estella immigrated through her U.S. citizen husband. During her interview, she told two lies to the consular officer when she got her immigrant visa. First, she told the officer that she had no other relatives living in the United States. Second, she told the officer that she and her husband were still married, when in fact they are divorced.

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The first lie was not material. The fact that Estella has other relatives in the United States would not have changed the officer’s decision. While this was a lie, it was not material in this case and therefore was not visa fraud. The second lie was material. If the officer had known Estella and her husband were divorced, he would not have granted the visa, which was based on the marriage. Estella committed visa fraud.

2. Misrepresentation The term “misrepresentation” means a statement or showing that is not in accordance with the facts. Misrepresentation requires an affirmative act taken by the immigrant. Thus, in determining whether a misrepresentation has been made, it also is necessary to distinguish between misrepresentation of information and information that was merely concealed by the person’s silence. “Silence or the failure to volunteer information does not in itself constitute a misrepresentation for the purposes of INA § 212(a)(6)(C)(i).” 9 FAM 40.63 N4.2. Example: Maria adjusted her status to become a lawful permanent resident through her U.S. citizen husband. When she first came to the United States, she used a visitor visa that she had obtained earlier, before she decided to marry her husband. She used the visitor visa again more recently, after she was engaged to her husband and was planning to remain in the United States and become a permanent resident. However, upon her arrival to the United States the consular officer did not ask her how long she was going to stay, or whether she had any relatives in the United States. He just looked at her passport and granted her admission. Maria has not committed fraud or misrepresentation, because she never told a lie to a consular or immigration officer. 77 See Matter of D-R-, 25 I&N Dec. 445, 450-51 (BIA 2011) (It is “not necessary for the Government to show that the statement actually influenced the agency, only that the misrepresentation was capable of affecting or influencing the government’s decision”). 78 8 USCIS-PM J.3(E). 79 Id; see also Matter of S- and B-C-, 9 I&N Dec. 436 (BIA 1961).

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USCIS policies instruct officers to follow a test for materiality provided by the U.S. Supreme Court in Kungys v. United States, 485 U.S. 759 (1988). This test requires that for false statements to be material they must have been “predictably capable of affecting the decisions of the decisionmaking body.” 78 The policies further instruct officers in applying this standard to consider whether either: 1) the alien is inadmissible, removable, or ineligible for the benefit sought under the true facts; or 2) the misrepresentation “tends to cut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he or she is inadmissible.” 79

3. The misrepresentation was made to a U.S. government official In addition, before a misrepresentation will trigger INA § 212(a)(6)(C)(i), it must have been made to an official of the U.S. government—generally speaking, a consular officer or a DHS officer. 80 Misrepresentations made to airline officials, for example, do not fall within this ground of inadmissibility. 81 Example: Lourdes, a citizen of Mexico, has a Border Crossing Card (BCC), but has been secretly living and working in the United States. Last year when she tried to re-enter the United States, a CBP officer refused to admit her, but let her leave on her own and did not take away her BCC. He did mark her passport, though. Lourdes pretended she lost her Mexican passport and applied for a new one. She then successfully entered the United States in 2006 using her new passport and her Border Crossing card. Lourdes lied to a Mexican government official to get her new Mexican passport. That lie, however, does not trigger § 212(a)(6)(C)(i), because it was not made to a U.S. government official. However, she did conceal her old passport from CBP, and that concealment might trigger INA § 212(a)(6)(C)(i).

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4. Willfulness A person will not be found inadmissible under INA § 212(a)(6)(C)(i) unless the misrepresentation was willful, meaning that it was “deliberate and voluntary.” 82 This means that a misrepresentation cannot be based on “innocent mistake, negligence or inadvertence,” 83 and that the person must know that the statement was false at the time she made it. 84 Individuals who are mentally incompetent, and small children incapable of forming an intent to deceive will not be inadmissible under this section, should applications made on their behalf contain misrepresentations. 85 Example: Maria came to the United States when she was five, accompanied by her aunt, who told the border patrol official that Maria was her daughter Amalia, and showed the officer her daughter’s green card and passport. Maria and her cousin Amalia look very much alike, and the officer let Maria in, thinking Maria was Amalia. Maria is not inadmissible under § 212(a)(6)(C)(i) because she was incapable of forming an intent to deceive at that age and also was not the one who lied.

80

9 FAM 40.63 N4.3. See Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 82 Matter of D-R-, supra, at 451 n.3. 83 Emokah v. Mukasey, 523 F.3d 110, 117 (2nd Cir. 2008). 84 See, e.g., Atunnise v. Mukasey, 523 F.3d 830, 834-38 (7th Cir. 2008); Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995); Garcia v. INS, 31 F.3d 441 (7th Cir. 1994). 85 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 22 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). The only case on point presently regarding this issue is Singh v. Gonzalez, 451 F.3d 400, 409 (6th Cir. 2006), although the BIA and other circuits have cited to Singh favorably when distinguishing other situations involving imputation of parental intent. 81

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B.

Burden of Proof

In general, individuals seeking an immigration benefit must prove by a preponderance of the evidence that they do not fall under any ground of inadmissibility. Absent evidence that that the applicant used fraud or misrepresentation to obtain an immigration benefit, the applicant will have met the burden of proving she is not inadmissible under INA § 212(a)(6)(C)(i). 86 Where evidence exists that would permit a reasonable person to conclude that an individual is inadmissible under INA § 212(a)(6)(C)(i), the individual has the burden of proving by a preponderance of the evidence that she did not trigger that ground. Thus, in response to an allegation of misrepresentation, she must prove any one of the following: • • • • • C.

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There was no fraud or misrepresentation; Any fraud or misrepresentation was not intentional or willful; Any fraud or misrepresented fact was immaterial; The fraud or misrepresentation was not made to procure a visa, admission, or some other benefit; or The misrepresentation was not made to a U.S. government official.87 Timely Retraction

The period of time in which the retraction is “timely” is subject to varying interpretations. Generally, the BIA and USCIS take the position that the retraction must be within a very short period of time of the misrepresentation, at the “first opportunity.” 91 However, the Sixth Circuit

86

8 USCIS-PM J.3(A); see Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991). 8 USCIS-PM J.3(A). 88 8 USCIS-PM J.3(A). 89 See USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 21 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2 009/section212_a_6_immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 90 Id. (citing, among other cases, Llanos-Senarrilos v. United States, 177 F.2d 164 (9th Cir. 1949)). 91 Matter of Namio, 14 I&N Dec. 412 (BIA 1973) (retraction must be “timely and without delay”); Eid v. Thompson, 740 F.3d 118, 125 (3rd Cir. 2014) (retraction was not timely after bona fides of marriage were already called into question); Valadez-Munoz v. Holder, 623 F.3d 1304, 1309-10 (9th Cir. 2010) (retraction after being confronted with inconsistencies and biographical information not timely); see USCIS, Section 212(a)(6) of the INA, Illegal Entrants and Immigration Violators, at 21 (Mar. 3, 2009), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/section212_a_6 _immi_natl_act_illegal_violators.pdfp; see also Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 87

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As a defense to a charge of inadmissibility based on fraud or misrepresentation, a person can show that she timely retracted the false statement. 88 An applicant who timely and voluntarily retracts a misrepresentation may use such retraction to eliminate the consequences, including inadmissibility. 89 For a retraction to be effective, it has to be voluntary and timely. A retraction is only timely if it is made both within a short period of time and not in response to the fact that the individual is about to be found out by a DHS or consular officer. 90

has held that the period of time is not as critical as a determination of whether the misrepresentation was about to be discovered by the government. 92 D.

Waiver of § 212(a)(6)(C)(i) under § 212(i)

INA § 212(a)(6)(C) can be waived at the discretion of USCIS or an immigration judge under INA § 212(i). This remedy is most likely to come into play where your LPR client is deemed to be an arriving alien under INA § 101(a)(13)(C), where he or she is applying for re-adjustment of status, or where he or she is charged with being inadmissible at the time of original admission under INA § 237(a)(1)(A). 93 To be eligible to apply, the person must: • •

Be the spouse, son, or daughter of a U.S. citizen or lawful permanent resident, and Show that the U.S. citizen or lawful permanent resident relative would suffer extreme hardship if the USCIS denied the waiver.

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USCIS issued hardship guidance in November of 2016 outlining the factors to be considered when adjudicating waivers that require a showing of extreme hardship. 94 See Chapter 10 for a discussion of hardship and common hardship factors. A waiver under INA § 212(i) can also be used to waive false claims to U.S. citizenship that occurred before September 30, 1996. False claims to U.S. citizenship that occurred on or after September 30, 1996 cannot be waived. 95 A waiver under § 212(i) may also waive deportability for document fraud as long as there has been no conviction and no final administrative order under INA § 274C. 96 If there is a criminal conviction for misrepresentation, the person still may be able to apply for cancellation of removal, a waiver under INA § 212(h), or other forms of relief such as asylum, U visa, and T visa. 97 § 3.7

Abandonment of Residence: Losing One’s Permanent Resident Status

Lawful permanent residents must be careful if they have had prolonged or repeated absences from the United States, because immigration authorities could believe that they have abandoned their residence. Only an immigration judge can make a final determination as to whether one has abandoned his residence. Abandoning one’s residence terminates one’s lawful permanent resident status, and the person can be removed from the United States. 98 If a parent abandons her 92

Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014) (holding that four years later was not too long for retraction when there was no likelihood of discovery by the government). 93 However, as noted in § 8.1, Subsection A, a waiver under INA § 237(a)(1)(H) may be preferable to the § 212(i) waiver for those deemed deportable under INA § 237(a)(1)(A). 94 9 USCIS-PM B, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB.html. 95 See § 3.3 above. 96 See § 3.2 above. 97 See Chapters 4 & 6. 98 See INA § 101(a)(27)(A); Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Even if a lawful permanent resident had already entered the United States, if she had abandoned her residence at any time, the USCIS or

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residence and takes her child with her, the child also will be found to have abandoned her residence. 99 There are exceptions to the abandonment of residence rule for someone who is lawfully admitted for permanent residence, is the spouse or child of a member of the Armed Services of the United States, and is authorized to accompany and reside with the member of the Armed Forces abroad. 100 A.

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Why Can a Person Who Is Presently in the United States be Removed for Abandoning Her Residence?

Essentially, a lawful permanent resident is someone who has the right to reside permanently in the United States so long as her status does not change. 101 A lawful permanent resident who makes a temporary visit abroad is permitted to re-enter the United States as a “special immigrant.” 102 If the lawful permanent resident’s trip abroad was more than a “temporary absence,” the USCIS, CBP, or ICE could find that she abandoned her residence and is thus no longer a lawful permanent resident. Therefore, she can no longer be admitted to the United States as a “special immigrant” because her status has changed. This status change means that she was no longer lawfully admitted for permanent residence under INA § 101(a)(20). When she came back into the United States, even if she was allowed back in, she really entered without a valid visa and was therefore inadmissible under INA § 212(a)(7)(A)(i)(I). Since she was inadmissible at time of admission, she is presently removable under INA § 237(a)(1)(A). 103 How Long Does a Person Have to Be Absent to Risk Abandoning Her Residence?

There is no set time period to measure how long a person’s absence can be before she can be found to have abandoned her residence. Instead, it is determined on a case-by-case-basis. Often, but certainly not always, the reality is that if someone has been abroad for less than six months, she will likely not be asked questions about abandonment when she returns to the United States. Such questions are more likely if the person has returned to the United States for a brief period before the six-month mark on multiple consecutive occasions, suggesting that she is not residing in the United States but only returns every so often to avoid spending six months abroad. On the other hand, if she is absent for more than one year, she may well be charged with abandonment. If

ICE could decide that she abandoned her residence and place her in removal proceedings for a judge to determine if she did indeed abandon her residence, and is thus no longer a lawful permanent resident under INA § 101(a)(27). Additionally, she could be found to be removable under INA § 241(a)(1)(A) as someone who was inadmissible at time of admission or under INA § 212(a)(7)(A)(i) as someone who entered the United States without a valid unexpired immigrant visa. Although there is no waiver for abandonment of residence, there is a 212(k) waiver of INA § 212(a)(7)(A)(i). For more information about this waiver, see Chapter 8. 99 See Matter of Zamora, 17 I&N Dec. 395 (BIA 1980); Matter of Favela, 16 I&N Dec. 753 (BIA 1979). 100 INA § 284(b). 101 INA § 101(a)(20). 102 INA § 101(a)(27). 103 See Matter of Huang, 19 I&N Dec. 749 (BIA 1988).

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B.

she was gone for more than one year, it may be difficult, but certainly not impossible, for a judge to find that she did not abandon her residence. 104 But note that a permanent resident who was abroad for any period of time, including for less than six months, could be found to have abandoned her residence if in fact she intended to move her home from the United States to another country. It all depends on the circumstances of the absence. 105 It is important to note that a legal permanent resident retains her status until there is a final administrative order of removal issued. 106 C.

Government’s Burden to Prove Abandonment of Residency

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Anyone accused of abandoning his or her residence is entitled to a hearing in front of an immigration judge. It is ICE’s burden to prove that there is “clear, convincing and unequivocal” evidence that someone has abandoned his residence; but the courts will decide whether ICE met its burden by utilizing only a “substantial evidence” standard of review. See Khodagholian v. Ashcroft , Hana v. Gonzales, and Matter of Huang, cited above. To determine if a lawful permanent resident has abandoned her residence, ICE looks to the person’s intention in going abroad. If the person intended to permanently leave the United States, the ICE, and eventually the courts, probably will find that he or she abandoned his or her residence. If he or she only went abroad intending to stay for a short time or a temporary, finite period, generally ICE, and the courts, should find that he or she has not abandoned his or her residence. Even though ICE has the burden of proving by “clear, unequivocal, and convincing evidence,” 107 that a lawful permanent resident abandoned her residence, it is important that an individual facing such charges in immigration court prepare significant evidence to show that she did not in fact abandon her residence. To counter charges of abandonment, a lawful permanent resident must show her absence was temporary and that she did not intend to move her residence to another country. Generally, the

104

There are examples of cases where people were gone for more than a year and the BIA or a Federal Court of Appeals Court found they did not abandon their residences. In one case, a family was outside the United States for four years while trying to liquidate their assets. The husband returned to the United States for only two brief visits during that period. Nevertheless, the BIA found that the family members did not abandon their residence, emphasizing the fact that the family returned to the United States within weeks of finally selling their house in Australia. Matter of Erhardt, A35-948-072 to 074 (BIA Jan. 26, 1984); see also Khoshfahm v. Holder, 655 F.3d 1147 (9th Cir. 2011) (finding that DHS failed to prove abandonment when child was out of the United States for six years due to the September 11, 2001, attacks and his father’s heart condition); Hana v. Gonzales, 400 F.3d 472 (6th Cir. 2005) (finding that taking into account the totality of the circumstances, a lawful permanent resident who was outside the United States for nearly all of a 4.5-year period, had not abandoned her residence). 105 See Hana v. Gonzales, 400 F.3d 472, 476 (6th Cir. 2005) (“While it is certainly proper to consider factors such as the location of the alien’s family, property, and job, and of course the length of the alien’s trip(s) abroad, we should be careful not to focus on these factors to the exclusion of other evidence in the record demonstrating the alien’s intent with regard to maintaining her LPR status.”) 106 Perez-Rodriguez v. INS, 3 F.3d 1074, 1077-1079 (7th Cir. 1993). 107 See Matter of Huang, 19 I&N Dec. 749, 754 (BIA 1988).

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courts will consider the following factors in determining whether there has been an abandonment of residence: 108 1. Purpose of the trip abroad: The person should show a definite reason for the temporary visit;

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2. Intended duration of visit: The shorter the better. The person should show that he or she expected the visit to end within a short period of time, or at the occurrence of a definite, fixed event (such as a birth, death, sale of a house, immigration of a relative, etc.); 3. Place of employment: The case is much stronger if the person can prove her employment was in the United States. On the flip side, if she accepted employment while abroad, this might suggest that she abandoned her residence; 4. Ties to the U.S.: The person should demonstrate personal, financial, and other relevant ties and commitments to the United States; 5. Applicant’s home: The person should show that she considers the United States her actual home, as opposed to just a place of employment or business, or a place to visit. 109 While maintaining a physical home (owned or rented) in the United States is a strong factor demonstrating that an applicant did not abandon her residence, not maintaining a physical home does not necessarily mean that the applicant will be found to have abandoned her residence. 110

A trip abroad must be either for a relatively short period, fixed by some early event, or intended to end after an event that reasonably should occur within a relatively short period of time. 112 In the latter situation, the individual must have a continuous, uninterrupted intention to return to the United States during his entire time abroad. 113 Many federal courts have held that the key question is not whether or not the person ultimately intended to return to the United States, but

108

Id. at 753. See Matter of Kane, 15 I&N Dec. 258 (BIA 1975); Matter of Huang, 19 I&N Dec. 749 (BIA 1988). 110 See id. 111 See also Ahmed v. Ashcroft, 286 F.3d 611 (2nd Cir. 2002); Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997). 112 Moin v. Ashcroft, 335 F.3d 415 (5th Cir. 2003); Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997). 113 Id.; see also Chavez-Ramirez v. INS, 792 F.2d 932 (9th Cir. 1986); Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003). 109

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If the person says that her intent was to take only a temporary trip abroad, but her actions tend to show otherwise, the courts could very well find that the person did not really “intend” her trip as a temporary one, and may find that she has abandoned her residence. For example, see Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005), where the Court found that act of naturalizing in Canada after becoming a permanent resident of the United States and other ties to Canada were inconsistent with intent to return to United States even though LPR later returned and resumed residence in United States. 111

whether or not the person had the intent to return to the United States within a relatively short period of time. 114 Example: Mae, from Vietnam, was a lawful permanent resident of the United States when she returned to Vietnam to attend her father’s funeral. While there, she had to sell her family’s farm and business. It took her 15 months to sell everything and then she spent an additional week packing the remaining belongings before she returned to the United States. Mae should argue that she reasonably expected the funeral and sale of the farm and business to occur in a relatively short period of time. She thought the funeral would be quick and it would not be hard to sell the farm and business. Additionally, she should argue that for the entire period she was gone she maintained her intent to continuously reside in the United States, such as by continuing to pay U.S. taxes. She should also list her ties to the United States such as a home, relatives, and her job. D.

Documentation to Prove That Your Client Did Not Abandon Residency

Even though the ICE has the burden in court to prove abandonment of residence by “clear, unequivocal, and convincing evidence,” an individual who has been accused of abandoning her residence and threatened with the loss of lawful permanent residence needs to gather all the documentation that she can to show she did not abandon her residence. Several examples below demonstrate how the issue arises, and suggest what documents may be useful.

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Example: Maria Martinez has been a lawful permanent resident for five years. She is married and has one daughter. She went alone to visit her parents for one month three years ago, and then again for thirteen months last year when her mother was very sick. Maria thought she would be gone for two months to take care of her mother but the illness lasted nearly thirteen months. Maria and her husband own their home and she came back to her job as a lab technician. Someone from DHS has told Maria that she might have abandoned her residence. Now, she is in your office and the two of you are meeting to discuss her situation. You could start the meeting by explaining that a green card allows someone to live in the United States and travel in and out of the United States whenever she wants. But it does not allow someone to live in another country for long periods and keep her green card at the same time. Once someone decides to live in another country, she is considered to have abandoned her residence in the United States and could lose her green card. Thus, Maria must show she did not intend to leave the U.S. permanently. To demonstrate that Maria did not intend to leave the United States permanently, she could try to collect some of the following documents: 1. Deed to her house. This will show she has property to return to in the United States. If she does not own property, she can use other documentation that she

114

See, e.g., Karimijanaki v. Holder, 579 F.3d 710, 715 (6th Cir. 2009); Katebi v. Ashcroft, 396 F.3d 463, 466 (1st Cir. 2005); Moin v. Ashcroft, 335 F.3d 415, 419 (5th Cir. 2003); Ahmed v. Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002); Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Chavez-Ramirez v. INS, 792 F. 2d 932, 936-37 (9th Cir. 1986); Khodagholian v. Ashcroft, 335 F.3d 1003 (9th Cir. 2003).

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continued to maintain an apartment in the United States during her stay abroad (e.g., phone bills, electric bills, lease agreement). 2. Tax records. These will help show her intent to remain a U.S. resident.

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3. A letter from her mother’s doctor. This may show that the illness lasted longer or was more serious than Maria expected, suggesting that she initially intended to be away from the United States for only a short period. 4. Her daughter’s school records. This shows that her daughter has remained in school in the United States, and implies that Maria intended to return. 5. Letters and e-mails to and from her husband and daughter, saying that she planned to come back to the United States. 6. Declaration of her husband, saying he knew that she planned to return to the United States when her mother recovered. 7. Letter(s) to her employer telling her employer when she expected to be back, and asking that she be able to come back to her same job. If she belonged to a union, proof that she was paying her union dues would be helpful. 8. Letter(s) from her employer discussing temporary job coverage. This is not an exhaustive list. You and Maria should think of as many documents as possible. ICE may assume (a rebuttable presumption) that any person who is a lawful permanent resident has abandoned her residence if she has done either of the following: 1. voluntarily claimed nonresident alien status when filing her tax returns, because she wanted to qualify for special exemptions from income tax liability; or 2. failed to file her state or federal taxes because she considered herself to be a nonresident alien. 115 PRACTICE TIP: Explain the Risks of Abandonment of Residence to Your Permanent Resident Clients! It is important to keep clients aware of the dangers of abandoning their residence. If a client is about to go abroad for a long period of time, take the time to explain the concept of abandonment to her. In fact, it is probably best to explain the concept (or at least distribute a flyer explaining it) to every client in your office who obtains status as a lawful permanent resident. When explaining abandonment, not only do you need to explain the risks and requirements involved, but also you need to go over ways to keep someone from abandoning her residence. Give clients helpful tips about how to avoid being asked about abandonment upon re-entering the United States. For instance, USCIS or ICE may get suspicious if someone has a round-trip airline ticket originating in a foreign country, does not have a driver’s license (or identification card) or bank account in the state she claims to live in, has no job, possessions or home in the United 115

See 8 CFR § 316.5(c)(2); INS Interpretations 318.4.

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9. Proof that she kept a U.S. bank account while she was out of the United States.

States (especially if she has any of these in another country), or has not filed taxes in the United States.

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NOTE: Regarding Reentry Permits. Under INA § 223, a lawful permanent resident (LPR) may apply for a travel document called a “reentry permit” to allow her to re-enter the United States after a long trip abroad. A reentry permit can be very useful for a lawful permanent resident who is expecting to be outside of the United States for an extended period of time. 116 However, a reentry permit alone will not prevent DHS from inquiring as to whether a lawful permanent resident abandoned her residency. 117 Rather, possession of a valid reentry permit simply bars DHS from finding that a lawful permanent resident abandoned her status solely based on the duration of her absence or absences from the United States. 118 An LPR must apply for a reentry permit on USCIS Form I-131 while physically present in the United States. If granted, the document is valid for two years, during which the LPR may use it for multiple entries. If your client suspects that she may remain abroad for more than six months, it is advisable for her to apply for a reentry permit.

116

INA § 223; 8 CFR § 211.1(a)(3). See, e.g., Moin v. Ashcroft, 335 F 3d. 415, 420-21 (5th Cir. 2003). 118 8 CFR § 223.3(d)(1). 117

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Appendix 3-A-1

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Appendix 3-A-2

CHAPTER 4 WAIVER OF INADMISSIBILITY AND/OR DEPORTABILITY UNDER INA § 240A(A): CANCELLATION OF REMOVAL FOR LAWFUL PERMANENT RESIDENTS

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This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6

Overview of Requirements for Cancellation of Removal; Effect of a Grant ................................................................................................................ 4-1 Removal Grounds That Can Be Waived by Cancellation of Removal .............. 4-3 The Applicant Must Have Been a Lawful Permanent Resident for at Least Five Years ............................................................................................. 4-4 Continuously Resided in the U.S. for Seven Years after Admission ................. 4-7 Conviction of an Aggravated Felony ............................................................... 4-19 Proving That Your Client Merits a Favorable Exercise of Discretion ............. 4-19

§ 4.1

Overview of Requirements for Cancellation of Removal; Effect of a Grant

Cancellation of Removal for lawful permanent residents (LPRs) under INA § 240A(a) 1 is a waiver that allows a removable permanent resident to retain his or her LPR status and avoid removal. It is available to lawful permanent residents in removal proceedings initiated on or after April 1, 1997, the effective date of IIRIRA. Applications for this form of relief are filed only in removal proceedings. 2 LPR Cancellation of Removal replaced former § 212(c) relief. Section 212(c) was eliminated by IIRIRA, but is still available to some permanent residents who were convicted of crimes before April 1, 1997. Section 212(c) is discussed in detail in Chapter 5 of this manual.

• • • •

Permanent resident status for at least five years; Continuous residence in the U.S. for seven years after having been “admitted in any status,” keeping in mind that the seven years stops upon commission of certain offenses or service of the Notice to Appear; Has not been convicted of an aggravated felony; Has not previously been granted cancellation, suspension of deportation, or § 212(c) relief; and

1

8 USC § 1229b(a). The application form is Form EOIR-42A, which you can download from the EOIR website at: www.justice.gov/eoir/list-downloadable-eoir-forms. See also Appendix 4-A, which is a sample completed EOIR-42A. 2

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Requirements for Eligibility. The requirements for eligibility for LPR cancellation of removal are:

•

Is not inadmissible or deportable under the Nazi or terrorism grounds, has not persecuted others, and has not had certain types of immigration status relating to alien crewmembers or educational J-visas. 3

In addition to meeting these criteria, the applicant must convince an immigration judge (IJ) that he or she merits relief in the exercise of discretion. The IJ has broad discretion to grant or deny a cancellation case, but is required to weigh the person’s positive equities against his or her bad acts in order to determine whether relief should be granted in the exercise of discretion. 4 Effect of a Grant of LPR Cancellation. The rules governing the effect of former § 212(c) relief also apply to LPR cancellation of removal. Once relief has been granted, the person cannot be charged with being deportable or inadmissible based solely on the conviction. 5 This can change if a new conviction or another adverse event occurs, however. A conviction that has been waived under a previous application for relief can be joined to a second, subsequent conviction to create an immigration penalty, such as being deportable for two moral turpitude convictions. 6 In addition, if the person becomes removable under a new basis, a conviction that was waived through LPR cancellation still can constitute a basis for ineligibility for relief in subsequent removal proceedings. 7 Example: Lester was granted LPR cancellation of removal in 1999 to waive his conviction for possessing heroin. Then he was convicted of two crimes involving moral turpitude, in 2007 and 2009. He was placed in removal proceedings in 2017, charged with deportability under INA § 237(a)(2) for conviction of two crimes involving moral turpitude after admission.

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Lester applied for adjustment of status as a defense to removal. He is inadmissible under the moral turpitude grounds, but he can apply for a § 212(h) waiver of inadmissibility to cure the moral turpitude ground. However, according to the BIA and some federal courts, in this new proceeding Lester also is inadmissible for the prior drug conviction, despite the fact that it was waived when Lester was granted LPR cancellation in 1999. That means that Lester cannot adjust status, because the inadmissible drug conviction cannot be waived under INA § 212(h). Note that if Lester were to return from a trip abroad, he would not be held inadmissible at the border based on the drug conviction. Section § 101(a)(13)(C) specifically provides 3

See disqualifiers at INA § 240A(a), (e). See § 4.6. 5 Matter of Gordon, 20 I&N Dec. 52, 56 (BIA 1989) (“the respondent cannot again be charged with deportability based on the same criminal convictions already waived” after a grant of 212(c)); Matter of Balderas, 20 I&N Dec. 389, 393 (BIA 1991) (the grant of relief lasts indefinitely “unless new circumstances or previously undisclosed facts come to light which give rise to a new basis of excludability or deportability”). 6 Matter of Khourn, 21 I&N Dec. 1041; (BIA 1997); Molina-Amezcua v. INS, 6 F.3d 646 (9th Cir. 1993); Matter of Balderos, 20 I&N Dec. 389, (BIA 1991). 7 Matter of Taveras, 25 I&N Dec. 834 (BIA 2012), upheld in Taveras v. AG of the United States, 731 F.3d 281 (3rd Cir. 2013), and see De Hoyos v. Mukasey, 551 F.3d 339 (5th Cir. 2008) 4

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that a conviction waived by cancellation of removal is not a ground of inadmissibility for purposes of admission. 8 But the BIA and courts found that § 101(a)(13)(C) does not control in a new application for adjustment of status.

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Finally, LPR cancellation of removal, § 212(c), and other waivers will protect against bars to relief based on being deportable or inadmissible for the conviction, but will not protect against bars based simply on having been “convicted” of an offense. 9 For example, a person who “has been convicted” of an aggravated felony on or after November 29, 1990 is permanently barred from establishing good moral character. 10 § 4.2

Removal Grounds That Can Be Waived by Cancellation of Removal

LPR cancellation of removal can waive most grounds of either inadmissibility or deportability. It therefore can be used to defend a permanent resident charged with being inadmissible as an arriving alien under INA § 101(a)(13)(C), as well as a permanent resident within the United States who is charged with being deportable. The exception is that LPRs who are inadmissible or deportable under the Nazi or terrorism grounds 11 are not eligible for LPR cancellation. Some LPRs are specifically barred from eligibility for LPR cancellation of removal. They include those who have been convicted of an aggravated felony; 12 certain J visa holders; crewmen who entered after June 30, 1964; and noncitizens who previously received § 212(c) relief, suspension of deportation, or cancellation of removal. 13 Federal courts have held that the bar to eligibility for people who have been granted § 212(c) relief applies even if both the § 212(c) and cancellation of removal applications are considered at the same hearing. 14 The fact that other specific waivers or exceptions exist for a particular ground of removal does not preclude LPR cancellation from being a potential remedy. For example, LPR cancellation of removal can waive inadmissibility or deportability for false claims to U.S. citizenship and alien smuggling, notwithstanding the fact that there are also specific, but very narrow, waivers for these grounds. 15 Similarly, LPR cancellation of removal can waive inadmissibility or

8

Matter of Taveras, supra. Matter of Balderas, 20 I&N Dec. 389 (BIA 1991); Amouzadeh v. Winfrey, 467 F.3d 451 (5th Cir. 2006); Munoz-Yepez v. Gonzales, 465 F.3d 347 (8th Cir. 2006); Becker v. Gonzales, 473 F.3d 1000 (9th Cir. 2007). 10 INA § 101(f)(8). November 29, 1990 is the effective date of the Immigration Act of 1990 (IMMACT 90). IMMACT 90 made conviction of an aggravated felony a permanent bar to the ability to establish good moral character. 11 INA §§ 212(a)(3), 212(a)(4), & 237(a)(4). 12 See § 4.5, infra. 13 INA § 240A(c), 8 USC § 1229b(c). See Velasco v. Holder, 736 F.3d 944, 945–46 (10th Cir. 2013) (precluding cancellation of removal where immigrant had previously received suspension of deportation, regardless of the fact that suspension had been granted after the effective date of IIRIRA, April 1, 1997). 14 Garcia-Jimenez v. Gonzalez, 488 F.3d 1082 (9th Cir. 2007), Peralta-Taveras v. Attorney General, 488 F.3d 580 (2nd Cir. 2007); Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2007). 15 See INA §§ 212(a)(6)(C)(ii)(II) and 237(a)(3)(D)(ii) [waivers for false claim of U.S. citizenship], and §§ 212(a)(6)(E)(ii) & (iii) & 212(d)(11) and 237(a)(1)(E)(ii) & (iii) [ waivers for smuggling]. See also Chapter 3. 9

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deportability for unlawful voting, notwithstanding that the person charged does not fit within the very narrow exceptions to these grounds. 16 WARNING: A federal conviction for alien smuggling can be an aggravated felony, 17 which is a bar to LPR cancellation. But many people who are charged with being deportable or inadmissible for alien smuggling are never convicted of smuggling in federal court. If they meet the other eligibility requirements for LPR cancellation of removal, these people can benefit from this remedy. § 4.3

The Applicant Must Have Been a Lawful Permanent Resident for at Least Five Years

To be eligible for LPR cancellation of removal, the applicant must have been “lawfully admitted for permanent residence for not less than five years.” INA § 240A(a)(1). A.

What Does “Lawfully Admitted for Permanent Residence” Mean?

The BIA has held that someone who acquired permanent resident status through fraud or misrepresentation has never been “lawfully admitted for permanent residence” and is therefore ineligible for cancellation of removal under § 240A(a) of the Immigration and Nationality Act. Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003) citing Monet v. INS, 791 F.2d 752 (9th Cir. 1986), and Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983), 1441-42, cert. denied, Longstaff v. INS, 467 U.S. 1219 (1984). 18

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Furthermore, most courts of appeal have held that where a person was not entitled to permanent residence at the time it was granted, whether or not there was any fraud or misrepresentation involved (for example, where permanent residence was granted as a result of the government’s mistake), that person has not been lawfully admitted for permanent residence. See De La Rosa v. United States Dept. of Homeland Security, 489 F.3d 551, (2nd Cir. 2007); Savoury v. United States Atty. Gen., 449 F.3d 1307 (11th Cir. 2006); Arellano-Garcia v. Gonzales, 429 F.3d 1183, (8th Cir. 2005); Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.1973). 19 One might think that someone who is being charged with deportability as an alien who was not entitled to be admitted at the time of admission under INA § 237(a)(1)(A) 20 may never be eligible for LPR cancellation of removal, since he or she would never have been “lawfully admitted” for permanent residence. However, in Matter of Sosa-Hernandez, 21 the BIA found that an individual 16

See INA §§ 212(a)(10)(D)(ii) and 237(a)(6)(B) and Chapter 3. See INA § 101(a)(43)(N). There is an exception in the case of a first offense if the person smuggled was the parent, spouse, or child of the smuggler. 18 See also Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir. 2007), Kim v. Holder, 560 F.3d 833 (8th Cir. 2009), Gallimore v. AG of the U.S., 619 F.3d 216 (3rd Cir. 2010), Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005), Estrada-Ramos v. Holder, 611 F.3d 318 (7th Cir. 2010), Obi v. Holder, 558 F.3d 609 (7th Cir. 2009), and Segura v. Holder, 605 F.3d 1063 (9th Cir. 2010). 19 Holding that a “mistaken admission conferred no status, permanent resident or otherwise” and thus the aliens were not “lawfully admitted.” 20 See Chapter 3. 21 20 I&N Dec. 758 (1993). 17

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who obtained lawful permanent residency by fraud at a time when he otherwise was admissible, who later became deportable for a conviction, and who was charged with being deportable both for the fraud and the conviction, could apply for § 212(c) to waive the conviction when he also filed and was granted a waiver of the initial fraud under the former INA § 241(f) (the predecessor to current INA § 237(a)(1)(H)). The grant of the § 241(f) “cured” his permanent residence retroactively to the date he was initially granted LPR status, so that he met the § 212(c) requirements. Courts have held that this relief does not apply in all scenarios, 22 but the bottom line is that practitioners with clients who obtained LPR status unlawfully and who are otherwise eligible for LPR cancellation of removal, should investigate arguments that the person should be permitted to apply for a waiver under INA § 237(a)(1)(H) in conjunction with the cancellation application to cure their ineligibility for LPR cancellation relief. If the initial grant of LPR status occurred through no fault of the individual, he or she may also apply for a § 212(k) waiver. These waivers are discussed in Chapter 8 of this manual.

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In any event, unless the government raises the issue that your client lacks “lawful” permanent resident status, you may not want to bring it up. If the government does not raise the issue of ineligibility and provide some evidence to support this claim, the issue is waived. Note that, in addition to the waivers under INA §§ 237(a)(1)(H) or 212(k), someone who is ineligible for LPR cancellation of removal because he was not lawfully admitted to permanent residence can also apply for non-LPR cancellation of removal under INA § 240A(b)(1), if he otherwise meets the requirements. See Obioha v. Gonzales, 431 F.3d 400 (4th Cir. 2005) and Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003). B.

Counting the Five Years of Lawful Permanent Residence

Unlike the seven years of continuous residence requirement (discussed below at § 4.4), there is no stop-time rule for the five-year lawful permanent residence requirement. Therefore, the five years continue to accrue during the removal proceeding and through at least the administrative appeal. Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006); 23 see also Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir. 2006).

22

See, e.g., Torres-Rendon v. Holder, 656 F.3d 456 (7th Cir. 2011); Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. 2010); Matter of Garcia-Linares, 12 I&N Dec. 254 (BIA 1996) 23 Although Matter of Bautista-Gomez is a non-LPR cancellation of removal case, the stop-time rule is the same for both. 24 See § 4.4, infra.

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Example: Jorge entered the United States on a tourist visa in 2001, and adjusted status to permanent residency in 2007. He committed and was convicted of a deportable offense in 2011, and was placed in removal proceedings that year. He was ordered removed, but he appealed his case to the BIA. In 2012, while the appeal was pending, he reached five years of permanent residency. At that time, he became statutorily eligible for LPR cancellation. He had accrued at least seven years of continuous residence from his admission in 2001 until his seven-year clock stopped in 2011. 24 He reached five years of permanent residency, which is not subject to a clock-stopping provision, in 2012. He moved to remand the case to the IJ to apply for cancellation.

1. Conditional residence A conditional resident is a lawful permanent resident as defined by INA §§ 101(a)(20), 216(a)(1), and 216A(a)(1). Therefore, time accrued as a conditional resident can be counted toward the five years of lawful permanent residence required for cancellation eligibility. 2. Parents and children The Supreme Court held that a child cannot count the parent’s time as a lawful permanent resident, requiring each individual to satisfy the five-year requirement on his or her own. Holder v. Martinez-Gutierrez, 566 U.S. 583 (2012). The Court held that a parent’s time as a lawful permanent resident cannot be imputed to a child who did not become a permanent resident until after the parent, but was residing with the parent in the United States. (The Court similarly found that the parent’s lawful admission, starting the accrual of seven years of continuous residence, could not be imputed to the child; see § 4.4, below.) This decision settled a longstanding split between the Ninth Circuit, which allowed children to impute their residency based on their parents’ time, and the BIA, which did not. 25 3. When does permanent resident status end for this purpose? A permanent resident in removal proceedings continues to be a permanent resident until the final administrative order of exclusion, deportation, removal, or rescission is issued. 26 (If the LPR accrues the five years LPR status within ninety days following the entry of that order, she should be able to file a motion to reopen proceedings to apply for cancellation.) 27

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Example: Jane entered the United States as a student in 2005, and adjusted status to permanent residency in 2012. She committed and was convicted of a deportable offense in 2014. She was placed in removal proceedings, and subsequently ordered removed, but she appealed to the BIA. The BIA denied her case in 2016 and she appealed to the court of appeals in her jurisdiction. The appeal is still pending in 2017 and she moves for a remand to the BIA because it has now been 5 years since she was granted permanent residence. Her motion for a remand will be denied, however, because her LPR status terminated in 2016 when the BIA issued its final administrative order. At that time she had only four years as a permanent resident.

25

Compare Matter of Montoya-Silva, 26 I&N Dec. 123 (BIA 2013), reaffirming Matter of Escobar, 24 I&N Dec. 231 (BIA 2007), Augustin v. Attorney General, 520 F.3d 264 (3rd Cir. 2008), and Deus v. Holder, 591 F.3d 807 (5th Cir. 2009) (holding that a parents’ lawful status could not be imputed to a child) with Cuevas–Gaspar v. Gonzales (9th Cir. 2005) 430 F.3d 1013 (imputing a parents’ lawful status to a child who later gained lawful status). 26 8 CFR §§ 1.2 & 1001.1(p). See also Perez-Rodriguez v. INS, 3 F.3d 1074 (7th Cir. 1993), Matter of Gunaydin, 18 I&N Dec. 326 (BIA 1982), affirmed, 742 F.2d 776 (3rd Cir. 1984) and Etuk v. Slattery, 936 F.2d 1433 (2nd Cir. 1991). 27 8 CFR 10003.23(b)(3) only limits use of a motion to reopen to apply for cancellation of removal in some circumstances relating to the “stop-time” rule under INA § 240A(d). That rule governs accrual of the seven years of continuous residence since admission required for LPR cancellation, but it does not govern the requirement of five years as an LPR. See also Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006).

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PRACTICE POINTER: ICE has been known to argue that the stop-time rule applies to the five years of lawful permanent residence, in addition to the 7 years of continuous residence requirement. However, the stop-time rule in INA § 240A(d)(1) plainly applies only to the 7 years of continuous residence for LPR cancellation of removal and continuous physical presence for non-LPR cancellation of removal. 28 In addition, the BIA case specifically held that the stop time rule only applies to continuous residence or physical presence. Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006). 29 § 4.4

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Continuously Resided in the U.S. for Seven Years after Admission

To be eligible for LPR cancellation of removal, the person must have “resided in the United States continuously for 7 years after having been admitted in any status.” INA § 240A(a)(2). Continuous residence means that the person maintained the United States as a place of general abode. As discussed below, this includes residence while out of status, as long as the person previously was admitted. A brief trip outside of the United States will not end the period of continuous residency. See, e.g., De Rodriguez v. Holder, 724 F.3d 1147, 1151 (9th Cir. 2013) (finding that a thirteen-day trip to Mexico on advance parole did not end the period of continuous residence). A.

When Does the Seven-Year Period Begin?

The applicant must have resided in the United States for seven years “after having been admitted in any status.” INA § 240A(a)(2). Some events do and others do not count as an admission for this purpose. 1. Admission at the border, parole, unlawful status You may remember that “admitted” is defined in INA § 101(a)(13) as the “lawful entry into the United States after inspection and authorization by an immigration officer.” 30 Some people clearly have been “admitted” under this definition. For example, a person who entered with a tourist or student visa, on a border-crossing card, or with refugee status has been admitted. Likewise, a person who was admitted as a lawful permanent resident after going through consular processing has been admitted.

28

INA § 240A(b). Although Matter of Bautista-Gomez is a Non-LPR cancellation of removal case, the stop-time rule is the same for both. 30 See Chapter 1, § 1.3. 31 See INA § 101(a)(13)(B). 32 Garcia v. Holder, 659 F.3d 1261, 1267–68 (9th Cir. 2011). 29

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Generally, a person who has been paroled into the U.S. has not been admitted, 31 and cannot count the time between his or her parole and his or her admission as an LPR toward the 7 years of continuous residence. Not all parole is treated the same, however. In the Ninth Circuit, persons paroled as “Special Immigrant Juveniles” (SIJS) can count the date of their SIJS parole as their “admission in any status.” 32 In reaching this conclusion, the court distinguished SIJS parole from general parole and found that SIJS-parolees are a narrow class of juvenile aliens who must meet heightened eligibility requirements and are afforded particular benefits. These special eligibility

requirements and benefits show a congressional intent to assist this group to remain safely in the country with a means to apply for LPR status. 33 If the person was admitted to the U.S. in some other status prior to becoming a permanent resident, then fell out of status, and then adjusted status to permanent residence, the entire time period since the admission will count toward the seven years. See Matter of Blancas, 23 I&N Dec. 458 (BIA 2002). In other words, any time after the person’s lawful admission counts toward the seven years, even if the person was residing in the U.S. illegally during part of that time. 34 Example: Sally came to the U.S. on a B-2 Visitor’s Visa in 2005. Her permitted period to visit expired in 2006, but she remained in the U.S. out of status, without ever leaving the country. In 2011, Sally adjusted status to that of a lawful permanent resident. In 2017, Sally would meet the requirements for cancellation of removal because: • • •

She has been a lawful permanent resident for five years She was admitted in lawful status (in her case a Visitor’s Visa) and She has lived in the U.S. continuously for seven years after having been admitted in any status (in her case, since admission as a visitor in 2005)

2. Entry without inspection, subsequent applications, or adjustment A person who has entered the United States without inspection has not been admitted under INA § 101(a)(13), and therefore cannot count his or her physical presence in the U.S. before adjustment toward the 7 years of continuance residency, no matter how long he or she has been living in the U.S. as an undocumented immigrant.

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What if the person files an application for some status after an entry without inspection? Here and in the context of similar language in the moral turpitude deportation ground (where a permanent resident is deportable if he committed an offense within five years after “admission”), the BIA has held that a person who entered without inspection is not deemed to have made an “admission” merely because she filed an application for asylum or adjustment of status, or was granted employment authorization. 35 The BIA held that a grant of Family Unity does not count as an admission. 36 The approval of a visa petition in the context of an adjustment of status application also does not create an “admission” for the purposes of cancellation. 37 However, the BIA has acknowledged that a grant of adjustment of status to permanent residency is an admission for some purposes (especially when the person entered without inspection so that 33

Garcia v. Holder, 659 F.3d at 1269–71. De Rodriguez v. Holder, 724 F.3d 1147, 1150–51 (9th Cir. 2013) (remaining in the country unlawfully is immaterial to the requirement to be “admitted in any status” because “Congress in 8 USC § 1229b(a)(2) did not include maintenance of status as a prerequisite for relief”) (quoting Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir.2011)). 35 Guevara v. Holder, 649 F.3d 1086, 1094 (9th Cir.2011). 36 Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010). While the Ninth Circuit initially held that Family Unity was an admission for this purpose, it later deferred to the BIA. Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015). 37 Vasquez de Alcantar, 645 F.3d 1097, 1102 (9th Cir. 2011); United States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006) 34

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there is no other preceding admission), and courts of appeals have agreed. 38 If your LPR client originally entered without inspection and later adjusted status, he or she can only count the time from the date that lawful permanent residence was granted to establish continuous residence under INA § 240A(a)(2).

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Example: Julie entered the U.S. without inspection in 1998. In 2006 she adjusted status under INA § 245(i). She has never left the U.S. In 2010, she committed and was convicted of a controlled substance offense that made her inadmissible and deportable. In 2016 she was placed in removal proceedings. Julie does not qualify for cancellation of removal because: • • • •

Although she has been a lawful permanent resident for more than five years, She was not admitted in lawful status when she entered the U.S. without inspection in 1998. Her admission date is 2006, the date she adjusted her status to that of a permanent resident. She resided in the U.S. continuously for only four years after admission. Her period of continuous residence for this purpose did not start until 2006, when she adjusted status. It ended in 2010 when she committed the offense.

3. Parents and children, Family Unity benefits The Supreme Court has held that a permanent resident parent’s admission cannot be imputed to the parent’s unemancipated minor child who resides with the parent, for the purpose of satisfying the seven years of residence “after admission in any status” required for cancellation. Holder v. Martinez Gutierrez, 566 U.S. 583, 132 S. Ct. 2011 (2012) overruling Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1029 (9th Cir. 2005); see Matter of Escobar, 24 I&N Dec. 231, 233 (BIA 2007); Matter of Montoya-Silva, 26 I&N Dec. 231 (BIA 2013).

B.

When Does the Seven-Year Period End?

For purposes of LPR cancellation, continuous residence is deemed automatically terminated either by the service of the Notice to Appear, or when the person commits certain offenses,

38

See, e.g., Matter of Rosas, 22 I&N Dec. 616 (BIA 1999); Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011); Martinez v. Mukasey, 519 F.3d 532, 541-546 (5th Cir. 2008); Zhang v. Mukasey, 509 F.3d 313 (6th Cir. 2007); Abdelqadar v. Gonzales, 413 F.3d 668 (7th Cir. 2005); Shivaraman v. Ashcroft 360 F.3d 1142 (9th Cir. 2004); Ocampo-Duran v. Ashcroft 254 F.3d 1133 (9th Cir. 2001). 39 See, Medina-Nunez v. Lynch, 788 F.3d 1103, 1104 (9th Cir. 2015) (deferring to BIA’s opinion in Reza and overruling Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006)). 40 Fuentes v. Lynch, 837 F.3d 966, 968 (9th Cir. 2016)

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In addition, the BIA has held that a grant of Family Unity Program benefits does not constitute an “admission” to the United States for purposes of establishing the requisite 7-year period of continuous residence to be eligible for cancellation of removal. Matter of Fajardo Espinoza, 26 I&N Dec. 603, 603 (BIA 2015); Matter of Reza–Murillo, 25 I&N Dec. 296 (BIA 2010). 39 This holding extends to people who have been listed as derivative beneficiaries on a parent’s NACARA application. 40

whichever is earlier. INA § 240A(d). This is sometimes referred to as the “stop-time” or “clockstopping” rule for the seven years. Section 240A(d)(1) reads as follows (emphasis added): (d) Special rules relating to continuous residence or physical presence. (1) Termination of continuous period. For purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end (A) except in the case of an alien who applies for cancellation of removal under subsection (b)(2), when the alien is served a notice to appear under section 239(a), or (B) when the alien has committed an offense referred to in section 212(a)(2) that renders the alien inadmissible to the United States under section 212(a)(2) or removable from the United States under section 237(a)(2) or 237(a)(4), whichever is earliest. Once a noncitizen has been convicted of an offense that stops the accrual of the seven-year period of continuous residence, the clock does not “restart” simply because the noncitizen departs from, and returns to, the United States. Matter of Nelson, 25 I&N Dec 410, 410 (BIA 2011). Once the time is stopped, it is stopped forever. See Briseno-Flores v. Attorney General of the U.S., 492 F.3d 226 (3rd Cir. 2007); see also Baraket v. Holder, 632 F.3d 56 (2nd Cir. 2011).

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1. Service of the Notice to Appear “Service of the Notice to Appear” is defined as the date upon which the noncitizen has either been given the NTA in person or the date on which the person has been served by mail, either to himself or to his counsel of record. Implicit in the statute is that the service must have been proper. INA § 239(a); 8 CFR § 1003.13. If the NTA was not properly served, then the improper service should not stop time for the seven years of continuous residence requirement. 41 For example, it is well-established that an in absentia order of removal is not appropriate where the record reflects that the person did not receive, and could not be charged with receiving, the NTA. Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). 42 For the same reasons, if a person did not receive, and cannot be charged with having received, the NTA, you should argue that the stoptime rule for cancellation eligibility should not apply. The BIA has held that any period of continuous residence is deemed to end upon the service of a Notice to Appear on the noncitizen, even if the NTA does not include the date and time of the initial hearing and there is substantial delay between when the NTA was served on the noncitizen and the date it was filed with the immigration court. Matter of Camarillo, 25 I&N Dec. 644, 644 (BIA 2011). However, if the NTA was served on the person but never resulted in the commencement of removal proceedings, it does not stop the period of continuous residence under § 240A(d)(1) (2012). Matter of Ordaz-Gonzalez, 26 I&N Dec. 637 (BIA 2015).

41

See INA § 239(a)(1) and 8 CFR § 1003.13 on what constitutes proper service of the NTA. See also Matter of Peugnet, 20 I&N Dec. 233 (BIA 1991), Matter of Grijalva, 21 I&N Dec. 27, 32 (BIA 1995) (en banc), and Matter of M-D-, 23 I&N Dec. 540 (BIA 2002).

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2. Date of commission of the offense Section 240A(d)(1)(B) provides that continuous residence for cancellation eligibility also stops upon “commission” of an offense that meets certain requirements. The BIA has interpreted this provision literally, holding that the clock stops on the date the person actually commits the offense rather than the date of conviction. Matter of Perez, 22 I&N Dec. 689 (BIA 1999). (While courts generally will defer to the BIA’s interpretation, counsel can consider arguments against this reading of the statute, based on the dissent in Perez.)

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The BIA held that a conviction that is not charged in the NTA still can terminate the seven-year period. Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). In that case, the noncitizen was charged with being deportable for convictions of two crimes involving moral turpitude under INA § 237(a)(2)(A)(II), in addition to a false claim of U.S. citizenship under INA § 237(a)(3)(D). He had two other CIMT convictions, which were not mentioned in the NTA. The BIA said that his continuous residency was stopped on the commission date relating to the earlier, uncharged convictions. Therefore, he was found ineligible for cancellation of removal. The BIA held that crimes committed before April 1, 1997 (the date that LPR cancellation came into effect) can stop time for the 7 years of continuous residence and is therefore, not impermissibly retroactive. Matter of Robles, 24 I&N Dec. 22 (BIA 2006); Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). Federal courts are split on this issue, however. Some courts of appeal have upheld the retroactive application of the stop time rule to pre-IIRIRA convictions. Martinez v. Mukasey, 523 F.3d 365 (2nd Cir. 2008), Briseno-Flores v. Att’y Gen. of the United States, 492 F.3d 226 (3rd Cir. 2007), Heaven v. Gonzales, 473 F.3d 167 (5th Cir. 2006), 43 and Valencia v. Gonzales, 469 F.3d 1319 (9th Cir. 2006) (holding that retroactive application of the stop time rule to pre-IIRIRA convictions is permissible where the noncitizen was not eligible for any relief from deportation at the time IIRIRA became effective).

43

Holding that retroactive application of the stop-time rule to pre-IIRIRA convictions is permissible where removal proceedings commenced after the IIRIRA effective date. 44 See Jaghoori v. Holder, 772 F.3d 764, 768 (4th Cir. 2014); Jeudy v. Holder, 768 F.3d 595, 603–04 (7th Cir. 2014); Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006) (holding that retroactive application of the stop time rule is not permissible where the applicant pled guilty before the enactment of IIRIRA and was eligible for discretionary relief at the time IIRIRA became effective. 45 Jeudy v. Holder, 768 F.3d 603–04.

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The Fourth, Seventh, and Ninth Circuits have held that the stop-time rule could not be applied to pre-IIRIRA convictions. 44 The courts distinguished their holdings from the others cited above by noting that retroactive application of the stop-time rule would be unjust when the pre-IIRIRA convictions (1) did not make the noncitizens removable, and (2) the noncitizens had, at the time of IIRIRA, obtained the seven years of residence necessary to seek discretionary relief under preIIRIRA law. The courts found that applying the stop-time rule to the pre-IIRIRA convictions “would attach a new and serious consequence to [the] criminal conduct that was completed before IIRIRA took effect.” 45 In each of these cases, the petitioners were charged with being deportable for two crimes of moral turpitude under INA § 237(a)(2)(A)(ii), one which occurred before the

effective date of IIRIRA and one after. The first conviction on its own did not render the petitioner removable. 3. Which offenses stop the clock? It takes a close reading of INA § 240A(d)(1)(B) to determine what offenses actually stop the clock. The statute provides that the seven years cease to accrue when: • •

The person “has committed an offense referred to” in § 212(a)(2) (the criminal grounds of inadmissibility), and The offense “renders the alien inadmissible” under § 212(a)(2) or “removable” under § 237(a)(2) [the criminal grounds of inadmissibility and deportability] or § 237(a)(4) [security and terrorism grounds].

Both conditions must be met to end the period of continuous residence. The government cannot assert that commission of a deportable offense or inadmissible offense will stop the clock if that offense is not also referred to in § 212(a)(2). This requirement will help some people who are deportable or inadmissible, but whose offense is not included in § 212(a)(2), since such an offense will not stop the clock on the seven years. As always, the first step is to determine whether the conviction meets any of these requirements under the categorical approach. Are you sure that the particular offense actually is referred to in § 212(a)(2), and actually does make the person inadmissible or deportable under the applicable grounds? Even if the answer appears obvious at first glance, go through the technical steps of the categorical approach, discussed in Chapter 2, §§ 2.4-2.6. The law might be much better than it first appears. After that, we must examine the two requirements of INA § 240A(d)(1)(B). a. The offense must be “referred to” in INA § 212(a)(2) The most commonly charged grounds at INA § 212(a)(2) include the following:

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• • • • •

Crimes involving moral turpitude, admission or conviction (but not including offenses that come within the so-called petty offense or youthful offender exceptions; see below) Controlled substance offenses, admission or conviction Engaging in prostitution Conviction of two or more crimes with an aggregate sentence imposed of five years or more, DHS has “reason to believe” the person participated in trafficking in controlled substances or, in some cases, benefitted from that trafficking

Section 212(a)(2) grounds that are less commonly charged include: • • • •

DHS has “reason to believe” the person participated in severe human trafficking, or, in some cases, benefitted from that trafficking DHS has “reason to believe” the person engaged or intended to engage in money laundering, or conspired or aided in that Certain diplomats who asserted immunity from criminal prosecution Foreign government officials who engaged in certain forms of religious persecution

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What does § 212(a)(2) not refer to? First, it lists grounds of inadmissibility, not deportability. It does not refer to deportation grounds under § 237(a)(2) that have no analogous inadmissibility grounds, such as: • • • • •

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Firearms deportation ground Domestic violence deportation ground (which includes conviction of a crime of domestic violence, stalking, or crime of child abuse, as well as being the subject of a court finding of a violation of a domestic violence protective order.) Federal conviction for high-speed flight near the border Federal conviction for failure to register as a sex offender Miscellaneous offenses relating to treason and military service. 46

If the person is deportable under one of the above-cited deportation grounds, but the offense is not also one “referred to” in § 212(a)(2), then the clock will not stop. See Matter of CamposTorres, 22 I&N Dec. 1289, 1294-95 (BIA 2000), where the BIA held that the seven-year clock did not stop just because the respondent was deportable under the firearms ground in INA § 237(a)(2), because “firearms” is not an offense that is “referred to” in INA § 212(a)(2). Example: Mr. C.T. was admitted in 2008. In 2010, he was convicted of unlawful use of a firearm. In removal proceedings in 2017, ICE argued that because this offense made him deportable under INA 237(a)(2)(C), it stopped his seven-year clock. The BIA held that it did not, because a firearms offense is not “referred to” in § 212(a)(2). Matter of CamposTorres, supra. Example: Evelyn was admitted in 2005. In 2011, she was convicted of a domestic violence offense. In removal proceedings in 2017, ICE argues that because this offense made her deportable under INA § 237(a)(2)(E), it stopped her seven-year clock. This is wrong under Matter of Campos-Torres, because a domestic violence offense is not “referred to” in § 212(a)(2).

In contrast, deportation grounds at § 237(a)(2) relating to crimes involving moral turpitude, controlled substance convictions, and severe trafficking in humans do have analogous inadmissibility grounds at § 212(a)(2). See further discussion at Subsection b, below. Effect of the Petty Offense and Youthful Offender Exceptions. The BIA has held that an offense that comes within the petty offense exception to the moral turpitude inadmissibility ground is not “referred to” in INA § 212(a)(2), and thus never stops the clock (unless it comes within some other section of § 212(a)(2)). The same rule will apply to an offense that comes within the youthful offender exception.

46

See grounds at INA § 237(a)(2)(D).

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Example: In these cases, what would happen if the firearms or domestic violence offense also was a crime involving moral turpitude that did not come within the petty offense exception? In that case, would the offense “stop the clock” because it caused deportability under § 212(a)(2), and was “referred to” in § 212(a)(2)? ICE is likely to charge this, but arguably the clock does not stop. See Subsection b.2, below.

Here the clock will not stop even if the offense makes the person deportable under the moral turpitude ground at § 237(a)(2)(A)(i). See discussion below. Petty Offense Exception. Under § 212(a)(2)(A)(ii)(II), there is an exception to the ground of inadmissibility for a crime involving moral turpitude (CIMT), commonly known as the petty offense exception. This applies to someone who has committed a single CIMT and has been sentenced to six months or less in jail for that offense, where the maximum potential penalty for that offense is no more than a year. The exception applies even if the person has committed other offenses that are not CIMTs. See Chapter 2. The BIA held that conviction of a CIMT that falls within the petty offense exception is not a crime that is “referred to” in § 212(a)(2), and therefore such a crime does not stop time for the seven years of continuous residence. This is true even if the same conviction makes the person deportable for CIMT. Matter of Garcia, 25 I&N Dec. 332 (BIA 2010). 47 Example: In Matter of Garcia, supra, Mr. Garcia was admitted to the U.S. as a lawful permanent resident in 1999. He was convicted in 2001 of a CIMT that had a maximum possible sentence of one year. He did not receive any sentence other than probation. He was served with a Notice to Appear for removal proceedings in 2006, charged with being deportable for conviction of a CIMT that he committed within five years of admission and that carried a potential sentence of one year. INA 237(a)(2)(A)(i).

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The Board found that Mr. Garcia had the seven years of continuous residence since admission that is required for LPR cancellation. Mr. Garcia’s 2001 conviction made him removable under § 237(a)(2), but it was not an offense “referred to” in § 212(a)(2), because it came within the petty offense exception. Therefore, the 2001 conviction did not stop the clock on accrual of the seven years, under INA § 240A(1)(B). The clock only stopped in 2006, when he was served with a Notice to Appear shortly after accruing the seven years. See § 240A(1)(A). Youthful Offender Exception. Although it is less commonly used, the youthful offender exception provides the same benefits as the petty offense exception described above, and it can be a vital defense for youth who were convicted as adults. It provides that a person who has committed a single CIMT is not inadmissible if (a) she committed the CIMT while under age 18 but was convicted of as an adult, and (b) five years has elapsed since the conviction or release from resulting imprisonment. See § 212(a)(2)(A)(ii)(I) and see Chapter 2.

47

Matter of Garcia affirms the holding in Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003) regarding the petty offense exception, and thereby resolves a conflict between Matter of GarciaHernandez, and Matter of Deando-Roma, 23 I&N Dec. 597 (BIA 2003). See Matter of Garcia, 25 I&N 335 and n.4. Note that some older federal cases that were resolved without the benefit of the BIA’s decisions have held that an offense that came within the petty offense exception stopped the seven years. See, e.g., BrisenoFlores v. Att’y Gen. of the United States, 492 F.3d 226 (3rd Cir. 2007). Where appropriate, these decisions should be challenged on the grounds that the issue of the petty offense exception was not raised, that the court did not have the benefit of the BIA precedent such as Matter of Garcia, and that the court stated that it would give Chevron deference to BIA decisions in interpreting issues such as the stop-time rule.

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b. The offense must “render” the LPR inadmissible under § 212(a)(2) or removable (deportable) under either § 237(a)(2) or § 237(a)(4) To stop the seven-year clock, an offense must be referred to in INA § 212(a)(2), and also must render the LPR inadmissible under § 212(a)(2) or deportable under § 237(a)(2) or (a)(4). See INA § 240A(d)(1)(B). While there is not direct precedent on the subject, the proper reading of this section is that: • •

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If an LPR is brought into removal proceedings charged with deportability under INA § 237, then in order to stop the clock, the offense must be referred to in INA § 212(a)(2) and make the person deportable under § 237(a)(2) or (a) (4). If instead the LPR is in removal proceedings charged with being inadmissible under INA § 212(a)(2), then in order to stop the clock, the offense must be referred to in INA § 212(a)(2) and must make the person inadmissible under § 212(a)(2).

Most LPRs in removal proceedings are charged with being deportable under INA § 237(a), in proceedings initiated while they are in the United States following an admission. See INA § 237(a). But in some cases, LPRs in removal proceedings are charged with being inadmissible under INA § 212(a), in proceedings initiated at the border or border equivalent, because upon return from a trip abroad they are deemed to be seeking a new admission under INA § 101(a)(13)(C). See Chapter 1. We will discuss the stop-time rule as it applies in each type of proceeding. 4. Stop-time rule for permanent residents charged with being deportable Where removal proceedings are based on a charge of deportability, there are two questions relating to the LPR cancellation stop-time rule at INA § 240A(d)(1)(B). First, must the offense be referred to in § 212(a)(2) and render the LPR deportable under § 237(a)(2) or (4), or is it sufficient for the offense to be referred to in § 212(a)(2) and render the LPR inadmissible under 212(a)(2)? The best answer is, it must make the person deportable.

a. To stop the clock, the offense must make the LPR deportable Section 240A(d)(1)(B) provides that the seven-year clock stops when the LPR has committed an offense “referred to in” INA § 212(a)(2) that “renders the alien inadmissible to the United States” under § 212(a)(2) “or removable from the United States” under §§ 237(a)(2) or 237(a)(4). A permanent resident in the United States is not subject to the grounds of inadmissibility. Instead, she is subject to the grounds of deportability. 48 Therefore, no conviction can “render” the person

48

See INA §§ 204(c)(2), (3), 240(e)(2).

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Second, must the offense trigger analogous grounds (for example, be “referred to” in the moral turpitude section of § 212(a)(2), and make the person deportable under the moral turpitude deportation ground), or can the government “mix and match” grounds (for example, the offense is “referred to” in the moral turpitude section of § 212(a)(2), but it makes the person deportable under the domestic violence deportation ground)? The best answer is, the grounds should be analogous.

inadmissible. Depending on the facts of the case, this can be a critical distinction in applying the stop-time rule. Example: Maurice was admitted to the U.S. as an LPR in 2006. In 2008 he was convicted of possessing 28 grams of marijuana. That is an offense “referred to” in the controlled substance inadmissibility ground. 49 But the conviction does not make Maurice deportable under the controlled substance deportation ground, because the ground contains an automatic exception for a first possession of 30 grams or less of marijuana. INA § 237(a)(2)(B)(i). See Chapter 2. In 2015 Maurice was convicted of possessing cocaine. ICE charges him with being deportable for the cocaine conviction. ICE asserts that his seven years ceased to accrue in 2008, because the marijuana offense was “referred to” in 212(a)(2) and it “rendered” him inadmissible under § 212(a)(2). Maurice should argue that because he is subject to the grounds of deportability, not inadmissibility, the marijuana offense did not “render” him inadmissible. Therefore, it did not stop the clock under § 240A(d). Example: Assume the same facts about Maurice, except that he was not convicted in 2008. Instead, during his cancellation hearing he simply admitted that he had used marijuana in 2008. The controlled substance inadmissibility ground includes either conviction or admission of an offense; see Chapter 2. In some cases, ICE is asserting that this type of admission stops the clock because the offense is referred to in § 212(a)(2) and allegedly “renders” the person inadmissible.

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Example: Samantha was admitted to the U.S. as an LPR in 2005. In 2011 she committed and was convicted of a felony crime involving moral turpitude. The offense is referred to in the moral turpitude inadmissibility ground at INA § 212(a)(2) (because it was a CIMT conviction that did not come within the petty offense exception), but it did not make her deportable under the moral turpitude ground at INA § 237(a)(2) (because she did not commit the offense within five years of admission). See Chapter 2. In 2016 she was convicted of a crime of child abuse. ICE charges her with being deportable on that ground under INA § 237(a)(2)(E)(i). ICE asserts that her seven years ceased to accrue in 2011, because the offense was “referred to” in § 212(a)(2) and it “rendered” her inadmissible under § 212(a)(2). Samantha should argue that because she is subject to the grounds of deportability, not inadmissibility, the 2008 offense did not “render” her inadmissible and therefore did not stop the clock under § 240A(d). The language of § 240A(d) itself requires us to distinguish between an offense that is “referred to” in § 212(a)(2), and an offense that actually “renders” the person inadmissible under § 212(a)(2) or deportable under § 237(a)(2) or (4). If one subtracts the “renders admissible” language as a separate element of the stop-time rule, then every offense that is referred to in INA

49

INA § 212(a)(2)(A)(i)(II) refers to conviction or admission of an offense relating to a controlled substance. Unlike the deportability ground, it has no exception for a single conviction for possession of 30 grams or less of marijuana. (There are some benefits, however. For example, an inadmissible person might be eligible to apply for a § 212(h) waiver. See Chapter 2.)

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§ 212(a)(2) would also render the person inadmissible. In that case, all of the language regarding deportation grounds would be meaningless surplusage. Other language in § 240A makes a similar distinction. The bar to eligibility for “10-year” nonLPR cancellation applies to persons who have been “convicted of an offense under” INA §§ 212(a)(2) or 237(a)(2), while the bar to VAWA non-LPR cancellation applies to persons who are “inadmissible” or “deportable” under those sections. 50 See INA § 240A(b). In GonzalezGonzalez v. Ashcroft, the Ninth Circuit found that both the “renders” phrase at § 240A(d), and the “inadmissible” and “deportable” phrases at § 240A(b), require that the person must actually be subject to the applicable grounds. It contrasted this with the “referred to” and “convicted of an offense under” language, which it held does not require that. 51

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However, there does not appear to be precedent that directly addresses the issue, because there does not appear to be any precedent where an offense that did not cause deportability was held to stop the clock. And at least in some areas, immigration judges are divided. For example, in the “Maurice” example above, involving a small amount of marijuana, advocates report that immigration judges in Chicago have held that the clock did not stop, while those in Seattle have held that it did. You should expect that ICE attorneys will argue that continuous residence terminates any time a permanent resident has committed an offense referred to in § 212(a)(2), regardless of whether that person is subject to the grounds of inadmissibility or deportability. ICE might try to rely on Matter of Jurado, 24 I&N Dec. 29 (BIA 2006). There the BIA held that an offense that was not formally charged in the NTA could stop the clock under INA 240A(d), as long as it actually would cause the person to be inadmissible or deportable. We find that the phrase “renders the alien inadmissible … or removable” in section 240A(d)(1)(B) of the Act requires only that an alien “be or become” inadmissible or removable, i.e., be potentially removable if so charged. Consequently, we conclude that an alien need not actually be charged and found inadmissible or removable on the applicable ground in order for the criminal conduct in question to terminate continuous residence in this country.

50 See the bar to 10-year non-LPR cancellation at INA 240A(b)(1)(C), and the bar to VAWA non-LPR cancellation at § 240A(b)(2)(A)(iv). 51 See Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649, 652-653 and n. 3 (9th Cir. 2004) 52 25 I&N Dec. 332 (BIA 2010). 53 23 I&N Dec. 590 (BIA 2003).

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Id., at 31 [emphasis added]. However, Jurado stands for the proposition that if the applicable inadmissibility or deportability charge had been included in the NTA, the person could have been found removable. That supports the interpretation that if the removal proceedings were premised upon a charge of deportation, only a deportability ground could be alleged in the NTA. A person cannot be “rendered inadmissible” as defined in § 240A(d)(1) unless he or she is also subject to the grounds of inadmissibility, and that “potentially removable” means that if charged under that ground, the charge would be sustained. Use Matter of Garcia 52 and Matter of GarciaHernandez 53 to support this argument.

5. To stop the clock, the offense must come within analogous inadmissibility and deportability grounds, e.g., the moral turpitude or controlled substance grounds In order to stop the clock, must the offense trigger analogous grounds (for example, be “referred to” in the moral turpitude section of § 212(a)(2), and make the person deportable under the moral turpitude deportation ground), or can the government “mix and match” grounds (for example, the offense is “referred to” in the moral turpitude section of § 212(a)(2), but it makes the person deportable under the domestic violence deportation ground)? Example: Herman entered the U.S. without inspection and lived in undocumented status for many years. Over time he was convicted of DUI’s and other offenses that were not removal grounds, and he received in total more than four and a half years in sentences for all convictions. In 2008 he became a permanent resident through consular processing. In 2012 he was convicted of a deportable crime of domestic violence and sentenced to six months in jail. Now Herman has a lifetime total of sentences imposed of at least five years, for at least two convictions. This is an inadmissibility ground, described at INA § 212(a)(2)(B). Herman does not leave the U.S. In 2017, ICE charged Herman with being deportable under the domestic violence ground. It also charged that he was not eligible for LPR cancellation, for lack of the seven years. His first admission was 2008, and ICE charged that his 2012 conviction stopped the seven-year clock because it was an offense “referred to” in § 212(a)(2) (as two or more convictions with an aggregate five-year sentence) that rendered him deportable under § 237(a)(2) (as a deportable crime of domestic violence). Are they wrong?

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Counsel can investigate the argument that a careful reading of Matter of Campos-Torres, 22 I&N Dec. 1289 (BIA 2000) prohibits this. In Campos-Torres, the Board held that the clock did not stop when the respondent was convicted of unlawful use of a firearm, which made him deportable under the firearms ground in INA § 237(a)(2). It is important to note that several of the grounds of deportability found in section 237(a)(2) of the Act are referred to in section 212(a)(2) of the Act, whereas others, such as the ground set forth in section 237(a)(2)(C), are not. … Accordingly, we find that because the respondent’s firearms offense, which rendered him deportable under section 237(a)(2)(C) of the Act, is not referred to in section 212(a)(2) of the Act, it did not “stop time” under section 240A(d)(1). Id. at 1293, 1295. 6. Stop-time rule for permanent residents charged with being inadmissible A permanent resident who returns from a trip outside the United States usually is deemed not to be seeking a new admission. Therefore removal proceedings based on inadmissibility cannot be brought. However, if officials can prove that she comes within one of the exceptions listed at § 101(A)(13)(C), then she is considered to be seeking an admission, and she can be charged in removal proceedings for being inadmissible. 54 Among other defenses to removal, the person can seek LPR cancellation. 54

See Chapter 1, § 1.3, Subsection B.

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In this instance, ICE will charge that the clock is stopped by commission of an offense “referred to” in § 212(a)(2) that renders the person inadmissible under § 212(a)(2). INA § 240A(d)(1)(B). It appears that, if the person is in removal proceedings based on a charge of inadmissibility, any offense “referred to” in § 212(a)(2) also would render the person inadmissible under § 212(a)(2). As discussed above, an offense that comes within the petty offense or youthful offender exceptions to the moral turpitude inadmissibility ground is not an offense “referred to” in § 212(a)(2). § 4.5

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Conviction of an Aggravated Felony

Section 240A(1)(A)(3) bars anyone who has been convicted of any aggravated felony from cancellation of removal. This is an extremely harsh rule, because the term “aggravated felony” is both very broadly defined in INA § 101(a)(43), and is also retroactive to any crime committed at any time in a person’s life, no matter how long ago, and no matter whether the offense was a deportable offense at the time it was committed. 55 Chapter 2, § 2.4 summarizes what offenses constitute aggravated felonies under INA § 101(a)(43). As always, it is important to remember that, with a few exceptions, the beneficial “categorical approach” applies in determining whether a conviction is an aggravated felony. This analysis, as set out by the Supreme Court, can result in surprising wins, and a great deal of adverse precedent has been overturned. To competently represent the client, counsel must examine the conviction using this analysis. See discussion and instructions for performing the categorical approach in Chapter 2, §§ 2.4-2.6. If the IJ finds that the offense is an aggravated felony, she will find that the immigrant is not eligible for LPR cancellation of removal. Be prepared to appeal an incorrect finding. Also, consider what other relief might not be barred. For example, an aggravated felony that does not involve drug trafficking might not bar an application for adjustment of status coupled with a § 212(h) waiver. See Chapters 6 and 7. If the conviction was from before April 24, 1996, the conviction might be subject to § 212(c) relief. See Chapter 4. A few other forms of relief are not absolutely barred by an aggravated felony, including withholding of removal, the Convention Against Torture, and a U Visa. See Chapter 8.

A.

Proving That Your Client Merits a Favorable Exercise of Discretion

The Standard for Exercising Discretion

Once the applicant has proven he or she meets all of the eligibility requirements for cancellation of removal, and that none of the mandatory bars apply, the case has really just begun. Now you must convince the immigration judge that your client merits a favorable exercise of discretion. See INA § 240(c)(4)(A)(ii). Congress made it clear that the standards and case law for discretionary decisions in § 212(c) relief should be carried over into cancellation of removal. In addition, in Matter of C-V-T, 22 I&N Dec. 7 (BIA 1998), the BIA ruled that the general standards for determining discretion for 55

The current definition of what constitutes an aggravated felony in INA § 101(a)(43) was expanded under IIRIRA, and made applicable to convictions before, on, or after IIRIRA’s effective date of April 1, 1997.

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§ 4.6

§ 212(c) cases that were developed in Matter of Marin, 16 I&N Dec. 581 (BIA 1978) and other § 212(c) cases are applicable to discretion under LPR cancellation of removal cases. Therefore, you will be looking to § 212(c) cases for guidance. 56 In Matter of Marin, supra, the BIA set the standard for adjudicating former § 212(c) cases, requiring that immigration judges weigh both positive and adverse factors in a permanent resident’s life in order to determine if a favorable exercise of discretion is warranted. As the BIA put it: The exercise of discretion in a particular case necessarily requires a consideration of all the facts and circumstances involved. There must be a balancing of the social and humane considerations presented in the alien’s favor against the adverse factors evidencing his undesirability as a permanent resident. Matter of Marin, supra, at 584. Factors identified in Matter of Marin as relevant include: Favorable Considerations: • • • • • • • • •

Family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character.

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Adverse Considerations: • • • •

The nature and underlying circumstances of the exclusion or deportation ground at issue, The presence of additional significant violations of this country’s immigration laws, The existence of a criminal record and, if so, its nature, recency, and seriousness, and The presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

Matter of Marin, supra, at 584-85.

56

See Chapter 5 on former § 212(c).

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Other relevant factors that have been identified in case law include the pregnancy of the applicant or the applicant’s partner, 57 the likelihood of persecution in the home country, 58 and particularly the existence of U.S. citizen children. 59

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However, some cases have given less weight to positive factors that arose after a final order or after the person became deportable. See Matter of Correa, 19 I&N Dec. 130, 134 (BIA 1984); Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992). 1. Difference from former § 212(c) The factors to be considered in cancellation of removal cases do differ in one significant respect from the former § 212(c) cases. There is no longer a requirement that an applicant demonstrate unusual or outstanding equities. Instead, the BIA has held that the IJ should weigh the favorable and adverse factors and determine whether the totality of the circumstances indicates that a favorable exercise of discretion is warranted. Matter of Sotelo, 23 I&N Dec. 201 (BIA 2001); see also Dave v. Ashcroft, 363 F.3d 649, 651 (7th Cir. 2004). Nevertheless, it is worth looking at some of the old cases that dealt with unusual and outstanding equities, if only to distinguish your own case or to show that even though unusual and outstanding equities are not required, your client’s equities meet that standard. 60 2. The immigration judge and/or the BIA must explain the basis for the decision in the opinion Matter of Marin, supra, not only set forth the standards for adjudicating former § 212(c) cases. It also required that immigration judges articulate the basis for their opinions in the decision. Matter of Marin, at 585. In addition, courts have overturned denials of former § 212(c) relief where the immigration judge or BIA failed to explain the basis for the negative determination or failed to show that all relevant factors were considered. Hazzard v. INS, 951 F.2d 435 (1st Cir. 1991), Diaz-Resendez v. INS, 960 F.2d 493 (5th Cir. 1992), Cortes-Castillo v. INS, 997 F.2d 1199 (7th Cir. 1993); Tipu v. INS, 20 F.3d 580 (3rd Cir. 1994); Georgiu v. INS, 90 F.3d 374 (9th Cir. 1996).

The downside to this balancing test is that no matter how many equities a client has, if there are serious adverse factors involved, such as a history of violence, an immigration judge will likely deny relief in the exercise of discretion. 57

Drobny v. INS, 947 F.2d 241 (7th Cir. 1991). Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992). However, in Matter of D-, 20 I&N Dec. 915 (BIA 1994) the BIA held that IJ may consider general country conditions but did not err by refusing to admit asylum declarations. 59 Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995). 60 See Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). 58

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The good news about the factors that may be considered in a cancellation case is that they are very broad, and that they are not necessarily limited only to those factors identified in case law. In fact, Matter of Marin called for immigration judges to weigh all the facts and circumstances involved in the case. Id. at 584. In addition, unlike inadmissibility waivers, hardship to the applicant himself, as well as family members, his community, his church, his employer, etc. are all relevant. Practitioners should therefore delve into their client’s histories and social circumstances to unearth as much detail as possible to support a favorable exercise of discretion.

B.

Proving That Your Client Merits a Favorable Exercise of Discretion

As we saw in Chapter 1, applicants for discretionary relief are required, under INA § 240(c)(4)(A)(iv) to demonstrate that they merit a favorable exercise of discretion. In addition, they are also required, under INA § 240(c)(4)(B), to submit information or documentation to support the application and to corroborate testimony if required by an immigration judge (unless they can show they don’t have it or can’t reasonably obtain it). Given these stringent requirements, it is incumbent upon practitioners to work with clients to obtain the best evidence possible, and to address each and every factor identified in Matter of Marin, supra, and subsequent case law specifically, in addition to any unusual positive or sympathetic circumstances that you discover about your client. Addressing the factors identified as relevant in the case law includes the negative factors. While you want to emphasize your client’s equities, you cannot ignore adverse factors, and sometimes it makes sense to introduce negative factors, so as to diffuse them and diminish their potential significance. Example: Frank has been a permanent resident for many years, but is now in removal proceedings because of a domestic violence offense. There is also evidence that he was convicted of drunk driving, which is not a deportable offense, but is nonetheless an adverse factor in his case. Do you want to bring it up? Let’s say Frank used to have drinking problem and would become violent when drunk. However, now he goes to AA and has maintained a clean record. He has a good report from his probation officer. In this case, you should bring up the drunk driving, because it ties into the very positive factor that he doesn’t drink anymore, and that his drinking is what brought him to commit a deportable offense, and that he is now rehabilitated.

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What if Fred has not been quite so clean? Should you bring up his one conviction for drunk driving? This is a closer call. A single drunk driving offense does not necessarily create an inference that a person is a chronic alcohol abuser. Nevertheless, the ICE attorney could bring it up in such a way as to make it look worse than it really is. It might be worth it to have Fred testify about it at the hearing, to show that it was only one offense, no one was hurt, he’s sorry he did it, etc. If Fred “comes clean” he may be viewed as more credible by the immigration judge. If he testifies about what a fine human being he is, and yet he’s failing to disclose a conviction, his credibility might be damaged. In any event, the conviction will be on his fingerprint report, so it is likely to be brought up by either the ICE attorney or by the immigration judge. 1. What kind of evidence should you submit? Here are some suggested forms of evidence to submit in support of either a cancellation of removal or former § 212(c) application: •

A declaration from your client is essential, though not sufficient by itself, to win a case. In it, your client should describe in great detail how he lives, what his life is like, and how it would change dramatically for the worse if he were to be deported. The declaration should address the offense that made the client deportable, and demonstrate how he has learned his lesson and/or has been rehabilitated. However, be careful to check

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and double-check all details, and make sure to go over the declaration with your client during your hearing preparation to make sure he remembers all the details. Otherwise, ICE could use the declaration to impeach your client’s credibility. Declarations from other family members, especially spouses, as to the importance of the applicant to them and how (if true) he has become rehabilitated. As with the applicant’s declaration, make sure to check all details and prepare each witness well for testifying to avoid having them impeached on cross-examination.

•

Declarations from people with authority who know your client, such as a pastor, employer, landlord, or teacher are also very helpful if they can show a better side to his nature or some quality such as artistic talent, skill, a good work ethic, interest in learning, etc.

•

Remember that witnesses must be available for cross-examination, so that even those who testify by declaration must be available, at least by telephone, for the hearing. Make sure that they are available.

•

Psychological evaluations of your client and his family are also very important to establish the degree of fear, grief, and psychological distress your client’s deportation would cause himself and his family. It’s not enough for clients and their families to declare they would be traumatized by the applicant’s deportation; you need documentation of how traumatized they would be. All professional witnesses must include curriculum vitae demonstrating their qualifications to testify as expert witnesses. Needless to say, the expert witness must be prepared to testify both as to his or her expertise and to the particular details in the report about your client and his family.

•

If your client or his family members have medical conditions that would be adversely affected by the stress of deportation and/or treatment is inadequate or unavailable in the home country, evidence documenting both the conditions and the availability of treatment in the home country should be obtained. These can often be found on a general Internet search.61

•

If your client would be subject to adverse political and/or economic conditions in the home country, any and all evidence documenting the political and economic conditions in the home country should be obtained. 62

•

Evidence of rehabilitation is a very important factor. Evidence of successful completion of probation, or of prison education programs, or of counseling such as domestic violence counseling, should be submitted.

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Helpful websites for determining the availability of healthcare in different countries: the World Health Organization: www.who.int; and the Center for Disease Control: www.cdc.org. 62 Documentation of political, human rights, and economic conditions can be found on the website for the University of Minnesota’s Human Rights Library at: www1.umn.edu/humanrts/.

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2. Addressing specific factors a. Years as a permanent resident The length of your client’s permanent residence is an important factor to be considered. Matter of Marin, supra. If your client has been an LPR from a very early age, stress that in your evidence. United States v. Figueroa-Taveras, 228 F. Supp. 428 (S.D.N.Y. 2002). 63 Show how Americanized your client is, and how returning him to a country that he barely knows would be a psychological shock. Do this through evidence from a psychiatrist or psychologist, in addition to having your client talk about his sense of identity with American culture in his declaration. Remember that long-term permanent residence has been identified as an outstanding equity, and make sure the immigration judge is aware of this. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990). If your client has not been an LPR for very long, stress how much LPR status means to him, for example how long did he have to wait till he became an LPR (this is particularly relevant to former refugees) and how much he has become acculturated to this country despite the short length of his LPR status. You can also emphasize family and community ties in the U.S. if they exist and the lack thereof in the home country. b. Hardship to the applicant What is your client going to lose by being deported? How will his life be impacted? How and where does he live now and what are the prospects for change if he goes back to his home country? Will he be able to find a job? Does he have the psychological skills to cope with a major change? What is his biggest fear about the prospect of being deported? Does he speak, read, and write the language of his home country? Will his family go with him? Does he have family in his home country? Who are they and how well does he know them? Would they be able to help him if he went back? What are conditions in his home country like? Is there economic deprivation, violations of human rights, imprisonment of criminal deportees, political turmoil, natural disasters, lack of adequate sanitation, lack of medical care? All of these questions should be asked of your client to get him thinking about this and articulating how he would suffer from deportation.

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c. Remorse, rehabilitation While case law has stated that remorse and rehabilitation is not a prerequisite to relief even if the person has a criminal record, unless the crime is recent and serious, as a practical matter if you can show evidence of remorse or rehabilitation, you should do so. See Matter of Arreguin, 21 I&N Dec. 38, 40 (BIA 1995); Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Edwards, 20 I&N Dec. 191, 196 (BIA 1990); 64 Matter of C-V-T-, 22 I&N Dec. 7, 12 (BIA 1988).

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212(c) granted where respondent’s equities, including 33 years in the U.S. since the age of four, his work history and the fact that all of his family were in the U.S., found to outweigh evidence of a lengthy prison record. 64 Matter of Edwards corrected prior case law that may have been construed to require rehabilitation when it held that Matter of Marin, supra, “… [H]as been interpreted in some cases as though a clear showing of reformation is an absolute prerequisite to a favorable exercise of discretion in every case involving an alien

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This can be in the form of a probation report, prison record, as well as testimony and declarations of witnesses who are in a position to know, such as close family members. Moreover, if you can get ICE to stipulate that your client is rehabilitated, the immigration judge is bound by that stipulation. Rarogal v. INS, 42 F.3d 570 (9th Cir. 1994). Case law has also established that even a person in custody can show rehabilitation. See Matter of Salmon, 16 I&N Dec. 734 (BIA 1978), Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995); Georgiu v. INS, 90 F.3d 374 (9th Cir. 1996). The BIA held that despite a person’s current incarceration, acceptance of responsibility and achievements while in prison, such as voluntarily pursing GED studies, having no prison infractions, and being involved in church activities are favorable indicators of efforts at rehabilitation that should be considered. Matter of Arreguin, supra. However, if your client is still in custody it will be much more difficult to show rehabilitation than if he has had time to return to normal life.

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Evidence showing rehabilitation can include the lack of additional crimes, enrollment in and attendance of rehabilitation programs, statements of remorse, and letters of good character. Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993), Georgiu v. INS, 90 F.3d 374 (9th Cir. 1996). d. What if your client insists he is innocent of the crime in question? A Seventh Circuit case holds that a person’s refusal to acknowledge guilt, by itself, cannot be considered evidence of a lack of rehabilitation. Guillen-Garcia v. INS, 999 F.2d 199 (7th Cir. 1993).65 However, in the Sixth Circuit, a court found that the petitioner’s insistence that only her co-defendant was guilty of the drug crime she was convicted of was a negative factor, tipping the balance in favor of a denial of relief. Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1993). As a practical matter, it is risky to insist on innocence, because immigration judges are not permitted to behind the record of conviction to determine guilt or innocence, and a failure to acknowledge guilt could be construed as a lack of credibility as well as a lack of remorse. See Matter of Roberts, supra, Matter of Contreras, 18 I&N Dec. 30 (BIA 1981). Moreover, lack of rehabilitation can be weighed against your client. Matter of Roberts, supra; see also PalaciosTorres v. INS, 995 F.2d 96 (7th Cir. 1993).

Nevertheless, even though immigration judges must accept the fact of the conviction as proof of a person’s guilt, at least one circuit court has found that this does not prevent immigration judges from ascertaining the context in which a criminal act occurred or from accepting evidence about mitigating circumstances which may surround a conviction. Gouveia v. INS, 980 F.2d 814 (1st with a criminal record. To the extent that this language may be read as creating an absolute prerequisite to a favorable exercise of discretion, we withdraw from it.” Edwards, 20 I&N Dec. at 196. 65 Petition for Writ of Certioari to the Supreme Court denied: 516 U.S. 1073; 116 S.Ct. 775 (1996).

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Sometimes clients are pressured into pleading guilty to crimes that they may not have committed by their criminal defense attorneys and/or state court judges. However, once someone makes an admission of guilt by entering a plea, immigration judges must accept that the person was guilty of the crime unless the conviction is overturned. Matter of Roberts, supra, and Matter of Contreras, supra. Therefore, if your client insists he was innocent, you need to explain that insisting on his innocence in immigration court could backfire, and cause the judge to conclude that your client is not credible.

Cir. 1992). So mitigating factors are relevant and should be presented, but an out and out declaration of innocence may be dangerous for your client. If your client’s offense was committed when he was a teenager, and/or under the influence of others with whom he no longer associates, that could be a mitigating factor. If he committed the offense (such as theft) because he was destitute, and he needed money because of a family member’s illness, for example, that’s another mitigating factor that should be presented. If she committed the offense under duress from a spouse or partner, e.g., domestic violence situation, this is another mitigating factor that should be presented. It is important when there is a criminal record to explore the possible motives for the crimes in the first place so that you can present them as mitigating factors. e. Other relevant factors

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Because these and other factors that are relevant to LPR Cancellation of Removal and § 212(c) applications, such as family separation and hardship, are also relevant to other forms of relief from deportation that are covered in this book, they are addressed in detail in Chapter 10.

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Appendix 4-A-1

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Appendix 4-A-20

CHAPTER 5 RELIEF UNDER FORMER § 212(C)

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This chapter includes: § 5.1 § 5.2 § 5.3

Overview of Requirements and Procedure for Former § 212(c) Relief ............. 5-1 The Former § 212(c) Relief and the Holding in INS v. St. Cyr .......................... 5-7 Supreme Court Decision in Judulang v. Holder, Rejecting Statutory Counterpart Rule ................................................................................................ 5-8 Adjustment of Status and § 212(c) ................................................................... 5-11 Section 212(c) Eligibility for Those Convicted by Jury Trial .......................... 5-12 When the Seven Years of Lawful Unrelinquished Domicile Begins and Ends .................................................................................................................. 5-13 How Dates of Conviction Affect § 212(c) Eligibility ...................................... 5-14 Section 212(c) Eligibility for People Who Were Ordered Deported before St. Cyr Was Decided ............................................................................. 5-16 DHS Regulations Governing § 212(c) Applications in the Wake of St. Cyr ................................................................................................ 5-19 Proving That Your Client Merits a Favorable Exercise of Discretion ............. 5-22

§ 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10

PART ONE: INTRODUCTION AND OVERVIEW OF FORMER § 212(C) § 5.1 A.

Overview of Requirements and Procedure for Former § 212(c) Relief

Introduction

Former § 212(c) of the INA was a discretionary waiver of almost all grounds of deportability and exclusion, 1 available only to certain long-time permanent residents. Section 212(c) was eliminated by Congress from the INA as of April 1, 1997. 2 However, in INS v. St. Cyr the Supreme Court held that for some permanent residents who were convicted of crimes before April 1, 1997, § 212(c) is still available. 3 The rules governing who currently remains eligible for § 212(c) are discussed in this chapter. However, bear in mind that these rules are ever changing and complex, and you should do further research to determine the latest developments in case law in your jurisdiction.

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Before IIRIRA came into effect on April 1, 1997, what we now call grounds of inadmissibility were called the grounds of exclusion. 2 April 1, 1997 is the effective date for this section of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which eliminated 212(c) relief. 3 INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

The bottom line is this: any permanent resident anywhere in the country who is under deportation or removal proceedings 4 based on a conviction that occurred before April 24, 1996, or even before April 1, 1997, and who meets the § 212(c) requirements under the old law may have a right to apply for § 212(c) and therefore should assert that he or she cannot be deported or removed until his or her application has been decided. Application Form: Applications for § 212(c) relief must be filed on Form I-191, available on the USCIS website 5 and also reproduced in this chapter as Appendix 5-A (along with the instructions). This is a deceptively simple form. Completion of the form alone must be done carefully, but it’s the supporting evidence that is most important. 6 Evaluating Cases: If the answer to either of the following questions is yes, the noncitizen might be eligible for the former § 212(c) relief. 1. Before April 24, 1996, was the person a permanent resident and convicted of an offense, whether pursuant to a plea or a trial, (including an aggravated felony) that currently makes her deportable or inadmissible? If so, the person might be eligible to apply for the generous § 212(c) waiver that was in effect before the 1996 AEDPA. 7 2. Between April 24, 1996 and April 1, 1997, 8 was the person a permanent resident and convicted of an offense, whether pursuant to a plea or trial, that currently has harmful immigration consequences, but is not an aggravated felony or drug crime? In that case counsel should check to see if person might be able to apply for the limited § 212(c) that was in effect after AEDPA (see § 5.7 below). B.

Summary of Former INA § 212(c)

Section 212(c) stated that “aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [certain specified grounds of exclusion].” 9

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Those with “Orders to Show Cause” (OSCs) initiating deportation proceedings prior to 4/1/1997, or in an extremely rare case, those with I-122s initiating exclusion proceedings prior to 4/1/97, whose proceedings are still pending before the immigration court are in “deportation” or “exclusion” proceedings, respectively. On 4/1/97, the distinction between “exclusion” and “deportation” proceedings was eliminated, and “Notices to Appear” issued and filed with the courts on or after that date, initiated “removal proceedings.” There are important differences, so if your client was issued an OSC or an I-122, additional investigation and review of pertinent regulations, statutes, and case law is recommended. 5 See www.uscis.gov. 6 See § 5.10, Chapter 4, § 4.6 and Chapter 10 for guidance regarding the evidence required to show eligibility and on preparing your client’s and other witnesses’ testimony. 7 AEDPA is the Anti-Terrorism and Effective Death Penalty Act, Pub.L. 104-132, which was in effect from April 24, 1996 to March 31, 1997. 8 April 1, 1997 is the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which eliminated § 212(c) relief (see below). 9 As of 1994, most grounds of inadmissibility could be waived by § 212(c) except for the security and terrorist grounds in former INA § 212(a)(3) and the international child abduction ground in former INA § 212(a)(9)(C).

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As written, § 212(c) only applied to returning lawful permanent residents facing exclusion proceedings after a trip abroad. However, § 212(c) relief was extended to lawful permanent residents in deportation proceedings by the Second Circuit Court of Appeals in Francis v. INS, 532 F.2d 268 (2nd Cir. 1976) on equal protection grounds. Francis was subsequently extended nationwide by the Board of Immigration Appeals (BIA) in Matter of Silva, 16 I&N Dec. 26 (BIA 1976). The court in Francis held it would be a denial of equal protection to offer § 212(c) to LPRs who were excludable but deny it to similarly situated LPRs who were deportable.

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The Francis holding was later limited so that § 212(c) was available to lawful permanent residents who were deportable only if the deportable offense had an exact counterpart in the grounds of exclusion. Matter of Wadud, 19 I&N Dec. 182 (BIA 1984); Matter of Granados, 16 I&N Dec. 726 (BIA 1979); Komarenko v. INS, 35 F.3d 432 (9th Cir.1994); Cabasug v. INS, 847 F.2d 1321 (9th Cir.1988). Therefore, an alien deportable for two crimes of moral turpitude would be eligible for § 212(c) relief because there is an exclusion ground for crimes of moral turpitude. Aliens with firearms offenses, however, were found not to be eligible for § 212(c) relief because there is no firearms ground of exclusion. However, after much federal court litigation and the Supreme Court’s decision in Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476 (2011), the BIA has agreed that § 212(c) relief is available to lawful permanent residents with pre-April 1, 1997 convictions, even where there is no inadmissibility counterpart under the statute. Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014). The BIA also clarified in Abdelghany that § 212(c) is available regardless of whether the conviction occurred pursuant to a plea or trial. Section 212(c) was more generous than present-day cancellation of removal under INA § 240A(a) in the following ways: • • •

There was no stop time rule, There was no bar for aggravated felony convictions, and Theoretically, at least, you could obtain § 212(c) more than once. 1. Lawful permanent residence

As with cancellation of removal, someone who obtained LPR status by fraud or when otherwise not legally entitled to it is not eligible for § 212(c). See De La Rosa v. U.S. Dept. of Homeland Security, 489 F.3d 551 (2nd Cir. 2007), Gallimore v. Attorney General of the U.S., 619 F.3d 216 (3rd Cir. 2010), and Segura v. Holder, 605 F.3d 1063 (9th Cir. 2010). However, in Matter of Sosa-Hernandez, 10 the BIA found an individual eligible to apply for § 212(c), despite having obtained LPR status by fraud, because he also filed, and was granted, a waiver of the initial fraud under INA § 241(f). 11 The grant of that waiver “cured” his permanent residence retroactively to the date he was initially granted LPR status, thus making him a lawfully admitted permanent resident from the date of the initial grant. Because he could count all the time he had had LPR status, and not just the time from the grant of the § 241(f) waiver, toward the requirement of 10

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20 I&N Dec. 758 (1993). Former § 241(f) of the INA is the predecessor to the § 237(a)(1)(H) waiver, which is discussed in Chapter 8. 11

seven years of lawful unrelinquished domicile (described below), he was found eligible for § 212(c). 2. Lawful unrelinquished domicile Several courts of appeal have agreed (contrary to the former INS’ position) that seven years of lawful permanent residency was not always necessary to a finding of seven years of “lawful unrelinquished domicile” for purposes of § 212(c) eligibility. For example, in CastellonContreras v. INS, 45 F.3d 149 (7th Cir. 1995), the Seventh Circuit found that lawful domicile and lawful permanent residence are separate criteria, and that the term “lawful unrelinquished domicile” under 212(c) means the ability, under the immigration laws, to form the intent to remain in the United States indefinitely. Under this reasoning, the statutory requirement of seven years of “lawful unrelinquished domicile” made § 212(c) relief available to anyone with seven years of “lawful unrelinquished domicile” who attained legal permanent resident status some time during that period. CastellonContreras v. INS (above); see also Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th Cir.1995). Under § 212(c) “lawful unrelinquished domicile” continues after the commission of an offense, and also continues after the person has been placed in deportation or removal proceedings by issuance of an Order to Show Cause or Notice to Appear. Both lawful permanent residence and lawful unrelinquished domicile continue to accrue throughout administrative appeals (to the level of the Board of Immigration Appeals). Jaramillo v. INS 1 F.3d 1149 (11th Cir. 1993) (en banc). In the Ninth Circuit, if the person had contested deportability, lawful domicile would continue throughout the appeals to the federal court. Wall v. INS, 722 F.2d 1442, 1444 (9th Cir. 1984). Since the § 212(c) cases you are likely to see now are going to be for long-term permanent residents with very old crimes, the issue of whether or not someone has met the seven years of lawful unrelinquished domicile requirement is unlikely to arise unless you are doing a motion to reopen for someone whose case was decided a long time ago. 3. Discretion, burden of proof Section 212(c) of the Act is a discretionary remedy; therefore a showing of statutory eligibility alone is not enough to obtain relief. Instead, the immigration judge is required to determine whether an alien merits the relief sought. The alien bears the burden of demonstrating that his application warrants a favorable exercise of discretion. Matter of Marin, 16 I&N Dec. 581, 58283 (BIA 1978).

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The BIA has held that the exercise of discretion in a particular case necessarily requires consideration of all the facts and circumstances involved. There must be a balancing of the social and humane considerations presented in an alien’s favor against the adverse factors evidencing his undesirability as a permanent resident. Matter of Marin, at 584. The Board enunciated numerous factors to be considered in determining whether or not to grant § 212(c) relief:

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Favorable Considerations: • • • • • • • • •

Family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character.

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Adverse Considerations: • • • •

The nature and underlying circumstances of the inadmissibility or deportation ground at issue, 12 presence of additional significant violations of this country’s immigration laws, existence of a criminal record and, if so, its nature, recency, and seriousness, presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

Matter of Marin, at 584-85. Other relevant factors that have been identified in case law include the pregnancy of the applicant or the applicant’s partner, 13 the likelihood of persecution in the home country, 14 and particularly the existence of U.S. citizen children. 15 However, some cases have given less weight to positive factors that arose after a final order or after the person became deportable. See Matter of Correa, 19 I&N Dec. 130, 134 (BIA 1984); Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992). In addition, one or more of the adverse considerations may ultimately be determinative of whether § 212(c) relief is in fact granted in an individual case. Matter of Marin, above. 16 The BIA also held that as the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities. Matter of Marin, at 585. For example, a showing of outstanding equities would be required when an alien has been convicted of a serious drug offense, particularly one relating to the trafficking or sale of drugs, or where the applicant has a pattern of serious criminal activity. Matter of Marin, at 586 n. 4; Matter of Roberts, 20 I&N Dec. 12

The pre-4/1/1997 grounds of “excludability” may also be at issue. Drobny v. INS, 947 F.2d 241 (7th Cir. 1991). 14 Bastanipour v. INS, 980 F.2d 1129 (7th Cir. 1992). However, in Matter of D-, 20 I&N Dec. 915 (BIA 1994) the BIA held that IJ may consider general country conditions but did not err by refusing to admit asylum declarations. 15 Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995). 16 These criteria also apply to LPR cancellation of removal cases. See Chapter 4, supra. 13

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294 (BIA 1991); Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); United States v. GonzalesValerio, 342 F.3d 1051, 1056-57 (9th Cir. 2003). 17 Whether a showing of unusual or outstanding equities is necessary depends on the gravity of the offense per se. Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988); see also Matter of Marin. Such a showing may be mandated because of a single serious crime, or because of a succession of criminal acts which together establish a pattern of serious criminal misconduct. Matter of Buscemi, at 633-634. A § 212(c) waiver applicant who has a criminal record ordinarily will be required to make a showing of rehabilitation before relief will be granted as a matter of discretion. Matter of Marin, at 588 and Matter of Buscemi. However, a clear showing of reformation is not an absolute prerequisite to a favorable exercise of discretion in every case involving an alien with a criminal record. Rather, § 212(c) applications involving convicted aliens must be evaluated on a case-bycase basis, with rehabilitation a factor to be considered in the exercise of discretion. See Matter of Edwards, at 196. 4. Changes to § 212(c) under the Immigration Act of 1990 (IMMACT 90) IMMACT 90 eliminated eligibility for § 212(c) relief for noncitizens who have been convicted of one or more aggravated felonies and have served for such felony or felonies a term of imprisonment of at least 5 years. People who plead guilty or nolo contendere to such crimes prior to November 29, 1990 (the effective date of IMMACT 90) should be eligible for § 212(c) relief under the Supreme Court’s decision in INS v. St. Cyr, 121 S.Ct. 2271 (2001) and under the DHS regulations implementing St. Cyr. See 8 CFR § 1212.3(f)(4)(ii); see also Toya v. Fasano, 334 F.3d 917 (9th Cir. 2003). However, the Second Circuit disagrees with this eligibility finding, and holds that the restrictions in IMMACT 90 apply retroactively. See Reid v. Holmes, 323 F.3d 187 (2nd Cir. 2003) and Singh v. Mukasey, 520 F.3d 119 (2nd Cir. 2008). 5. Changes to § 212(c) under the Anti-Terrorism and Effective Death Penalty Act AEDPA The AEDPA made aliens who were deportable for the following offenses ineligible for relief under § 212(c): • • • • • •

Conviction for any aggravated felony Conviction for a controlled substance violation Drug addiction or abuse (no conviction necessary) Conviction for a firearms offense Espionage and sabotage offenses as defined in former INA § 241(a)(2)(D) Any two crimes of moral turpitude for which the sentence imposed (for each) is at least a year.

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The AEDPA was only in effect from April 24, 1996 to March 31, 1997; therefore it affects few people.

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This is a major difference from LPR Cancellation of Removal. See Chapter 4, § 4.6, supra.

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6. Effect of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) The IIRIRA, effective as of April 1, 1997, eliminated § 212(c) relief altogether and replaced it with cancellation of removal under INA § 240A(a). However, as noted above, the Supreme Court, in INS v. St. Cyr, 18 held that some individuals whose convictions preceded IIRIRA are still eligible for § 212(c) relief, even if placed in removal proceedings after IIRIRA came into effect on April 1, 1997.

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7. The impact of the Supreme Court’s Decision in INS v. St. Cyr There have been many BIA and federal court decisions interpreting the continuing availability of § 212(c) relief in light of the St. Cyr decision. In addition, DHS and EOIR have issued regulations purporting to implement the decision. Not surprisingly, this has led to some controversy, which is discussed in detail in Part Two below. PART TWO: WHO IS STILL ELIGIBLE FOR § 212(C) UNDER THE SUPREME COURT’S DECISION IN INS V. ST. CYR § 5.2

The Former § 212(c) Relief and the Holding in INS v. St. Cyr

Despite the enactment of the harsh AEDPA restrictions on § 212(c) and the elimination of § 212(c) relief by IIRIRA, the Supreme Court in INS v. St Cyr held that permanent residents who pled guilty to a deportable offense at a time when they may have benefited from the former § 212(c) relief remain eligible for § 212(c) today, under the version of the § 212(c) statute that was in effect at the time of their pleas. This holds true whether the LPR is in removal proceedings initiated through a “Notice to Appear” (NTA) on or after 4/1/1997, or deportation or exclusion proceedings initiated through an “Order to Show Cause” (OSC) or I-122 19 before 4/1/1997. The Court’s holding relied on the presumption against retroactive application of law, and applied the test for determining whether a law would have an adverse retroactive effect set forth in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994). Mr. St. Cyr had pled guilty before the passage of the AEDPA restrictions on § 212(c) to an aggravated felony drug trafficking offense that made him deportable, but for which § 212(c) relief was available at the time of his plea. The Court found that … depriving removable aliens of consideration for § 212(c) relief produces an impermissible retroactive effect for aliens who, like respondent, were convicted pursuant to a plea agreement at a time when their plea would not have rendered them ineligible for § 212(c) relief. … IIRIRA’s elimination of any possibility of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly attaches a new disability, in respect to transactions or considerations already past.… There can be little doubt that, as a general matter, alien defendants

19

INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001). OSCs were used to initiate deportation proceedings and I-122 forms to initiate exclusion proceedings.

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considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions. 20 The Court concluded: We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. 21 The St. Cyr decision was of great benefit for those permanent residents whose convictions predated IIRIRA and who would not be eligible for cancellation of removal under INA § 240A(a) either because of the stop time rule or because they had been convicted of aggravated felonies. § 5.3

Supreme Court Decision in Judulang v. Holder, Rejecting Statutory Counterpart Rule

The “statutory counterpart rule” initiated by USCIS was struck down by the U.S. Supreme Court in Judulang v. Holder, 565 U.S. 42, (2011). This former rule came about through the 2004 USCIS regulations 22 and the 2005 BIA decision in Matter of Blake. 23 Up until the regulations and the Blake decision, all cases held, and all parties assumed, that for purposes of § 212(c) under St. Cyr there was no difference between aggravated felonies relating to drugs and other aggravated felonies, and that most aggravated felony convictions that occurred before April 24, 1996 could be waived. A.

The Former Statutory Counterpart Rule

In Matter of Blake, the BIA greatly restricted the kinds of crimes that could be waived under INA § 212(c) as a defense to a charge of deportability, by requiring that the deportation ground triggered by the offense must be specifically analogous to an inadmissibility ground. As originally enacted, § 212(c) was a waiver of the grounds of exclusion, but was later determined to also apply to grounds of deportation that paralleled the exclusion grounds. 24 The BIA’s rationale in Matter of Blake was that because there is no specific “aggravated felony” ground of inadmissibility, people convicted of aggravated felonies that do not have an exact counterpart in the grounds of inadmissibility are not eligible for § 212(c). Matter of Blake; see also Matter of Brieva, 23 I&N Dec. 766, 770-773 (BIA 2005), aff’d Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007). The § 212(c) regulations also prohibited someone who was deportable under a

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INS v. St. Cyr, 533 U.S. 289 at 320-322, 121 S. Ct. at 2290-91 (internal quotation marks and citations omitted). 21 INS v. St. Cyr, at 326. 22 8 CFR § 1003.44, superseded by Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), see also Subsection § 5.9. 23 Matter of Blake, 23 I&N Dec. 722 (BIA 2005), rev’d Blake v. Carbone, 489 F.3d 88 (2nd Cir. 2007). Although Matter of Blake was reversed, before it was overturned, it was followed by a number of federal circuit courts. 24 See § 5.1, supra.

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ground that did not have a statutory counterpart in INA § 212(a) (the inadmissibility grounds), from § 212(c) eligibility. See § 5.9 below. 25 Matter of Blake applied both to non-controlled substance aggravated felonies, such as sexual abuse of a minor, 26 and to firearms offenses, 27 crimes of violence, and crimes relating to fraud and misuse of visas, permits, or other entry documents, even if these offenses also triggered another ground of inadmissibility, such as moral turpitude crimes. In other words, the fact that there was a ground of inadmissibility that a crime might fit into was not enough; rather, the deportation ground actually charged had to have a very similar statutory counterpart in § 212 of the Act. Matter of Blake, supra, at 726, 729. The BIA relied heavily on both prior case law and DHS regulations 28 purporting to implement the St. Cyr case in making this decision.

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Ironically, Matter of Blake was overturned in the Second Circuit, where it first arose. Blake v. Carbone, 489 F.3d 88 (2nd Cir. 2007). In Blake v. Carbone, the Second Circuit held that “If the offense that renders a lawful permanent resident deportable would render a similarly situated lawful permanent resident excludable, the deportable lawful permanent resident is eligible for a waiver of deportation.” Id. The court found that to do otherwise would violate the U.S. Constitution’s Equal Protection Clause. However, all other circuits to have considered the issue specifically declined to follow the Second Circuit’s reasoning in Blake v. Carbone or followed some form of the statutory counterpart rule. B.

The Holding in Judulang v. Holder

On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, 565 U.S. 42, 132 S.Ct. 476 (2011), in which it expressly rejected the BIA’s statutory counterpart rule. The Court held that the rule was “arbitrary and capricious” under the Administrative Procedure Act because it was “unmoored from the purposes and concerns of the immigration law.” Id. 132 S.Ct. at 490. The petitioner in Judulang, Joel Judulang, was a native of the Philippines who had lived in the United States as a lawful permanent resident since 1974, when he was 8 years old. In 1988, after being involved in a fight during which an individual died, Judulang pleaded guilty to voluntary manslaughter. He received a 6–year suspended sentence and was released on probation immediately after his plea. In 2005, Judulang pleaded guilty to another crime, this time involving a theft offense. DHS placed him in removal proceedings and charged Judulang as deportable for having been convicted of an “aggravated felony” involving “a crime of violence,” based on his old manslaughter conviction. See INA §§ 101(a)(43)(F), 237(a)(2)(A)(iii). The immigration judge ordered Judulang’s removal, and the BIA affirmed. As part of its decision, the BIA considered whether Judulang could apply for § 212(c) relief. It held that he could not do so because the “crime of violence” aggravated felony deportation ground is not comparable to any exclusion ground, including the one for crimes involving moral turpitude. The Ninth Circuit denied Judulang’s 25

8 CFR 1212.3(f)(5) has been superseded by the BIA’s decision in Matter of Abdelghany. This was the crime at issue in Matter of Blake. 27 See Matter of Esposito, 21 I&N Dec. 1 (BIA 1995), and Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992) (cited in Matter of Blake). 28 Specifically, it relied on 8 CFR § 1212.3(f)(5). 26

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petition for review in reliance on circuit precedent upholding the BIA’s statutory counterpart, or “comparable grounds” rule. The Supreme Court reversed, reasoning: The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported. It instead distinguishes among aliens— decides who should be eligible for discretionary relief and who should not—solely by comparing the metes and bounds of diverse statutory categories into which an alien falls. The result[s] … have no connection to the goals of the deportation process or the rational operation of the immigration laws. Judge Learned Hand wrote in another early immigration case that deportation decisions cannot be made a ‘sport of chance.’ [citations omitted]. That is what the comparable-grounds rule brings about, and that is what the APA’s ‘arbitrary and capricious’ standard is designed to thwart. Id. at 487. The Court concluded: We must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case. The BIA’s comparable-grounds rule is unmoored from the purposes and concerns of the immigration laws. It allows an irrelevant comparison between statutory provisions to govern a matter of the utmost importance—whether lawful resident aliens with longstanding ties to this country may stay here. Id. at 490. C.

BIA’s Decision in Matter of Abdelghany, Clarifying Limited Grounds for Statutory Ineligibility for 212(c) Relief Post-Judulang

In line with the holding in Judulang, the BIA has now rejected the statutory counterpart rule announced by Matter of Blake and Matter of Brieva-Perez. See Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014). The Board clarified that a lawful permanent resident who has accrued seven (7) consecutive years of lawful unrelinquished domicile in the United States and who is removable or deportable by virtue of a plea or conviction entered before April 24, 1996, is eligible to apply for 212(c) relief unless: (1) the applicant is subject to the grounds of inadmissibility under INA §§ 212(a)(3)(A), (B), (C), or (E), or (10)(C) (security, terrorism, foreign policy, Nazism, and international child abduction grounds); or (2) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996. For those who are removable or deportable by virtue of a plea or conviction entered between April 24, 1996, and April 1, 1997, the BIA clarified that they are eligible for 212(c) relief unless:

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(1) the applicant’s removal or deportation proceedings commenced on or after April 24, 1996, and the conviction renders the applicant removable or deportable under one or more of the deportability grounds enumerated in section 440(d) of AEDPA (aggravated felonies and drug convictions); or

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(2) the applicant is subject to the grounds of inadmissibility under sections 212(a)(3)(A), (B), (C), or (E), or (10)(C) of the Act (security, terrorism, foreign policy, Nazism, and international child abduction grounds); or

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(3) the applicant has served an aggregate term of imprisonment of at least 5 years as a result of one or more aggravated felony convictions entered between November 29, 1990, and April 24, 1996. Matter of Abdelghany, 26 I&N Dec. at 272. § 5.4

Adjustment of Status and § 212(c)

An applicant for adjustment of status is subject to the grounds of inadmissibility. INA § 245(a). This fact provided an avenue of relief under § 212(c) for LPRs who were deportable under a deportation ground that did not have an exact counterpart in the inadmissibility grounds, but who were eligible to re-adjust status, for example, through a U.S. citizen spouse. Matter of Azurin, 23 I&N Dec. 695 (BIA 2005); Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993), reaffirmed. While after Judulang and Abdelghany, it will be rare that an Azurin/Gabryelsky-type adjustment of status application would need to be filed in conjunction with a 212(c) application, it is still a strategy that may help some people. For example, in a situation where an individual has a controlled substance conviction that occurred prior to April 24, 1996, and a deportable CIMT conviction that occurred post-April 1, 1997, she may qualify for re-adjustment with a 212(h) waiver. But because the 212(h) waiver cannot waive the controlled substance conviction (unless it is a single simple possession offense of 30 grams or less of marijuana), the individual could qualify for a 212(c) waiver of the old controlled substance conviction, along with re-adjustment and 212(h) waiver to address the CIMT conviction. While after Judulang and Abdelghany it will be rare that an Azurin/Gabryelsky-type adjustment of status application would need to be filed in conjunction with a 212(c) application, it is still a strategy that may help some people. In the Second Circuit, Gabryelsky was applied to someone who was not yet eligible for adjustment of status at the time of his initial hearing because a visa was not available. Drax v. Reno, 338 F.3d 98 (2nd Cir. 2003). The court said the immigration judge committed error by denying the respondent a continuance until he became eligible for adjustment. Therefore, practitioners should consider trying to preserve clients’ status by arguing that someone who will soon become eligible for adjustment of status should either have his case administratively closed 29 or be granted a continuance until he becomes eligible, 30 so that the § 212(c) and the adjustment applications can be considered together. However, you are unlikely

29

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Administrative closure often requires the consent of both parties, so unless ICE is willing to consent to administrative closure, a continuance motion may be the best strategy. See Matter of Gutierrez, 21 I&N Dec. 479, 480 (BIA 1996). 30 For example, when the priority date becomes current, or when an LPR spouse naturalizes.

to prevail in this argument if your client unreasonably delays his application for adjustment of status. See Vargas-Hernandez v. Gonzales, 497 F.3d 919 (9th Cir. 2007). 31 § 5.5

Section 212(c) Eligibility for Those Convicted by Jury Trial

The Supreme Court’s decision in INS v. St. Cyr only extended § 212(c) to those whose preAEDPA/IIRIRA convictions were entered into via a plea agreement, reasoning that those who entered pleas relied on the existence of § 212(c) when they gave up their right to a jury trial as part of their plea bargains. A showing of actual reliance on the availability of § 212(c) is not required under INS v. St. Cyr. Those who were convicted at trial were not protected under St. Cyr. Because the Supreme Court’s rationale in St. Cyr was that those who entered into plea bargains had given up their right to a trial in reliance on the availability of § 212(c), many federal circuit courts had held that those who were convicted by trial were not eligible for § 212(c), regardless of when their convictions were entered. See Dias v. INS, 311 F.3d 456 (1st Cir. 2002), Rankine v. Reno, 319 F.3d 93 (2nd Cir. 2003), Mbea v. Gonzales, 482 F.3d 276 (4th Cir. 2007), Kellerman v. Holder, 592 F.3d 700 (6th Cir. 2010), Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. 2004), and Alexandre v. United States Att’y Gen., 452 F.3d 1204 (11th Cir. 2006). However, a number of circuits found convictions pursuant to trial did not disqualify applicants from § 212(c) relief. See Lovan v. Holder, 574 F.3d 990, 993−94 (8th Cir. 2009); Hem v. Maurer, 458 F.3d 1185, 1199−1200 (10th Cir. 2006); Ponnapula v. Ashcroft, 373 F.3d 480, 494−96 (3rd Cir. 2004). The Third Circuit in Ponnapula concluded that the main focus of the retroactivity analysis should not be “actual reliance,” but whether a statute attaches new legal consequences to past events. Reliance instead is was simply one element to consider in ascertaining whether a “new disability” or new legal consequence exists. See also Atkinson v. Att’y Gen. of U.S., 479 F.3d 222, 227−29 (3rd Cir. 2007); see also Olatunji v. Ashcroft, 387 F.3d 383, 388−95 (4th Cir. 2004) Subsequently, the U.S. Supreme Court decided Vartelas v. Holder, 132 S.Ct. 1479 (2012), in which the Court cited Olatunji and Ponnapula with approval and unequivocally stated that “the presumption against retroactive application of statutes does not require a showing of detrimental reliance.” Vartelas at 1490-91. The Vartelas decision related to a different amendment to the INA, but the BIA then appropriately applied it to § 212(c) relief in Matter of Abdelghany, 26 I&N Dec. 254, 268 (BIA 2014). The Board stated that it was “convinced that Supreme Court and emerging circuit court precedent has superseded the regulatory prohibition against granting section 212(c) relief under St. Cyr to aliens convicted after trial.” 32 The Board instructed

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In Vargas-Hernandez v. Gonzales, the Ninth Circuit found that the immigration judge did not abuse her discretion in denying petitioner’s motion for a continuance so that he could apply for adjustment of status based on his marriage to a United States citizen because he waited until his fifth hearing, which was seven years after his marriage and five years after his wife had naturalized, to attempt to adjust his status, and he provided no explanation for the delay in filing the motion. 32 Matter of Abdelghany, 26 I&N Dec. 254, 268 (BIA 2014). Additional circuit courts that prior to Abdelghany and post-Vartelas had held § 212(c) relief applied to convictions obtained through trials include: Cardenas-Delgado v. Holder, 720 F.3d 1111, 1117−21 (9th Cir. 2013); Carranza-De Salinas v. Holder, 700 F.3d 768, 773−75 (5th Cir. 2012). The BIA noted that “The Ninth Circuit has stated that after Vartelas it is not necessary to prove any type of reliance in order to demonstrate that a civil statute’s

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immigration judges to ”treat deportable lawful permanent residents convicted after trial no differently for purposes of section 212(c) eligibility than deportable lawful permanent residents convicted by means of plea agreements.” Id. § 5.6

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When the Seven Years of Lawful Unrelinquished Domicile Begins and Ends

A permanent resident who entered a plea of guilty at a time when he or she had not completed seven years of unrelinquished domicile in the U.S. is eligible to apply for § 212(c) relief, as long as the person has the seven years when he or she applies for § 212(c) (or, in the case of a motion to reopen a prior order of deportation or removal, had the seven years at time of the final administrative decision). See 8 CFR § 1003.44(b)(3); see also Alvarez-Hernandez v. Acosta, 401 F.3d 327, 329-332 (5th Cir. 2005). This is because, unlike LPR cancellation of removal under INA 240(A)(a), there is no stop time rule in § 212(c). Under § 212(c) “lawful unrelinquished domicile” continues after the commission of an offense, and also continues after the person has been placed in deportation or removal proceedings by issuance of an Order to Show Cause or Notice to Appear, and throughout the removal proceedings up to the level of the Board of Immigration Appeals if an appeal has been taken. Jaramillo v. INS, 1 F.3d 1149 (11th Cir. 1993). In the Ninth Circuit, if the person had contested deportability, lawful domicile would continue at least throughout the appeal to the federal court. Wall v. INS, 722 F.2d 1442, 1444 (9th Cir. 1984). Additionally, the Ninth Circuit has held that where the respondent does not appeal the BIA’s final administrative order of removal, lawful domicile terminates only when the removal order is executed, rather than the date of the BIA’s decision. Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016). This holds true even for an individual who unlawfully re-enters the United States after the removal order is executed and who then seeks to sua sponte reopen his proceedings based on a claim that he was previously eligible for 212(c) relief. Id. at 590. In Bonilla, the court further confirmed that if the BIA grants a motion to reopen in such a circumstance, the applicant seeking 212(c) relief “would be restored to the lawful permanent resident status he held then, unless and until the new proceedings close without granting relief.” Id. This is a sensible rule, because in practice, before the elimination of § 212(c), permanent residents with less than seven years often did fashion plea bargains to preserve eligibility for § 212(c), reasonably relying on well-established law that the seven years would continue to accrue after the conviction and through the deportation hearing and any appeals.33 Example: Juan pled guilty to moral turpitude offenses in 1994 and 1995, three years after he had first been admitted to the U.S. as a lawful permanent resident in 1991. He is not eligible for cancellation of removal under INA § 240A(a), because when he became deportable or inadmissible for moral turpitude crimes, the “clock stopped” on his accrual of seven years residence since any admission. 34 But he is eligible for § 212(c) relief under

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application is impermissibly retroactive. Cardenas-Delgado v. Holder, 720 F.3d at 1119.” Abdelghany at 268. 33 See, e.g., Matter of Lok, 18 I&N Dec. 101(BIA 1981), aff’d 681 F.2d 107 (2nd Cir. 1982); Wall v. INS, 722 F.2d 1442 (9th Cir. 1984), United States v. Jimenez-Marmelejo, 104 F.3d 1083 (9th Cir. 1996). 34 See Chapter 4.

St. Cyr. Although he did not have seven years of lawful unrelinquished domicile at the time he pled, he has had it since 1991. In Perez-Enriquez v. Gonzales, 35 the Ninth Circuit upheld § 212(c) eligibility for a person who was not yet a permanent resident at time of plea, where the conviction did not make him ineligible to receive permanent residency. In that case, the Ninth Circuit held that a lawful temporary resident under the SAW program did not have to be admissible at the time of adjustment to permanent residency. The petitioner had become a temporary resident in 1988, pled guilty to possession for sale of a controlled substance in 1989, and automatically adjusted to lawful permanent residency in 1990. The court held that he was deportable, but eligible to apply for § 212(c) relief based on the plea that occurred before he became a permanent resident.36 The Ninth Circuit has subsequently affirmed this holding in another, similar case. Gallegos-Vasquez v. Holder, 636 F.3d 1181 (9th Cir. 2011). § 5.7 A.

How Dates of Conviction Affect § 212(c) Eligibility

Aggravated Felony Convictions Entered into before November 18, 1988

The aggravated felony ground of deportability came into effect on November 18, 1988. Therefore, even though the aggravated felony definition created by IIRIRA is retroactive, convictions for what are now deemed aggravated felonies are not deportable offenses if they were entered into before November 18, 1988. Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010). Therefore, in the rare instance where your client was convicted of what is now defined as an aggravated felony in INA § 101(a)(43) before November 18, 1988, he will not be deportable under the aggravated felony ground, at least in the Ninth Circuit, though he may be deportable under some other ground that would require relief under § 212(c). B.

Convictions Entered into before November 29, 1990

As noted in § 5.1 above, § 212(c) was modified by IMMACT 90, to eliminate eligibility for those who have been convicted of one or more aggravated felonies and have served a term of imprisonment of at least five years for that felony or felonies. IMMACT 90 went into effect on November 29, 1990. Under the Supreme Court’s decision in St. Cyr, therefore, people with aggravated felonies who have served a total of five years of more for a felony or felonies are still eligible for § 212(c) if their convictions were entered into before November 29, 1990. See also Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014). C.

INA § 212(c) under AEDPA: Convictions between April 24, 1996 and April 1, 1997

The amendments to § 212(c) made by the AEDPA37 were in effect for less than a year, from April 24, 1996 to April 1, 1997, when IIRIRA took effect. Unfortunately, for those individuals who were convicted of offenses during this brief period of time, the AEDPA is not good news. 35

463 F.3d 1007 (9th Cir. 2006) (en banc). The Special Agricultural Worker (SAW) program was one of the legalization programs enacted in 1986 by the Immigration Reform and Control Act of 1986. 37 The relevant part of AEDPA discussed in this manual is § 440(d). Other parts of AEDPA have nothing to do with immigration law.

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As noted in § 5.1, supra, the AEDPA severely restricted § 212(c), making it unavailable to the people who were deportable for the following offenses: • • • • • •

Conviction for any aggravated felony; Conviction for a controlled substance violation; Drug addiction or abuse (no conviction necessary) Conviction for a firearms offense Espionage and sabotage offenses as defined in former INA § 241(a)(2)(D); Any two crimes of moral turpitude for which the sentence imposed (for each) is at least a year.

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Although AEDPA referred to “deportable” individuals, the BIA clarified in Matter of Abdelghany, 26 I&N Dec. 254 (BIA 2014), that the prohibitions against 212(c) relief applies to any “removable” individuals enumerated by AEDPA. Therefore, whether your client is inadmissible or deportable for a crime listed under AEDPA, he or she would be ineligible for a 212(c) waiver if his or her relevant conviction occurred between April 24, 1996 to April 1, 1997. 1. The bar for aggravated felonies and AEDPA One of the key issues when representing those convicted of crimes during AEDPA is that the definition of an aggravated felony in effect when AEDPA was enacted no longer exists. The definition of an aggravated felony was significantly expanded by IIRIRA. For example, before IIRIRA a conviction of a crime of violence, theft, etc. was an aggravated felony only if a fiveyear sentence was imposed, while since IIRIRA it requires only a one-year sentence. Similarly, a conviction for fraud, deceit, or money laundering was an aggravated felony pre-IIRIRA only if the loss equaled $100,000, while since IIRIRA the loss must only be more than $10,000. In addition, pre-IIRIRA there was no “sexual abuse of a minor” aggravated felony. One of the worst things about this expanded definition was that it applies retroactively to convictions entered before, on or after September 30, 1996. INA § 101(a)(43). Therefore, it significantly expanded the group of permanent residents who would be barred from § 212(c) relief during the brief time that AEDPA was in effect. Courts have not been very sympathetic to those who plead to crimes under AEDPA that retroactively became aggravated felonies, and have denied them eligibility for § 212(c) relief, reasoning that they were on notice that if their offenses ever became aggravated felonies, they would be ineligible for § 212(c). See Cruz-Bucheli v. Gonzales, 463 F.3d 105 (1st Cir. 2006), Khan v. Ashcroft, 352 F.3d 521 (2nd Cir. 2003), Restrepo v. McElroy, 369 F.3d 627 (2nd Cir. 2004), Morgan v. Keisler, 507 F.3d 1053 (6th Cir. 2007), United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002), Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. 2005), and Oguejiofor v. Att’y Gen., 277 F.3d 1305 (11th Cir. 2002). In one case, however, the Ninth Circuit did find an equal protection violation where the crime in question was not only not an aggravated felony at the time of the plea, but was not even a deportable offense at that time. Cordes v. Gonzales, 421 F.3d 889 (9th Cir. 2005). This decision was subsequently vacated in Cordes v. Mukasey, 517 F.3d 1094 (9th Cir. 2008) because the BIA

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elected to reopen the case sua sponte, 38 and remand it to the immigration judge, thus stripping the Court of Appeals of jurisdiction by rendering the controversy between the parties moot. Nevertheless, the rationale of the original decision in this case is worth discussing, because you may be able to use it in other, similar cases. In the original Cordes v. Gonzales decision, the court did not find that equal protection was violated because IIRIRA’s expanded definition of aggravated felonies was retroactive. The court noted that because the petitioner could not say she relied on the availability of § 212(c) when she plead guilty, since she wasn’t even deportable at that time, her situation was not encompassed by the Supreme Court’s decision in St. Cyr. Yet, if she wasn’t found eligible for § 212(c), she would be worse off than those who were deportable under prior law since they could claim reliance on the availability of § 212(c) at the time they plead guilty, and were thus eligible for § 212(c) under St. Cyr even though their crimes were much more serious than hers. This result would clearly be unfair to the petitioner and had no “rational basis,” so for that reason her equal protection claim was upheld. As the court stated: The disparate treatment of Cordes and those permanent residents who are entitled to section 212(c) relief under St. Cyr lacks a rational basis. Because Cordes does not fit within the St. Cyr exception, the law treats her differently than those permanent resident aliens who formed settled expectations as to the availability of section 212(c) relief because they committed severe, deportable offenses. Had Cordes committed a more severe crime—one that would have rendered her deportable—she would have been eligible for such relief and been able to preserve the relief even though her crime was later reclassified as an aggravated felony. Put differently, those permanent residents who committed more serious crimes than Cordes obtain the section 212(c) bulwark only because they had the ironic fortune of facing the prospect of deportation at the time that they entered their guilty pleas. Cordes v. Gonzales, above. Thus, if you have a client whose conviction pre-dated IIRIRA, and it was not a deportable offense at that time, and then became an aggravated felony afterwards, you should use the rationale of this case to argue that your client is eligible for § 212(c). Although the decision in Cordes v. Gonzales has been vacated and is no longer a precedent decision, in the event that you have a client in a similar situation, the Ninth Circuit’s logic in this case may help you. § 5.8 A.

Section 212(c) Eligibility for People Who Were Ordered Deported before St. Cyr Was Decided

Motions to Reopen

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The DHS regulations purporting to implement the Supreme Court’s decision in St. Cyr mandated a deadline of April 26, 2005 for filing motions to reopen for those who were erroneously denied relief before St. Cyr was decided. See 8 CFR § 1003.44(b). 39 This deadline has been upheld by

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Sua sponte means that the Board reopened on its own motion. The DHS regulations are discussed in Subsection H below.

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the Seventh and Ninth Circuits. Johnson v. Gonzales, 478 F.3d 795 (7th Cir. 2007); Luna v. Holder, 659 F.3d 753 (9th Cir. 2011). Unfortunately, these regulations do not permit those who were denied § 212(c) relief and who were deported before St. Cyr was decided to reopen their cases. Many courts have agreed with this unfair result. See 8 CFR § 1003.44(k), Muriel v. Gonzales, 489 F.3d 438 (1st Cir. 2007), Mansour v. Gonzales, 470 F.3d 1194 (6th Cir. 2007), Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1041) (9th Cir. 2007) (finding that the regulation does not violate equal protection or due process), and Patel v. United States Att’y Gen., 334 F.3d 1259 (11th Cir. 2003). This means that only those who were erroneously denied relief but were not yet deported could move to reopen their cases.

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It is worth noting that while DHS and EOIR regulations generally prohibit post-departure motions to reopen, 40 virtually every circuit court 41 has invalidated the regulations barring statutory motions to reopen when the person is outside the U.S. 42 While these regulations are not the same as 8 CFR § 1003.44(k), specifically barring post-departure motions to reopen for § 212(c) relief, these cases may provide a means for practitioners to challenge 8 CFR § 1003.44(k) as well. In view of these decisions, practitioners should continue to argue that clients who fit within St. Cyr and its progeny and were deported before St. Cyr changed the law should be able to reopen their cases to apply for relief, notwithstanding the deadline for motions to reopen and 8 CFR § 1003.44(k), especially in particularly compelling circumstances, such as where your client was unrepresented, and/or there was no knowing and intelligent waiver of the right to appeal. B.

Challenging the Deportation Order in Reinstatement of Removal Proceedings

Someone who returns illegally after deportation is going to be subject to reinstatement of removal under INA § 241(a)(5), and that will be very difficult to challenge. For example, the Fourth Circuit has held that a noncitizen had no due process or liberty interest in discretionary relief, and therefore could not challenge a prior deportation order in which he was deemed ineligible for § 212(c). Smith v. Ashcroft, 295 F.3d 425, 429-431 (4th Cir. 2002). In that case, the noncitizen’s § 212(c) application was adjudicated before St. Cyr was decided and he therefore was arguing that the prior deportation order was invalid. However, because he was subject to reinstatement of removal, the court found that he had no right to challenge the underlying order in a reinstatement appeal. Numerous other circuits have also held that an individual does not have a due process right to be informed of discretionary relief. Bonhometre v. Gonzales, 414 F.3d 442, 448 n. 9 (3rd Cir. 2005); United States v. Lopez–Ortiz, 313 F.3d 225, 231 (5th Cir. 2002); Ashki v. INS, 233

40

See 8 CFR §§ 1003.2(d) and 1003.23(b)(1). Santana v. Holder, 731 F.3d 50, 61 (1st Cir. 2013); Luna v. Holder, 637 F.3d 85 (2nd Cir. 2011); Prestol Espinal v. Atty. Gen., 653 F.3d 213, 218 (3rd Cir. 2011); William v. Gonzales, 499 F.3d 329, 334 (4th Cir. 2007); Garcia–Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012); Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011); Marin–Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010); Toor v. Lynch, 789 F.3d 1055, 1060 (9th Cir. 2015); Contreras–Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc); Lin v. U.S. Atty. Gen., 681 F.3d 1236, 1241 (11th Cir. 2012. 42 Both of these regulations say that no motion to reopen shall be considered for an individual in proceedings after departure from the U.S., and that a motion to reopen filed before departure is deemed withdrawn upon the alien’s departure from the U.S. 41

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F.3d 913, 921 (6th Cir. 2000); United States v. Santiago–Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006); Escudero–Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001); United States v. Aguirre– Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc). Both the Third and Fifth Circuits have held that in a reinstatement proceeding, courts have jurisdiction to review the validity of the underlying order, but that a gross violation of justice must be shown before relief will be granted. Debeato v. Attorney General of United States, 505 F.3d 231 (3rd Cir. 2007) and Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006). In Debeato, the Third Circuit found that the BIA’s pre-St. Cyr decision finding him ineligible for § 212(c) because he had an aggravated felony did not constitute a gross miscarriage of justice. Debeato, supra, at 236-237. In Ramirez-Molina, the Fifth Circuit held that there was no gross miscarriage of justice because the petitioner had not contested his deportability at his underlying hearing. Ramirez-Molina, above, at 514. The Ninth Circuit has held that noncitizens cannot attack the validity of the prior order of removal in the context of a reinstatement of removal proceeding, even if the underlying order violated due process or was otherwise invalid. Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (en banc). The rationale in Morales-Izquierdo was that deported noncitizens can challenge the validity of their deportation orders from abroad, and should therefore not be given an advantage by being permitted to challenge those orders in a reinstatement proceeding, after having returned to the U.S. illegally. The only exception to this general rule, in the Ninth Circuit as well as some other circuits, is where the noncitizen had applied for some form of discretionary relief before the IIRIRA effective date of April 1, 1997. See Ixcot v. Holder, 646 F.3d 1202 (9th Cir. 2011) and cases cited therein. 43 The Sixth Circuit has held that you can challenge the validity of a prior order of removal in an appeal of a reinstatement order because the courts have the power to review constitutional questions and questions of law. See Villegas de Paz v. Holder, 640 F.3d 650 (6th Cir. 2010). However, in that case, the court rejected petitioner’s due process challenge to the underlying order because she could not show prejudice. What You Can Do: Advocates will continue to search for ways to correct the injustices caused by the wrongful deportation of thousands of permanent residents who were illegally denied the opportunity to apply for § 212(c) relief. Groups such as the American Immigration Council (see www.americanimmigrationcouncil.org) and the National Immigration Project (see www.nationalimmigrationproject.org) provide updates and information.

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Notably, the Ninth Circuit has also held that when an alien who had legal status collaterally attacks a removal order based on a subsequent substantive interpretation of the law that would have insulated the alien from removability, the court must apply the post-removal precedent and apply it retroactively to determine whether or not the alien was properly removed. United States v. Aguilera-Rios, 769 F.3d 626, 631-32 (9th Cir. 2014); see also United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). This is because decisions of statutory interpretation are fully retroactive as they do not change the law; instead the decisions explain what the law has always meant. Id. However, the “retroactive” application of postremoval precedent applies only to the determination of removability, as opposed to the availability of relief. Id.

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§ 5.9

DHS Regulations Governing § 212(c) Applications in the Wake of St. Cyr

In 2004, DHS issued regulations to implement the Supreme Court decision in St. Cyr. This section will discuss what the regulations cover, when they are helpful and should be used, and when they seem to depart from case law and should therefore be challenged.

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The regulations governing motions to reopen for § 212(c) after St. Cyr are found at 8 CFR § 1003.44 and are reproduced as Appendix 5-B of this chapter. The regulations governing eligibility for § 212(c) in the wake of St. Cyr are found at 8 CFR § 1212.3 and are reproduced as Appendix 5-C of this chapter. A.

Deadline for Motions to Reopen

As we saw in § 5.8 above, the deadline for filing motions to reopen for § 212(c) relief under the regulations was April 26, 2005 [8 CFR § 1003.44(h)], and at least two courts 44 have upheld this deadline. We believe this deadline can be challenged, especially where you can show that there was a due process violation in the underlying proceedings. See Landon v. Plasencia, 459 U.S. 21(1982) and Chapter 1. Perhaps your client was not represented by counsel, or was wrongly advised by an immigration judge that he was ineligible for any relief and it would be pointless to obtain counsel or appeal the decision, or was pressured into giving up his right to a hearing by an immigration officer who informed him that he should not bother with a hearing because he was ineligible for any relief from deportation. Perhaps your client did not knowingly and intelligently concede the allegations in the Order to Show Cause or Notice to Appear, or did not knowingly waive his right to a hearing or his right to counsel, or was a victim of ineffective assistance of counsel. 45 Many courts have held that the deadlines for motions to reopen and for appeals to the BIA are not jurisdictional deadlines, meaning that they can be waived in appropriate circumstances.46 These cases provide an opportunity for practitioners to challenge the application of the April 26, 2005 deadline for § 212(c) motions to reopen, at least in some cases. A full discussion of due process is beyond the scope of this manual, but we raise this issue here because it’s important not to automatically give up on filing a motion to reopen for § 212(c) relief just because the regulations have imposed an arbitrary deadline on such motions. Moreover, 8 CFR § 1212.3 permits the filing of an application for § 212(c) relief in the course of removal, deportation or exclusion proceedings at any time, even after departure from the United States. See 8 CFR § 1212.3(b). One can argue that this regulation is inconsistent with the 44

Johnson v. Gonzales, supra (7th Cir. 2007); Luna v. Holder, 659 F.3d 753 (9th Cir. 2011). See INA §§ 240(b)(4)(A) & 292, 8 CFR §§ 292, 1240.3, &1292, Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074 (9th Cir. 2007) (denial of continuance to obtain counsel), Gjeci v. Gonzales 476 F.3d 803 (9th Cir. 2007) (same), Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990), Olvera v. INS, 504 F.2d 1372 (5th Cir. 1974) (right to counsel). 46 See Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) [motion to reopen deadline is not jurisdictional]; Irigoyen-Briones v. Holder, 644 F.3d 943 (9th Cir. 2011), see also Khan v. U.S. Dept. of Justice, 494 F.3d 255 (2nd Cir. 2007) [holding that the deadline for filing appeals to the BIA is not jurisdictional]. But see Liadov v. Mukasey, 518 F.3d 1003 (8th Cir. 2008) [holding the deadline for filing appeals to the BIA is mandatory]. 45

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prohibition against filing a motion to reopen after April 26, 2005, in 8 CFR § 1003.44(h), especially where the applicant was wrongfully prohibited from applying for relief in the underlying proceedings. In addition, since motions to reopen for § 212(c) relief are exempt from the time and numerical bars for other motions to reopen under 8 CFR § 1003.44(g), the April 26, 2005 deadline seems arbitrary, especially when former permanent residents who were wrongfully deported may not discover that they might be able to challenge their deportation orders for many years. See the following paragraph, in addition to § 5.8 above. B.

Prohibition against Motions to Reopen for Deportees

The regulations provide that motions to reopen for § 212(c) relief are not available to the following people: 1. Aliens who have departed the United States and are currently outside the United States; 2. Aliens issued a final order of deportation or removal who then illegally returned to the United States; or 3. Aliens who have not been admitted or paroled. 8 CFR § 1003.44(k). However, as noted above, 8 CFR § 1212.3(b) permits filing an application for § 212(c) relief even after departure from the U.S., it seems that this prohibition is subject to challenge, although so far courts have not been very sympathetic to this argument. See § 5.8 above. C.

Effect of Previous Motions to Reopen

The regulations provide that someone who has filed a motion to reopen or reconsider that is still pending before an immigration judge or the Board, other than a motion for § 212(c) relief, must file a separate special motion to seek § 212(c) relief, and must also specify any other motions currently pending before an immigration judge or the Board. 8 CFR § 1003.44(g). This regulation also permits those who already filed motions to reopen based on INS v. St. Cyr to supplement the previous motion if it is still pending. 8 CFR § 1003.44(g). D.

Effect of Previous Denials of § 212(c) Relief

The regulations prohibit a special motion to reopen for § 212(c) relief if a previous application for § 212(c) relief was denied on discretionary grounds. 8 CFR § 1003.44(d). E.

Types of Pleas Considered and Controlling Date

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Under 8 CFR §§ 1003.44(a) and 1212.3(h), former permanent residents who were convicted by a plea of guilty or nolo contendere before April 1, 1997 are eligible for § 212(c), but those convicted after trial are not. However, as we saw in § 5.5, the BIA’s decision in Matter of Abdelghany (supra) has superseded these portions of the regulations limiting § 212(c) relief to individuals convicted pursuant to plea agreements. The regulations also specify that the date the plea agreement was made, and not the date the conviction was entered into the record, is controlling. 8 CFR § 1212.3(h). In Abdelghany, the

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Board clarified that this portion of the regulations remains valid with respect to convictions resulting from plea agreements. 26 I&N Dec. 269 n. 15. F.

Lawful Unrelinquished Domicile

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The regulations permit a motion to reopen for § 212(c) if the former LPR had seven years consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal (i.e., IJ or BIA order). 8 CFR § 1003.44(b)(3). However, as we noted in § 5.6, in the Ninth Circuit lawful domicile continues with the appeal to the court of appeals if the petitioner had contested deportability. See Wall v. INS, and § 5.6, above. Therefore, this regulation can be challenged, not only in the Ninth Circuit, but also in other jurisdictions where the courts have not ruled on this issue. The regulations also recognize that lawful domicile can include lawful temporary residence under INA §§ 245A or 210 (legalization provisions). 8 CFR § 1212.3(f)(2). However, it may be possible to challenge this limitation and successfully argue that lawful domicile encompasses other kinds of status, such as family unity and asylum or refugee status. See § 5.1, above. G.

Aggravated Felony Convictions

Under 8 CFR § 1212.3(f)(4), people with aggravated felony convictions before November 29, 1990, when IMMACT 90 went into effect, are recognized as eligible for § 212(c) even if they served five years or more for those aggravated felonies. The Board agreed with this portion of the regulations in Matter of Abdelghany. Unfortunately, the regulations prohibit permanent residents with aggravated felony convictions whose pleas were entered into during the AEDPA’s brief duration from eligibility under § 212(c), even though the definition of an aggravated felony during that time period was much less expansive than it became (retroactively) after IIRIRA came into effect. See the discussion of this issue in § 5.7 above. H.

Superseded Statutory Counterpart Rule

The regulations bar eligibility for § 212(c) relief for those who are deportable under former § 241 of the INA or removable under INA § 237 of the Act on a ground which does not have a statutory counterpart in § 212 of the Act. 8 CFR § 1003.44. As discussed above, in § 5.3, this portion of the regulations has been superseded by the BIA’s decision in Matter of Abdelghany. See § 5.3. I.

Prohibition for Those Inadmissible under Security and Terrorism Grounds

Under 8 CFR § 1003.44(f)(3), permanent residents who are “subject to inadmissibility or exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or (10)(C) of section 212(a) of the Act” are ineligible for § 212(c). These are the security and terrorism [INA § 212(a)(3)] and international child abduction [INA § 212(a)(10)] grounds of inadmissibility. These prohibitions are virtually identical to the provisions of § 212(c) that were in effect in 1994, which had also barred those found inadmissible under the security and terrorist grounds in former INA § 212(a)(3) and the international child abduction ground in former INA § 212(9)(C) from § 212(c) eligibility.

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PART THREE: DISCRETION IN § 212(C) CASES § 5.10 Proving That Your Client Merits a Favorable Exercise of Discretion Once you have proven that your client is still eligible for § 212(c) under INS v. St. Cyr and its progeny, and that he meets all of the other eligibility requirements, the case has really just begun. Now you must convince the immigration judge that your client should be granted § 212(c) in the exercise of discretion. This can be an uphill battle, since many of the individuals for whom § 212(c) is the only available form of relief will have aggravated felony convictions. As indicated in § 5.1 of this section, Matter of Marin, 47 discussed above, set the standard for adjudicating § 212(c) cases. To reiterate, in Matter of Marin the BIA held that the exercise of discretion in a particular case necessarily requires consideration of all the facts and circumstances involved, and that there must be a balancing of the social and humane considerations presented in an alien’s favor against the adverse factors evidencing his undesirability as a permanent resident. Matter of Marin at 584. Some of the factors to be considered in determining whether or not to grant § 212(c) relief identified in Matter of Marin were: Favorable Considerations: • • • • • • • • •

Family ties within the United States, Residence of long duration in this country (particularly when the inception of residence occurred at a young age), Evidence of hardship to the respondent and his family if deportation occurs, Service in this country’s armed forces, A history of employment, The existence of property or business ties, Evidence of value and service to the community, Proof of genuine rehabilitation if a criminal record exists, and Other evidence attesting to a respondent’s good character.

Adverse Considerations: • • • •

The nature and underlying circumstances of the exclusion or deportation ground at issue, The presence of additional significant violations of this country’s immigration laws, The existence of a criminal record and, if so, its nature, recency, and seriousness, The presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

Matter of Marin, at 584-85. These factors are not exclusive; rather any and all circumstances in the applicant’s life are relevant. Matter of Marin; see also Drobny v. INS, Bastanipour v. INS,48 Matter of D-, 49 and Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995.)

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16 I&N Dec. 581. 947 F.2d 241 (7th Cir. 1991). 49 20 I&N Dec. 915 (BIA 1994). 48

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This standard has also been carried over to LPR cancellation of removal cases. See Chapter 4. For a discussion of the type of evidence you should submit to prove your case, please refer to Chapter 4, § 4.6, and also to Chapter 10. A.

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Unusual or Outstanding Equities

The one major difference in the adjudication of § 212(c) cases and cancellation of removal cases is the requirement in § 212(c) cases that the applicant demonstrate “unusual or outstanding equities” if the crime in question is particularly serious, or if the person has a history of serious criminal misconduct. This requirement was eliminated in LPR cancellation of removal, in part because anyone with a really serious crime is already barred from LPR cancellation by the aggravated felony prohibition. See Matter of Sotelo, 23 I&N Dec. 201 (BIA 2001) see also Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). Even if an alien demonstrates unusual or outstanding equities, the IJ is not compelled to make a favorable exercise of discretion; rather, absent such equities, relief will not be granted in the exercise of discretion. Matter of Buscemi, 50 above; Matter of Marin. However, “a proper determination as to whether an alien has demonstrated unusual or outstanding equities in a section 212(c) application can only be made after a complete review of the favorable factors in his case.” Matter of Edwards, 20 I&N Dec. 191, 199 (BIA 1990), The leading cases on unusual and outstanding equities are Matter of Buscemi, Matter of Edwards, and Matter of Roberts, 51 above. It is useful to take a look at these cases both to determine what the BIA has identified as unusual or outstanding equities and to see whether your client must show unusual or outstanding equities in order to have a chance at being granted relief. We shall also discuss Matter of Arreguin, 52 as an example of a case in which § 212(c) was granted despite the fact that the noncitizen had been convicted of a serious drug offense and was incarcerated at the time of her hearing, and Zheng v. Holder, 53 a decision in which the Ninth Circuit remanded the case to the BIA to consider the evidence of the petitioner’s service and value to the community in evaluating whether he should be granted § 212(c) relief. The Board had denied his application without consideration of that evidence, based on the petitioner’s serious criminal record. B.

Matter of Buscemi

In Matter of Buscemi, the BIA held that the adverse considerations were so serious that a favorable exercise of discretion was not warranted even in the face of unusual or outstanding equities. The applicant’s long term permanent residence (17 years, from the age of nine), close ties to his immediate family (mother and four siblings in the U.S.), history of employment, and difficult upbringing (father abandoned the family) were all deemed to be outstanding equities, but were outweighed by his admitted drug use, and his convictions for attempted sale of heroin and robbery with a firearm, especially since the robbery took place while he was on probation. Although Buscemi had attended drug and training programs in prison, he also had committed 50

19 I&N Dec. 628 (BIA (1988). 20 I&N Dec. 294 (1991). 52 21 I&N Dec. 38 (BIA 1995). 53 Zheng v. Holder, 644 F.3d 829 (9th Cir. 2011). 51

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several infractions while in prison, and had relapsed into drug use after attending one of the drug programs, so his lack of apparent rehabilitation was a factor in the denial of his case. He was also from Italy, and although he did not like it there it was likely he would be able to find employment, and he did have extended family (aunts and uncles) living there. In denying his appeal, the BIA stated: Even considering the outstanding equities which the respondent has been able to establish, we do not find that granting relief is warranted or in the best interests of this country. In reaching this conclusion, we have evaluated the respondent’s equities against the serious adverse factors present in his case and our determination that he has not demonstrated rehabilitation. While his deportation may well involve hardship to himself and certainly much unhappiness for his family, the responsibility for this result rests with the respondent alone. Matter of Buscemi, at 635-636. Note that one of the factors the BIA relied on in denying this case was “the best interests of this country.” Note also that lack of rehabilitation was a key factor. Nevertheless, the fact that Buscemi’s immediate family was in the U.S. (even though he had other, more distant relatives in Italy), and his long-term residence were considered to be outstanding equities. Therefore, any time you have a client who’s been an LPR for many years, especially if he came to the U.S. at a young age, and especially if the majority of his family is in the U.S., you can argue that he has established outstanding equities. If you have a client with a fairly serious criminal record, it may be useful to compare him to Mr. Buscemi, and to distinguish your client from him by showing that your client’s equities equal or exceed those of Mr. Buscemi, that his criminal record is not so severe, and, unlike Mr. Buscemi, your client is genuinely rehabilitated, thus weighing the balance toward a favorable exercise of discretion. C.

Matter of Edwards

In Matter of Edwards, the BIA clarified Matter of Buscemi by holding: A proper determination as to whether an alien has demonstrated unusual or outstanding equities in a section 212(c) application can only be made after a complete review of the favorable factors in his case, and, therefore, the use of the term “threshold test’’ is deemed to be inappropriate in this context, as it might be interpreted to imply that a full examination of an alien’s equities can somehow be pretermitted. Matter of Buscemi, supra, clarified. Matter of Edwards, at 199.

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Therefore, if you have a case in which the immigration judge seems hostile to your client, perhaps because he has an aggravated felony conviction and the immigration judge seems to think that this alone should preclude relief, use Matter of Edwards to demonstrate regardless of the seriousness of the offense involved, the judge is required to fully and completely weigh the favorable factors in the case. If the judge refuses to do so, you have an appealable issue.

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Turning to the facts in Matter of Edwards, the respondent had an extensive criminal record, including drug trafficking to support his admitted drug habit. In denying his application for § 212(c), the BIA stated the following:

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In regard to the exercise of discretion, we consider that the respondent possesses an extensive criminal record … including convictions for burglary and attempted burglary, possession of a controlled substance, possession with intent to distribute a controlled substance, and intentional distribution of a controlled substance. The respondent’s overall 10-year pattern of criminal misconduct, as well as his controlled substance distribution offenses, each independently require that he demonstrate unusual or outstanding equities if he is to have the possibility of receiving a favorable exercise of discretion. In the respondent’s favor we take into account the fact that he has resided in this country for approximately 22 years. We note that he is married to a United States citizen, that he has four United States citizen children, that his mother and siblings reside in this country, and that he apparently has no family remaining in Barbados. We observe that the respondent’s wife declared that he is a good father. We acknowledge that his family will suffer emotional hardship if he is deported to Barbados. We are aware of the special hardship that the respondent’s autistic child may suffer from a separation. In sum, we conclude that these equities cumulatively rise to the level of the unusual or outstanding. In regard to other alleged favorable equities forwarded by the respondent, however, we note that he has neglected to submit any evidence to support his conclusory allegation that he will be unable to find work in Barbados because of his age. In terms of the financial hardship that his family may face due to his deportation, we consider that they received support from the public welfare system before the respondent encountered any difficulties with our immigration laws. He has not shown that their financial situation will be materially exacerbated if he is forced to depart from this country. Turning to the issue of rehabilitation, we find it to be a significant factor in view of the nature and extent of the respondent’s criminal history. Specifically, he has a record of offenses extending from 1977 until 1987, including convictions for controlled substance distribution. He attributed these crimes to his need to support his drug habit. While such a claim may tend to show that the respondent is not an inherently evil person, we still must consider the safety of our society. Regardless of the respondent’s motivation, the community still will suffer the consequences of any future criminal behavior on his part. … Although the respondent appears to have been able to free himself from drugs for various periods of time, we note that he ultimately was unsuccessful in his quest. For example, we consider that while on parole and participating in a treatment program after his most recent period of incarceration, the respondent used controlled substances on at least two occasions, in August and November 1988. Consequently, on the record before us, we determine that he failed in his attempt to rehabilitate himself.

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… Further, we observe that the respondent was able to participate in a treatment program directly prior to his detention by the Service. However, he wasted this opportunity by continuing his use of controlled substances on at least two occasions during this period.

In balancing the various factors in the respondent’s case, we take note of his favorable equities, which we found to be unusual or outstanding. However, when we weigh these equities against the adverse factors of his extensive criminal record, which includes controlled substance distribution offenses, and our lack of confidence as to his rehabilitation, we determine that a favorable exercise of discretion is not warranted. Matter of Edwards, at 197–199 (emphasis added). Obviously, the respondent in Matter of Edwards had a pretty terrible criminal history, as well as a spotty record of employment and support of his family, and a shaky record on rehabilitation. It’s not surprising he was denied relief, despite his 22 years in the U.S., his family ties, and in particular, the fact that his son was autistic. More importantly, however, practitioners should think about what Matter of Edwards stands for and how you would distinguish your client from Mr. Edwards. 1. Matter of Edwards stands for the proposition that unusual or outstanding equities do not compel a favorable exercise of discretion; rather that where a crime or crimes are serious enough, unusual or outstanding equities must be shown for relief to be a possibility. Matter of Edwards at 196. 2. Matter of Edwards also stands for the proposition in evaluating whether unusual or outstanding equities will be required, one must examine the gravity of the offense per se. Matter of Edwards at 195. As in Matter of Buscemi, the BIA also noted the harm to society created by the respondent’s criminal activity. Same, at 198. 3. In Matter of Buscemi, the respondent’s long-term permanent residence and close family ties were found to be outstanding equities. See page 197. 4. In weighing the equities, the BIA considered them cumulatively. Matter of Edwards, at 197. In other words, a person’s equities should not be considered in isolation from one another, but as part of a whole. This analysis is reminiscent of Matter of Recinas, 54 the leading case in non-LPR cancellation of removal under INA § 240A(b)(1). In Matter of Recinas, the BIA held that factors that individually would not amount to exceptional and extremely unusual hardship for non-LPR cancellation eligibility could nonetheless meet that standard if weighed together cumulatively, and that immigration judges are required to weigh these factors cumulatively. Matter of Recinas at 472. Matter of Edwards is analogous to Matter of Recinas. Therefore, if you have an immigration judge that seems unwilling to consider the cumulative effect of your client’s equities, you can use both of these cases to attempt to influence him to do so, or, if he won’t listen, you can challenge his decision on appeal.

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5. Because the respondent in Matter of Edwards had such an extensive criminal record, the BIA held that he had to show unusual or outstanding equities for each of the serious crimes he had been convicted of. Practitioners should therefore argue that ordinarily someone with the type of equities he demonstrated should be granted relief and that Edwards was denied because his criminal record was so extensive and he could not make out a credible case that he had been rehabilitated. Distinguish your client as much as 54

23 I&N Dec. 467 (BIA 2002).

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possible from Edwards to show your client’s outstanding or unusual equities outweigh the negative factors in his case, and that your client’s criminal history is much less serious.

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6. Matter of Edwards also stands for the proposition that rehabilitation is not a prerequisite to a grant of § 212(c) relief, and that each case must be analyzed on a case by case basis, with rehabilitation a factor to be considered in the exercise of discretion. See page 196. This is something you should stress to the immigration court when you have a client who has been unable to demonstrate rehabilitation. This is especially critical when your client is detained. 7. However, in Matter of Edwards the BIA also found that rehabilitation was a “significant factor” in light of the seriousness of the respondent’s extensive criminal history. See page 198. Therefore you must be sure to submit any evidence of rehabilitation you can come up with, and, if there is little such evidence, try to argue that (a) your client has not had an opportunity to show rehabilitation, and/or (b) his criminal history is not so serious as to require a showing of rehabilitation, especially in light of the favorable equities presented. D.

Matter of Roberts

In Matter of Roberts, the respondent had a single felony conviction for possession for sale of a controlled substance. The BIA found that since possession for sale is defined as a drug trafficking crime in 18 USC § 924(c)(2) (1988), the respondent was properly classified as a drug trafficker, and that a serious drug offense, particularly a trafficking offense, would require a showing of unusual or outstanding equities. Matter of Roberts, at 300-301. As the BIA stated: We find that the respondent’s conviction for sale of cocaine constitutes an extremely serious adverse factor. As such, the respondent must demonstrate unusual or outstanding equities if he is to have the possibility of receiving a favorable exercise of discretion on his waiver application. Matter of Buscemi, supra. We conclude that the respondent has not demonstrated unusual or outstanding equities so as to offset the serious adverse factors in his record.

Matter of Roberts, at 301-302.

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In the respondent’s favor, we take into account the fact that he has resided in the United States for approximately 12 years. However, we do not find that this period is so lengthy as to constitute an unusual or outstanding equity, particularly where the respondent was an adult when he was first admitted to this country as a lawful permanent resident. The majority of the respondent’s family resides in New York, and although none of them appeared to testify on his behalf, they did submit letters in support of his waiver request. We note that although the respondent has many close relatives residing lawfully in the United States, he has been separated from his wife and their four children since 1987. Further, he admitted that he did not call or write to his wife since he was convicted in 1989. In addition, the respondent testified that he is not sure of the whereabouts of his 2year-old son but believes that he is in the custody of the child’s maternal grandmother, who supports him from her welfare income. In terms of the financial difficulties that his family may face due to his deportation, we note that none of the respondent’s family appear to rely on him for financial support.

Although Matter of Roberts has some negative implications, especially for those convicted of drug offenses, it is not really a departure from Matter of Marin, Matter of Edwards and Matter of Buscemi, and therefore can be used to argue in favor of your clients. Let’s take a look at Matter of Roberts stands for, and how you can use it to your client’s advantage: 1. Anyone with a serious drug offense, especially a drug trafficker, must show unusual or outstanding equities as a threshold matter before § 212(c) can be considered. Matter of Roberts, at 300. This holding merely follows Matter of Marin. It does not negate the finding that long-term permanent residence, particularly from a young age, and immediate family in the U.S. are outstanding equities. See Matter of Buscemi. 2. Matter of Roberts also says that “we do not look to what ground of deportability or inadmissibility a particular crime comes within, but rather, the nature of the underlying crime itself in determining the degree of equities that will be required to overcome the crime.” In other words, you can argue that even if your client has a crime classified as an aggravated felony, that does not necessarily mean that it is so serious as to require a showing of unusual or outstanding equities, especially when the definition of what constitutes an aggravated felony has been so drastically expanded by IIRIRA, and even encompasses some misdemeanor offenses. 3. Although the immigration judge could look at the circumstances surrounding a conviction, it was impermissible for him to determine guilt or innocence (the BIA rejected the immigration judge’s consideration of respondent’s theory of entrapment). Matter of Roberts, at 301. This means that the immigration judge can look to the circumstances surrounding the conviction when weighing your client’s equities, such as your client’s youth at the time the crime was committed, whether he was coerced into participating in the crime, or under the influence of an older, more sophisticated individual, or whether he did it because he was destitute, or to protect a family member from some kind of harm, etc.

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4. The denial in Matter of Roberts was based on the respondent’s failure to show unusual or outstanding equities. For example, he had a family in the U.S., but was separated from his wife and children and did not know where his youngest child, fathered with a girlfriend, was living. Matter of Roberts, at 301-302. In other words, this case does not stand for the proposition that someone with a single drug trafficking offense can almost never be granted § 212(c) relief, even if unusual or outstanding equities are shown. Note that in Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995) the BIA granted § 212(c) relief to someone whose offense was importing 78.45 kilograms of marijuana (see discussion of this case below). Practitioners are likely to find that some immigration judges, and most ICE attorneys, will misinterpret Matter of Roberts, and attempt to use it to defeat applications for § 212(c) relief for people with aggravated felonies, and/or drug offenses, on the theory that the crime alone is nearly always going to outweigh all the equities. But Matter of Roberts does not negate the holding in Matter of Marin that all the facts and circumstances of the respondent’s case must be weighed, nor does it negate the holding in Matter of Edwards that the favorable factors must be considered cumulatively before a discretionary determination can be made. Finally, Matter of Roberts does

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not negate the requirement that cases are to be adjudicated on a case-by-case basis, meaning that an individualized consideration your client’s situation is required. E.

Matter of Arreguin

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In Matter of Arreguin, the respondent was convicted of attempting to import almost 80 kilos of marijuana. At the time of her hearing, she was serving a sentence for her crime. Nonetheless, she was granted relief. The key to her success was her remorse and her efforts at rehabilitation. For example, at the hearing she said she was thankful she got caught and was unable to carry out the crime, and while in prison she was attempting to earn her GED. She also had pursued other educational courses, and was involved in a church ministry. Moreover the sentencing report said that she had played a relatively minor role in the offense. She also had five children, two of whom were minors, and had been a permanent resident for almost 20 years. Thus she was able to show outstanding equities. Matter of Arreguin, at 40-41. This case proves that even those with serious convictions, and even those who are detained, may be able to obtain § 212(c) relief in the exercise of discretion. As the BIA held: An alien who has committed a serious drug offense faces a difficult task in establishing that she merits discretionary relief. Nevertheless, relief under § 212(c) of the Act may be merited based upon the totality of circumstances presented in a particular case. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). Here, we have weighed the negative fact of the applicant’s only conviction, the mitigating facts of her minor role and efforts toward rehabilitation, and the favorable facts of record, which include nearly 20 years of lawful residence and two minor dependent children, and we find that relief under § 212(c) of the Act is warranted in this instance. Matter of Arreguin, at 43. F.

Zheng v. Holder

The petitioner in Zheng v. Holder had been convicted at the age of 16 of kidnapping, robbery, and a firearms violation. He was sentenced as an adult and was imprisoned for 19 years. While in prison, he learned English, obtained his GED, earned an Associate of Arts Degree in Liberal Arts, co-facilitated a course entitled “Alternatives to Violence,” developed a curriculum targeting atrisk immigrant teenagers, which was being used by community service providers in Northern California, and developed a business plan for a non-profit agency. He applied for and was granted parole from prison on the basis of his extraordinary rehabilitation and positive equities. Upon his release from prison he was placed in removal proceedings, but ultimately was released from immigration detention and continued to engage in violence prevention work in his community. Through this work he gained support from community leaders, politicians, and members of the law enforcement who wrote letters of support on his behalf to the immigration court. The immigration judge denied his application for § 212(c) relief, and the BIA affirmed, finding that he had not “identified unusual or outstanding equities sufficient to overcome his serious criminal conviction.” The BIA did not mention Petitioner’s service work for youth in the community.

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The court reversed and remanded to the BIA, finding that the BIA had abused its discretion by failing to consider the evidence of Zheng’s service to the community. In so doing, the court found that rehabilitation and service to the community were separate factors that had to be separately weighed with the other factors in his case.

Matter of Arreguin and Zheng v. Holder, show that practitioners should not despair when representing clients with serious convictions, even drug convictions and crimes of violence. To win cases where the criminal record is serious, extra effort is definitely required, both from the practitioner and the client. Nevertheless, these cases are winnable. To have the best possible chance of success, the evidence of unusual and outstanding equities must be extensive and corroborated. Assume that you need to show some evidence of remorse and/or rehabilitation. Encourage your clients to engage in community service activities. While not everyone will be as outstanding as Mr. Zheng in service to the community, activities such as participation in religious institutions, educational programs, environmental organizations, etc. can be very helpful in overcoming a serious criminal background.

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For a discussion of how to work with clients to obtain the best evidence possible and how to tell your client’s story, please see Chapter 10.

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APPENDIX 5-B 8 CFR § 1003.44 (Motions to Reopen for § 212(c) after St. Cyr) § 1003.44 Special motion to seek section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes before April 1, 1997. (a) Standard for adjudication. This section applies to certain aliens who formerly were lawful permanent residents, who are subject to an administratively final order of deportation or removal, and who are eligible to apply for relief under former section 212(c) of the Act and 8 CFR 1212.3 with respect to convictions obtained by plea agreements reached prior to a verdict at trial prior to April 1, 1997. A special motion to seek relief under section 212(c) of the Act will be adjudicated under the standards of this section and 8 CFR 1212.3. This section is not applicable with respect to any conviction entered after trial. (b) General eligibility. The alien has the burden of establishing eligibility for relief, including the date on which the alien and the prosecution agreed on the plea of guilt or nolo contendere. Generally, a special motion under this section to seek section 212(c) relief must establish that the alien: (1) Was a lawful permanent resident and is now subject to a final order of deportation or removal; (2) Agreed to plead guilty or nolo contendere to an offense rendering the alien deportable or removable, pursuant to a plea agreement made before April 1, 1997; (3) Had seven consecutive years of lawful unrelinquished domicile in the United States prior to the date of the final administrative order of deportation or removal; and (4) Is otherwise eligible to apply for section 212(c) relief under the standards that were in effect at the time the alien's plea was made, regardless of when the plea was entered by the court.

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(c) Aggravated felony definition. For purposes of eligibility to apply for section 212(c) relief under this section and 8 CFR 1212.3, the definition of aggravated felony in section 101(a)(43) of the Act is that in effect at the time the special motion or the application for section 212(c) relief is adjudicated under this section. An alien shall be deemed to be ineligible for section 212(c) relief if he or she has been charged and found deportable or removable on the basis of a crime that is an aggravated felony, except as provided in 8 CFR 1212.3(f)(4). (d) Effect of prior denial of section 212(c) relief. A motion under this section will not be granted with respect to any conviction where an alien has previously been denied section 212(c) relief by an immigration judge or by the Board on discretionary grounds.

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(e) Scope of proceedings. Proceedings shall be reopened under this section solely for the purpose of adjudicating the application for section 212(c) relief, but if the immigration judge or the Board grants a motion by the alien to reopen the proceedings on other applicable grounds under 8 CFR 1003.2 or 1003.23 of this chapter, all issues encompassed within the reopened proceedings may be considered together, as appropriate.

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(f) Procedure for filing a special motion to seek section 212(c) relief. An eligible alien shall file a special motion to seek section 212(c) relief with the immigration judge or the Board, whichever last held jurisdiction over the case. An eligible alien must submit a copy of the Form I–191 application, and supporting documents, with the special motion. The motion must contain the notation “special motion to seek section 212(c) relief.” The Department of Homeland Security (DHS) shall have 45 days from the date of filing of the special motion to respond. In the event the DHS does not respond to the motion, the DHS retains the right in the proceedings to contest any and all issues raised. (g) Relationship to motions to reopen or reconsider on other grounds. (1) Other pending motions to reopen or reconsider. An alien who has previously filed a motion to reopen or reconsider that is still pending before an immigration judge or the Board, other than a motion for section 212(c) relief, must file a separate special motion to seek section 212(c) relief pursuant to this section. The new motion shall specify any other motions currently pending before an immigration judge or the Board. An alien who has previously filed a motion to reopen under 8 CFR 1003.2 or 1003.23 based on INS v. St. Cyr is not required to file a new special motion under this section, but he or she may supplement the previous motion if it is still pending. Any motion for section 212(c) relief described in this section pending before the Board or an immigration judge on the effective date of this rule that would be barred by the time or number limitations on motions shall be deemed to be a motion filed pursuant to this section, and shall not count against the number restrictions for other motions to reopen. (2) Motions previously filed pursuant to prior provision. If an alien previously filed a motion to apply for section 212(c) relief with an immigration judge or the Board pursuant to the prior provisions of this section, as in effect before October 28, 2004, and the motion is still pending, the motion will be adjudicated pursuant to the standards of this section, both as revised and as previously in effect, and the alien does not need to file a new special motion pursuant to paragraph (g)(1) of this section. However, if a motion filed under the prior provisions of this section was denied because the alien did not satisfy the requirements contained therein, the alien must file a new special motion pursuant to this section, if eligible, in order to apply for section 212(c) relief based on the requirements established in this section. (3) Effect of a prior denial of a motion to reopen or motion to reconsider filed after the St. Cyr decision. A motion under this section will not be granted where an alien has previously submitted a motion to reopen or motion to reconsider based on the St. Cyr decision and that motion was denied by an immigration judge or the Board (except on account of time or number limitations for such motions).

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(4) Limitations for motions. The filing of a special motion under this section has no effect on the time and number limitations for motions to reopen or reconsider that may be filed on grounds unrelated to section 212(c). (h) Deadline to file a special motion to seek section 212(c) relief under this section. An alien subject to a final administrative order of deportation or removal must file a special motion to seek section 212(c) relief on or before April 26, 2005. An eligible alien may file one special motion to seek section 212(c) relief under this section. (i) Fees. No filing fee is required at the time the alien files a special motion to seek section 212(c) relief under this section. However, if the special motion is granted, and the alien has not previously filed an application for section 212(c) relief, the alien will be required to submit the appropriate fee receipt at the time the alien files the Form I–191 with the immigration court. (j) Remands of appeals. If the Board has jurisdiction and grants the motion to apply for section 212(c) relief pursuant to this section, it shall remand the case to the immigration judge solely for adjudication of the section 212(c) application. (k) Limitations on eligibility under this section. This section does not apply to: (1) Aliens who have departed the United States and are currently outside the United States; (2) Aliens issued a final order of deportation or removal who then illegally returned to the United States; or (3) Aliens who have not been admitted or paroled.

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[69 FR 57833, Sept. 28, 2004]

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APPENDIX 5-C 8 CFR § 1212.3

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(Eligibility for § 212(c) after St. Cyr) § 1212.3 Application for the exercise of discretion under former section 212(c). (a) Jurisdiction. An application by an eligible alien for the exercise of discretion under former section 212(c) of the Act (as in effect prior to April 1, 1997), if made in the course of proceedings under section 240 of the Act, or under former sections 235, 236, or 242 of the Act (as in effect prior to April 1, 1997), shall be submitted to the immigration judge by filing Form I–191, Application for Advance Permission to Return to Unrelinquished Domicile. (b) Filing of application. The application may be filed prior to, at the time of, or at any time after the applicant's departure from or arrival into the United States. All material facts or circumstances that the applicant knows or believes apply to the grounds of excludability, deportability, or removability must be described in the application. The applicant must also submit all available documentation relating to such grounds. (c) [Reserved] (d) Validity. Once an application is approved, that approval is valid indefinitely. However, the approval covers only those specific grounds of excludability, deportability, or removability that were described in the application. An applicant who failed to describe any other grounds of excludability, deportability, or removability, or failed to disclose material facts existing at the time of the approval of the application, remains excludable, deportable, or removable under the previously unidentified grounds. If the applicant is excludable, deportable, or removable based upon any previously unidentified grounds a new application must be filed. (e) Filing or renewal of applications before an immigration judge. (1) An eligible alien may renew or submit an application for the exercise of discretion under former section 212(c) of the Act in proceedings before an immigration judge under section 240 of the Act, or under former sections 235, 236, or 242 of the Act (as it existed prior to April 1, 1997), and under this chapter. Such application shall be adjudicated by the immigration judge, without regard to whether the applicant previously has made application to the district director. (2) The immigration judge may grant or deny an application for relief under section 212(c), in the exercise of discretion, unless such relief is prohibited by paragraph (f) of this section or as otherwise provided by law.

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(3) An alien otherwise entitled to appeal to the Board of Immigration Appeals may appeal the denial by the immigration judge of this application in accordance with the provisions of §1003.38 of this chapter.

(f) Limitations on discretion to grant an application under section 212(c) of the Act. An application for relief under former section 212(c) of the Act shall be denied if: (1) The alien has not been lawfully admitted for permanent residence; (2) The alien has not maintained lawful domicile in the United States, as either a lawful permanent resident or a lawful temporary resident pursuant to section 245A or section 210 of the Act, for at least seven consecutive years immediately preceding the filing of the application; (3) The alien is subject to inadmissibility or exclusion from the United States under paragraphs (3)(A), (3)(B), (3)(C), (3)(E), or (10)(C) of section 212(a) of the Act; (4) The alien has been charged and found to be deportable or removable on the basis of a crime that is an aggravated felony, as defined in section 101(a)(43) of the Act (as in effect at the time the application for section 212(c) relief is adjudicated), except as follows: (i) An alien whose convictions for one or more aggravated felonies were entered pursuant to plea agreements made on or after November 29, 1990, but prior to April 24, 1996, is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies, and (ii) An alien is not ineligible for section 212(c) relief on account of an aggravated felony conviction entered pursuant to a plea agreement that was made before November 29, 1990; or (5) The alien is deportable under former section 241 of the Act or removable under section 237 of the Act on a ground which does not have a statutory counterpart in section 212 of the Act. (g) Relief for certain aliens who were in deportation proceedings before April 24, 1996. Section 440(d) of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) shall not apply to any applicant for relief under this section whose deportation proceedings were commenced before the Immigration Court before April 24, 1996. (h) Availability of section 212(c) relief for aliens who pleaded guilty or nolo contendere to certain crimes. For purposes of this section, the date of the plea agreement will be considered the date the plea agreement was agreed to by the parties. Aliens are not eligible to apply for section 212(c) relief under the provisions of this paragraph with respect to convictions entered after trial.

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(1) Pleas before April 24, 1996. Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, without regard to the amendment made by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien's plea agreement was made before April 24, 1996.

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(2) Pleas between April 24, 1996 and April 1, 1997. Regardless of whether an alien is in exclusion, deportation, or removal proceedings, an eligible alien may apply for relief under former section 212(c) of the Act, as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, with respect to a conviction if the alien pleaded guilty or nolo contendere and the alien's plea agreement was made on or after April 24, 1996, and before April 1, 1997.

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(3) Please on or after April 1, 1997. Section 212(c) relief is not available with respect to convictions arising from plea agreements made on or after April 1, 1997. [56 FR 50034, Oct. 3, 1991, as amended at 60 FR 34090, June 30, 1995; 61 FR 59825, Nov. 25, 1996; 66 FR 6446, Jan. 22, 2001; 69 FR 57834, Sept. 28, 2004]

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CHAPTER 6 WAIVER OF THE CRIMINAL GROUNDS OF INADMISSIBILITY UNDER INA § 212(h)

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7

Introduction to the § 212(h) Waiver ................................................................... 6-1 Inadmissibility Grounds That Can Be Waived under § 212(h) .......................... 6-4 General Requirements for Eligibility for § 212(h) Relief ................................ 6-10 Restrictions on § 212(h) Eligibility for Certain Lawful Permanent Residents .......................................................................................................... 6-14 When Can One Use the § 212(h) Waiver? ....................................................... 6-23 Discretion in § 212(h) Cases ............................................................................ 6-31 Discretion in Violent or Dangerous Offenses .................................................. 6-34

§ 6.1

Introduction to the § 212(h) Waiver

Section 212(h) of the INA provides a discretionary waiver of common criminal grounds of inadmissibility. It has the potential to help a permanent resident who faces a certain criminal charges of inadmissibility and some charges of deportability, and it may be a useful alternative for people who do not qualify for LPR cancellation. (See Chapter 7 for a comparison of LPR cancellation and § 212(h) relief.) The § 212(h) waiver is an inadmissibility waiver that usually is used in conjunction with an affirmative application for adjustment of status, consular processing, or registry. It also can be used as a stand-alone waiver, without an accompanying adjustment or other application, to waive the inadmissibility of LPRs returning from a trip abroad who are deemed to be arriving aliens under INA § 101(a)(13)(C) at the border. 1 The § 212(h) waiver can be granted in removal proceedings in conjunction with a defensive adjustment application. Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). This section summarizes key aspects of § 212(h) relief, and refers the reader to sections that discuss each aspect in more detail. A.

Inadmissibility Grounds That Can Be Waived under INA § 212(h)

The § 212(h) waiver has a fairly limited reach, in that it can only waive the following criminal grounds of inadmissibility: 1. Crimes involving moral turpitude [INA § 212(a)(2)(A)(i)(I)] 2. Controlled substance convictions, but only regarding a single incident involving simple possession of 30 grams or less of marijuana [INA § 212(a)(2)(A)(i)(II)] 3. Multiple criminal convictions where the total aggregate sentence amounts to five years or more [INA § 212(a)(2)(B)] 1

Matter of Abosi, 24 I&N Dec. 204 (BIA 2007); citing Matter of Millard, 11 I&N Dec. 175 (BIA 1965).

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4. Engaging in prostitution [INA § 212(a)(2)(D)(i) &(ii)] 5. People who have asserted immunity from prosecution [INA § 212(a)(2)(E)]. Section 212(h) cannot waive inadmissibility based on a false claim to U.S. citizenship, unlawful voting, smuggling, or other grounds not specified above, nor can it waive grounds of deportability, unless the underlying conviction also triggers a ground of inadmissibility. 2 In this respect, it is less useful than LPR cancellation. However, except for certain permanent residents, § 212(h) can waive a conviction that is both a ground of inadmissibility and a (non-drug) aggravated felony. In this respect it is more useful than LPR cancellation. For further discussion of inadmissibility grounds waivable under § 212(h), see § 6.2. For further discussion of uses of LPR cancellation compared with § 212(h) relief, see Chapter 7. B.

General Requirements for Eligibility for § 212(h) Relief

An applicant for § 212(h) must be an immigrant or intending immigrant, meaning a lawful permanent resident or a person applying for lawful permanent residency. In addition the person must come within one of the following categories: 1. The person is the spouse, parent, son, or daughter of a U.S. citizen or permanent resident, and the person’s removal would cause extreme hardship to that relative, or 2. The activities that are the basis for inadmissibility occurred at least 15 years before the current application; or 3. The person is only inadmissible for prostitution under INA § 212(a)(2)(D)(i) or (ii); 3 or 4. The person is a VAWA self-petitioner. In the case of 2 and 3 the person also must show that she has been rehabilitated and her entry would not be contrary to the national welfare, safety or security of the U.S. Someone who has been convicted of or admitted committing acts constituting murder or criminal acts involving torture, or attempt or conspiracy to do so, is barred from eligibility for § 212(h). See INA § 212(h)(2). See further discussion of basic eligibility and bars at § 6.3.

2

This is discussed in detail in § 6.2. Lawful permanent residents may use the waiver to re-enter the United States at the border, or in conjunction with a new application for adjustment to overcome a conviction that triggers deportability as well as inadmissibility. 3 The waiver has a confused past. For years, it was available only to immigrants with qualifying citizen or permanent resident relatives. The drafters of the Immigration Act of 1990 (IMMACT 90) intended to liberalize the waiver by making it also available to persons who had committed the offense fifteen years in the past or who were inadmissible only for prostitution. Instead, through a drafting error in IMMACT 90 the waiver became available only to those who had qualifying relatives and who had committed the offense 15 years ago, as well as those inadmissible for prostitution. This was corrected to its present form by § 307 of the 1991 Technical Amendments, effective 12/12/91. The corrected waiver applies to persons whose applications are decided since 12/12/91, regardless of whether the application was submitted while the IMMACT 90 version was in place. Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).

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Restrictions on Eligibility for Some Lawful Permanent Residents

A person who physically has been admitted at the U.S. border or equivalent as a lawful permanent resident is subject to additional eligibility requirements for the § 212(h) waiver. Under § 212(h)(2), an LPR who fits this criteria may apply for the waiver only if she: • •

Has lawfully resided in the U.S. continuously for seven years preceding the date of initiation of removal proceedings, and Has not been convicted of an aggravated felony since being admitted at the border as a lawful permanent resident.

See further discussion of the restrictions on certain permanent residents at § 6.4. D.

When § 212(h) May Be Used

The § 212(h) waiver is an inadmissibility waiver that usually is used in conjunction with an affirmative application for adjustment of status, consular processing, or registry. It also can be used as a stand-alone waiver, without an accompanying adjustment or other application, to waive the inadmissibility of LPRs returning from a trip abroad who are deemed to be arriving aliens under INA § 101(a)(13)(C) at the border. Matter of Abosi, 24 I&N Dec. 204 (BIA 2007); citing Matter of Millard, 11 I&N Dec. 175 (BIA 1965). The § 212(h) waiver can be granted in removal proceedings in conjunction with a defensive adjustment application. 4 In Matter of Rivas, the BIA held that § 212(h) is not available as a defense against deportation unless it is filed in conjunction with an adjustment application. 5 Before that, an immigration judge could grant a § 212(h) waiver nunc pro tunc to waive a charge of deportability for having been inadmissible at the time of last entry under INA § 237(a)(1)(A), even when no adjustment application was filed. The result under Matter of Rivas is that a permanent resident who is identified as being inadmissible at a port of entry may apply for a § 212(h) waiver when seeking admission without an adjustment application. But if the government mistakenly permits the permanent resident to enter the U.S. and then places her in removal proceedings, she cannot apply for the waiver without an adjustment application. Advocates may consider contesting the Matter of Rivas rule (a) in general, and/or (b) as applied retroactively to convictions that occurred before the date Matter of Rivas was published, June 20, 2013. See further discussion of when § 212(h) may be used at § 6.5. E.

Standards for Exercise of Discretion in § 212(h) Cases

Like all waivers, the relief is discretionary. In Matter of Mendez-Morales, 6 the BIA discussed the standard for exercise of discretion employed in § 212(h) cases. The Board stated that beyond proving extreme hardship to family members, the § 212(h) applicant must show that countervailing positive equities outweigh negative ones, similar to what has been required in 4

Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). Id. 6 Matter of Mendez-Morales, 21 I&N Dec. 296 (BIA 1996). 5

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§ 212(c) cases. See Matter of Marin, 16 I&N Dec. 581 (BIA 1978) and Chapter 5. In other words, extreme hardship to statutory relatives does not automatically entitle the applicant for relief. 7 See further discussion of standards for exercise of discretion at § 6.6. F.

Discretion in Waiving Violent or Dangerous Offenses

Federal regulation sets forth a blanket policy of denying § 212(h) waivers as a matter of discretion to people convicted of one or more “violent or dangerous” offenses, “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that the denial of the application … would result in exceptional and extremely unusual hardship.” 8 CFR § 212.7(d). In addition, depending on the gravity of the underlying criminal offense, “a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion.” See further discussion on standards for waiving violent or dangerous offenses at § 6.7. G.

Section 212(h) Relief Compared to LPR Cancellation of Removal

When a permanent resident is inadmissible or deportable for a crime, it is important to consider eligibility for both a § 212(h) waiver and LPR cancellation under INA § 240A(a). Each form of relief has distinct advantages, and for technical reasons a permanent resident who is barred from one form of relief might be eligible for the other. Example: LPR Larry adjusted status after coming to the United States. He is married to a U.S. citizen, Linda. Thereafter, Larry was convicted of a theft offense with a sentence of one year. After a complete analysis of the theft statute, it is determined that this conviction is an aggravated felony as a theft offense with a one year or more sentence. Larry is ineligible for cancellation of removal, but Larry could apply to adjust status through his wife and apply for a 212(h) waiver in conjunction. See Chapter 7 for a discussion of when to use each form of relief. In addition, for those with crimes prior to April 1, 1997, 212(c) relief might also be appropriate. See Chapter 5. § 6.2

Inadmissibility Grounds That Can Be Waived under § 212(h)

Practitioners should always bear in mind that the best argument for a client is that he or she does not fall within the grounds of inadmissibility or deportability charged by the government. Therefore, always scrutinize the charges of admissibility or deportability to determine if there is a way to challenge them. With that in mind, let’s look at the criminal grounds of inadmissibility that can be waived under § 212(h): 1. Crimes involving moral turpitude [INA § 212(a)(2)(A)(i)(I)] 2. Controlled substance convictions, but only stemming from a single incident involving simple possession of 30 grams or less of marijuana [INA § 212(a)(2)(A)(i)(II)] 3. Multiple criminal convictions where the total aggregate sentence amounts to five years or more [INA § 212(a)(2)(B)] 7

Matter of Mendez-Morales, above, at 301.

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4. Engaging in prostitution [INA § 212(a)(2)(D)(i) &(ii)] 5. People who have asserted immunity from prosecution [INA § 212(a)(2)(E)]. Numbers 1 through 4 are discussed below. Number 5 is not likely to apply to a permanent resident, since only diplomats can assert immunity from prosecution, and those who adjust status from a diplomatic visa (A or G) must either be out of status or must waive their privileges and immunities as diplomats. 8 Note that with some exceptions, § 212(h) can be used even if the conviction that causes inadmissibility also constitutes an aggravated felony. Section 212(h) is one of the few forms of relief potentially available to an LPR with a (non-drug-related) aggravated felony conviction. See Subsection E, below. A.

Crimes Involving Moral Turpitude [INA § 212(a)(2)(A)(i)(I)]

As explained in Chapter 2 of this manual, what constitutes a crime involving moral turpitude is a matter of much litigation and little clarity. An offense may be a crime involving moral turpitude if the minimum conduct to commit the offense requires: lewdness; assault or battery that is more than a mere “offensive” touching; intentionally causing harm (or in some cases, recklessly causing very serious harm); theft where there was intent to deprive permanently; or fraud, or where the owner’s property rights were substantially eroded. But counsel never should automatically concede that your client has been convicted of a crime involving moral turpitude, because the BIA and the courts have come to some surprising conclusions on this issue. Further, the Supreme Court recently has clarified how offenses are to be analyzed for removal purposes, under the federal “categorical approach.” This has overturned many prior precedent decisions, to the benefit of immigrants. The BIA has held that this approach must be followed in immigration proceedings. 9 In short, whether an offense truly is a crime involving moral turpitude is often difficult to ascertain, and it will not necessarily be affected by the title of the offense (“theft” or “spousal battery”), the underlying facts, or information in the record. When the government claims that your client is inadmissible or deportable for a crime involving moral turpitude, therefore, don’t admit the allegation. Undertake legal research or consult an expert. See Chapter 2, §§ 2.4, 2.5, 2.6, and 2.9 for more detailed explanations of how to analyze crimes and what constitutes a crime involving moral turpitude. B.

Simple Possession of 30 Grams or Less of Marijuana [INA § 212(a)(2)(A)(i)(II)]

Section 212(h) can be used to waive one or more convictions relating to a single incident that involved possession or use of, or possession of paraphernalia for use with, 30 grams or less of marijuana, or an equivalent amount of hashish. It also should be available to waive a charge of inadmissibility based on formally admitting such conduct. This is the only controlled substance offense that a § 212(h) waiver can cure.

8

See 8 CFR §§ 245.1(c)(3), 1245.1(c)(3). Matter of Chairez, 26 I&N Dec. 819 (BIA 2016), adopting approach in Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013).

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As noted in Chapter 2, the definition of 30 grams or less of marijuana includes hashish, although a § 212(h) waiver will generally be denied if the amount of hashish is more than what 30 grams of marijuana would be. INS General Counsel Legal Opinion 96-3 (April 23, 1996). Furthermore, at least in the Ninth Circuit, 30 grams or less of THC falls within the definition of 30 grams or less of marijuana. Medina v. Ashcroft, 393 F.3d 1063 (9th Cir. 2005). The § 212(h) waiver also can be used to waive a conviction for possession of drug paraphernalia where the drug involved was 30 grams or less of marijuana. Matter of Martinez-Espinoza, 25 I&N Dec. 118, 125 (BIA 2009); 10 Escobar Barraza v. Mukasey, 519 F.3d 388 (7th Cir. 2008). The definition of 30 grams or less of marijuana may also extend to convictions or admissions of being under the influence of marijuana. See Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993). 11 The BIA has held that the waiver is not available if other factors are present. In Matter of Moncada-Servellon, 12 the BIA held that a conviction for possession of 30 grams or less of marijuana while in prison does not fall within the exception to the controlled substance deportability grounds, reasoning that: The possession of less than 30 grams of marijuana in prison is both a State and Federal felony. It is neither a “minor” offense nor a “simple possession” offense. We therefore conclude that it does not fall within any exception to the section 237(a)(2)(B)(i) ground of deportability. Accordingly, we will sustain the DHS’s appeal with regard to the section 237(a)(2)(B)(i) charge and remand the record for further proceedings to determine whether the respondent is eligible for, and deserving of, any form of relief from removal. Moncada-Servellon, at 67. In a similar case, the BIA also found someone ineligible for § 212(h) relief where his conviction was for possession of marijuana in a drug free zone.13 In Martinez-Zapata, the BIA found that the enhancement for being in a drug free zone was an element of the crime, and the conviction was therefore more than merely a conviction for simple possession of 30 grams or less of marijuana.14 In making this decision, the BIA emphasized that not all sentence enhancements could be deemed to be elements of the underlying offense; rather, in this particular case, the element of being in a drug free zone was an element of the offense because it had to be proved beyond a reasonable doubt in order for the conviction to be sustained. 15 Therefore, you need to look carefully at the statute under which your client was convicted in order to ascertain whether or not § 212(h) relief 10

In this case, the BIA held that a noncitizen may qualify for a § 212(h) waiver if he or she can show by a preponderance of the evidence that a conviction for possession of paraphernalia relates to a single offense of simple possession of 30 grams or less of marijuana. The Board emphasized, however, that an offense does not relate to a single offense of simple possession of 30 grams or less of marijuana if it contains elements that make it substantially more serious than “simple possession.” Martinez-Espinoza at 125. 11 But see Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), finding that “under the influence” is a more serious offense than simple possession. 12 24 I&N Dec. 62 (BIA 2007). 13 Matter of Martinez-Zapata, 24 I&N Dec. 424 (BIA 2007). 14 Martinez-Zapata, at 429. 15 Martinez-Zapata at 430.

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is an option, and, if not, whether the conviction can be modified to simple possession of 30 grams or less of marijuana. Assume that the immigrant must prove as a factual matter that the amount of marijuana involved was 30 grams or less, or an equivalent amount of hashish. The BIA has held that a nearly identical phrase, which creates an automatic exception to the controlled substance deportation ground based on conviction relating to a single incident involving 30 grams or less of marijuana, must be treated as a factual issue, under the “circumstance-specific” approach. 16 The BIA held that where the issue is the automatic exception to the deportation ground, the government has the burden of showing that the amount was more than 30 grams, which it may do by presenting any relevant evidence. In the context of applying for a waiver, authorities are likely to hold that the immigrant must prove that the amount of marijuana involved in the incident was 30 grams or less, in order to be eligible for the § 212(h) waiver. Some advocates argue that the BIA is incorrect to hold that the amount of marijuana in these provisions is a factual matter, subject to the circumstance-specific approach. The circumstancespecific approach is an exception to the usual “categorical” approach. Advocates argue that the amount of marijuana should be evaluated under the categorical approach, in which a conviction is evaluated not on the facts of the case, but on the minimum conduct required for guilt. If this position prevailed, the applicant would not have to prove that the incident, in fact, involved 30 grams or less, but only the minimum amount punished under the criminal statute in question could be 30 grams or less. See discussion in Chapter 2. Admitting a Controlled Substance Offense; Issues with Legalized and Medical Use of Marijuana. A person also is inadmissible for formally admitting to a DHS officer that she committed an offense relating to a federally-defined controlled substance, even without a conviction. See INA § 212(a)(2)(A)(i)(II) and Chapter 2, § 2.10. Clients should be warned not to make such admissions. Beware Admissions to Marijuana Use! Ironically, noncitizens who live in states that make it legal to use marijuana for medical and/or recreational purposes may face a particular risk. They may reasonably believe that because possession of marijuana is permitted under state law, it is safe to possess it and to admit this conduct to an immigration official. In fact, because possession of marijuana still is an offense under federal law, admitting this conduct can make them inadmissible. See discussion in § 2.10. Inadmissibility arising from admitting conduct that relates only to a single incident involving 30 grams or less of marijuana should be waivable under § 212(h). C.

Multiple Criminal Convictions Where the Total Aggregate Sentence(s) Is Five Years or More [INA § 212(a)(2)(B)]

This ground of inadmissibility bars those with two or more offenses where the sentence(s) to confinement added up to five years or more, including suspended sentences. See Chapter 2, § 2.15, It doesn’t matter whether or not the offenses were crimes involving moral turpitude, nor

16

Matter of Dominguez-Rodriguez, 26 I&N Dec. 408 (BIA 2014); Matter of Davey, 26 I&N Dec. 37 (BIA 2012).

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does it matter whether or not the crimes arose out of a single scheme of criminal misconduct. However, there is an exception for purely political offenses. When analyzing a conviction where a long sentence was imposed, be sure to investigate all of the possible immigration consequences. Check to see if it might trigger other removal grounds or penalties, including whether it may be an aggravated felony (which will bar some permanent residents from eligibility for § 212(h)) or be considered a “violent or dangerous offense” (which triggers a tough discretionary standard). Beware Multiple DUIs! If the person has multiple convictions for drunk driving, check to see if over the course of a lifetime the sentences and suspended sentences have reached five years. Conviction of simple drunk driving is not an aggravated felony regardless of sentence, and if the offense did not involve injury it might not be classed as a “violent or dangerous” offense—but it might make the person inadmissible based on the aggregate five years’ sentence. D.

Prostitution and Commercialized Vice [INA § 212(a)(2)(D)]

Inadmissibility for prostitution may arise as an issue with respect to returning LPRs who are deemed arriving aliens under INA § 101(a)(13)(C) or for those who are found to have been inadmissible at the time of admission under INA § 237(a)(1)(A). There are two main things to pay attention to if you are contemplating using § 212(h) to waive this ground of inadmissibility: 1. Is your client really inadmissible under the prostitution ground in INA § 212(a)(2)(D)(i)? Someone who has only been convicted of one prostitution offense does not fall within this ground. 17 Additionally, prostitution is defined as offering sexual intercourse for a fee, not other lewd acts. 18 Furthermore, someone who solicits a prostitute on his own behalf is also not inadmissible under this ground. 19 Therefore, your first argument against this ground of inadmissibility will often be that it does not apply, and therefore no waiver is necessary. 2. If your client is found inadmissible for procuring or attempting to procure prostitutes under INA § 212(a)(2)(D)(ii), and was convicted of this offense, the conviction might be an aggravated felony 20 under INA § 101(a)(43)(K). Conviction of an aggravated felony will make a permanent resident ineligible for a § 212(h) waiver if he is subject to the LPR restrictions. See § 6.4, Subsection B, below. E.

Waiving an Inadmissible Conviction That also Is an Aggravated Felony

With some exceptions, there is no statutory bar to using § 212(h) to waive conviction of an inadmissible offense that also is an aggravated felony. 21 In fact, § 212(h) provides a crucial vehicle for permanent residents to ask for relief from removal for a (non-drug) aggravated felony 17 Matter of T-, 6 I&N Dec. 474 (SIO 1954; BIA 1955). See also Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006). 18 See Kepilino, supra at 1062-63, and see 9 FAM 102.3-1(U). 19 Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008). See Chapter 2, § 2.12(1). 20 See Chapter 2, § 2.8. 21 Matter of Michel, 21 I&N Dec. 1101 (BIA 1998); Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000).

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conviction. This can be used when applying for admission at a border or port of entry, or as a defense to a charge of deportability if coupled with an application for adjustment of status. It is easy to get confused. The rule is not that § 212(h) can waive any aggravated felony; it is that sometimes it can waive the inadmissibility grounds listed at § 212(h)(1), even if the conviction/s also constitute aggravated felonies. There are two exceptions. Section 212(h) is not available to persons who have committed murder and torture (see § 6.3) and to permanent residents if they come within the LPR restrictions, which apply only to certain permanent residents and certain aggravated felony convictions (see § 6.4). Otherwise, an aggravated felony is not a bar. Consider this example: Example: Serena adjusted status through her U.S. citizen husband. Then she was convicted of theft and received a one-year suspended sentence. This particular theft conviction makes her deportable under the aggravated felony ground 22 and inadmissible under the crimes involving moral turpitude ground. She is placed in removal proceedings, charged with being deportable for the aggravated felony. She could apply to re-adjust her status through her husband as a defense to removal, but she would have to apply under § 212(h) to waive the moral turpitude inadmissibility ground for purposes of adjustment. The LPR restrictions do not apply to her. Can she do this? Yes. A permanent resident may apply for a § 212(h) waiver of inadmissibility in conjunction with an adjustment application, as a defense to a charge of deportability. Unless she is barred under LPR restrictions, the fact that the inadmissible offense also is an aggravated felony does not bar eligibility for § 212(h). If the waiver is granted and she re-adjusts status, she will no longer be inadmissible or deportable based on the conviction. The BIA recognizes that noncitizens are not inadmissible based upon having an aggravated felony conviction, because there is no aggravated felony inadmissibility ground—only a deportability ground. 23 In a case like Serena’s, § 212(h) is needed only to waive the moral turpitude inadmissibility ground. If that is waived, she is admissible despite the aggravated felony conviction. Many offenses that are crimes involving moral turpitude also qualify as aggravated felonies, if certain conditions are met. For example, depending upon the elements of the offense, a conviction for theft or violent conduct could cause inadmissibility as a crime involving moral turpitude, and if a sentence of a year were imposed it also could be an aggravated felony under INA § 101(a)(43)(F) or (G). A conviction of fraud could be both a crime involving moral turpitude and, if the loss to the victim/s exceeded $10,000, an aggravated felony. INA §§ 101(a)(43 (M).

22

Conviction of an offense that meets a federal definition of “theft” is an aggravated felony if a sentence of one year or more is imposed. INA § 101(a)(43)(G). Conviction of an aggravated felony is a ground of deportability under INA § 237(a)(2)(A)(iii). 23 “[B]ecause the aggravated felony ground of deportability does not have an analogue among the criminal grounds of inadmissibility under section 212(a)(2), an alien convicted of an aggravated felony is not inadmissible as a result of that conviction and, accordingly, requires no waiver on that basis.” Matter of Kanga, at 1206, n.1.

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Note on the LPR Restrictions. The LPR restrictions on § 212(h) eligibility are discussed at § 6.4. A permanent resident is barred from § 212(h) by conviction of an aggravated felony if, before the date of conviction, the person was admitted at a border or border equivalent as a permanent resident. See INA § 212(h)(2). The result is that some permanent residents—notably, anyone those who immigrated through consular processing—are barred from § 212(h) if they were later convicted of an aggravated felony. But many permanent residents who adjusted status are not barred and can apply for § 212(h) even if the inadmissible offense also is an aggravated felony. See § 6.4 before concluding that a permanent resident client is barred. Controlled Substance Offenses. Unfortunately, § 212(h) does not waive a controlled substance aggravated felony, because the only drug conviction or admission of conduct that it can waive is one arising from a single incident involving simple possession of a small amount of marijuana. See § 212(h)(1) and see Subsection B, above. Discretion; Dangerous or Violent Offenses. Under 8 CFR §§ 212.7(d), 1212.7(d), it is extremely difficult to obtain a waiver under § 212(h) for conviction of a “dangerous or violent” offense. See § 6.7. The BIA has held that not all aggravated felonies are dangerous or violent offenses that trigger this standard. In Matter of K-A-, 23 I&N Dec. 661 (BIA 2004), the Board found that a conviction relating to forgery where a sentence of a year was imposed was an aggravated felony, but was not a dangerous or violent offense. The Board warned, however, that “even nonviolent aggravated felonies will generally constitute significant negative factors militating strongly against a favorable exercise of discretion.” Id. at 666. § 6.3

General Requirements for Eligibility for § 212(h) Relief

Certain bars to eligibility for § 212(h) relief apply to all noncitizens. Any person who has committed murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal offense involving torture, is ineligible. INA § 212(h)(2). Certain requirements for § 212(h) relief apply to all noncitizens. An applicant must come within any of the following four categories in order to apply for a § 212(h) waiver. INA § 212(h)(1). (Additional requirements apply to some lawful permanent residents. See § 6.4.) A.

Extreme Hardship to a Qualifying Family Member [INA § 212(h)(1)(B)]

One way to qualify for the § 212(h) waiver is if the applicant is the spouse, parent, son or daughter of a U.S. citizen or a lawful permanent resident, and the applicant’s removal or denial of admission would cause extreme hardship to the qualifying relative(s). Extreme hardship in this context is the same as extreme hardship in former suspension of deportation cases and in other waiver applications, such as waivers for misrepresentation under INA § 212(i) or unlawful presence under INA § 212(a)(9)(B)(v). Note that the § 212(h) waiver is a little more generous than the waivers for misrepresentation and unlawful presence in that it is available to the parents of U.S. citizens and permanent residents, unlike the waivers for misrepresentation and unlawful presence.

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PRACTICE TIP: Unlike the unlawful presence waivers, hardship to U.S. citizen or lawful permanent resident children counts for purposes of § 212(h). Practitioners should look to the types of factors that the BIA has considered to determine extreme hardship in these types of cases. Some relevant factors are: • • • • • • • •

The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in another country; The health condition of the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned; The alien’s ability to obtain employment in the country to which the alien would be returned and how that would impact his statutory relatives; The length of residence in the United States of each statutory relative; The existence of other family members who are legally residing in the United States, and how separation from them would cause extreme hardship to statutory relatives; The financial impact of the applicant’s departure; The impact of a disruption of educational opportunities for USC and LPR children; The psychological impact of the alien’s deportation on statutory relatives;

•

The current political and economic conditions in the country to which the alien would be returned, and how those conditions would impact statutory relatives;

•

The lack of family and other ties to the country to which the applicant would be returned;

•

Contributions to and ties to a community in the United States, including the degree of integration into society of both the applicant and his or her statutory relatives;

•

Immigration history, including authorized residence in the United States.

Family separation, financial hardship, and other common consequences of inadmissibility are not enough. Rather, the applicant must show the qualifying relative would experience hardship beyond the common consequences of family separation or moving to another country. Factors that may be relevant in establishing extreme hardship include emotional and psychological trauma suffered from separation, loss of employment or educational opportunities, access to medical care, and other severe changes in the life of the qualifying family member resulting from the separation as well as conditions in the country to which the relative may have to move because of her inability to remain in the U.S. without the applicant. When crafting your extreme hardship argument, be sure to read the USCIS Policy Manual section on Extreme Hardship in the context of waivers. The Policy Manual is a useful tool for organizing your hardship argument. While this guidance is not controlling on the courts, the guidance illustrates the various hardship formulations and can be persuasive with CBP. Additionally, the USCIS guidance includes citations to key hardship cases. This guidance is available at: www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB.html. Hardship to the applicant or to another, non-qualifying relative can also be included in the waiver application, but in the context of the impact this hardship would have on the qualifying relative.

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Burden of Proof and Standard of Proof. In establishing extreme hardship and other eligibility requirements, the burden of proof is on the applicant 24 and it requires a showing by a preponderance of the evidence or “more likely than not” standard. 25 Aggregating Hardships. In establishing hardship, relevant factors are considered in the aggregate, not individually. 26 Thus, one factor taken alone may be insufficient to meet the extreme hardship standard but when considered together with other factors it may be sufficient. An applicant can aggregate hardships to one qualifying relative or the applicant can aggregate hardships to multiple qualifying relatives in order to establish extreme hardship.27 Because the extreme hardship analysis is cumulative, be sure to include all hardships the applicant’s qualifying relative will face. Do not be deterred if you do not have a particularly significant factor. And if you do have a particularly significant factor, be sure to include other hardship factors as it is not a guarantee of extreme hardship. Example: Joaquin is an LPR who is being charged as an arriving alien under INA § 101(a)(13)(C) because he was convicted of embezzlement, a crime of moral turpitude, for which he served an 8 month sentence in the county jail. He has a wife who is an LPR and 2 U.S. citizen children. All are healthy, though his wife, Melanie, is pregnant. If Joaquin were denied admission, he probably could find work in his home country, because he is a master carpenter. However, he would likely earn much less. Melanie’s elderly parents, both U.S. citizens, depend on her and Joaquin financially, and are frail though otherwise healthy. They are not able to care for the children because they have trouble getting around and must use walkers. All live in the same household, and they would lose the house if Joaquin were not there earning his salary as a master carpenter. Melanie is a registered nurse, but her salary alone is not enough to maintain the household, and currently she works part-time to care for her parents and children. Even with a full-time salary, she would not earn enough to maintain the household and she would then need full-time childcare. In addition, if she went to Mexico, she could not work as a nurse until she became licensed there, and she does not speak Spanish, so she would not be able to pass the licensing exam. Her parents have lived in the U.S. their entire lives, and are too old to travel, and would be deprived of their grandchildren if they had to leave and live in Mexico to be with their father. Melanie is an only child, so she feels responsible for her parents, as well as for her children and Joaquin, and her parents would have great difficulty managing on their own. Joaquin should be able to show that the cumulative effect of all these factors add up to extreme hardship for qualifying for the § 212(h) waiver. 24

See INA § 291. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) (identifying preponderance of the evidence as the standard for immigration benefits generally, in that case naturalization). 26 See Bueno-Carrillo v. Landon, 682 F.2d 143, 146 n.3 (7th Cir. 1982). 27 See Prapavat v. INS, 638 F.2d 87, 89 (9th Cir. 1980) (holding that extreme hardship may be satisfied by aggregating hardship to multiple family member, even if the hardship to one family member is insufficient), reheard, 662 F.2d 561, 562-63 (9th Cir. 1981)(per curiam)(finding the BIA had failed to aggregate hardships to multiple family members). 25

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Proving extreme hardship to a qualifying relative will not automatically result in approval of the waiver, unless the adjudicator also determines that the applicant is deserving of a positive exercise of discretion. 28 See §§ 6.6 and 6.7 below. Nevertheless, if you are able to make a compelling showing of extreme hardship to qualifying relatives, a good part of the burden of proving that your client should be granted relief in the exercise of discretion will be met. PRACTICE TIP: Remember, hardship to a family member is just one way to qualify for the § 212(h) waiver. The next three sections outline possible ways to qualify that don’t require a hardship showing. B.

The Person Is Only Inadmissible for Prostitution or Procuring Prostitution [INA § 212(h)(1)(A)]

Another way to qualify for the § 212(h) waiver is if the person is inadmissible only for prostitution or procuring prostitutes under INA § 212(a)(2)(D)(i) or (ii). If your client is inadmissible under the “procuring prostitution” ground, determine whether it is an aggravated felony under INA § 101(a)(43)(K). An aggravated felony conviction will bar some, but not all, permanent residents from applying for § 212(h). See § 6.4. Someone who is found inadmissible under the prostitution grounds must demonstrate that his or her admission to the United States would not be contrary to national welfare, safety, or security, and, in addition, that he or she has been rehabilitated. 29 The person is not required to prove extreme hardship to a qualifying relative; compare this to Subsection A, above. Obviously, the more recent the offense, the more difficult it will be to show that your client has been rehabilitated, and this is a key factor in any § 212(h) application. In addition, as with someone applying for the waiver based on a family relationship, establishing these elements alone is not sufficient for a grant. The discretionary nature of this waiver still requires showing positive equities. See §§ 6.6 & 6.7 below. C.

The Action or Event for Which the Applicant Is Inadmissible Occurred More than 15 years ago [INA § 212(h)(1)(A)]

An offense that meets this eligibility criteria—one that occurred more than 15 years ago—must still be one of the offense listed as waivable under § 212(h). It does not cover other types of inadmissible offenses. For example, it does not apply to a controlled substance offense apart from a single incident involving a small amount of marijuana. Under the wording of the statute, the time from which to count the 15 years should be the date the offense in question was committed, rather than the conviction date, if any. 30 As with the prostitution grounds, the person must prove that his or her admission to the United States would not be contrary to national welfare, safety, or security, and that he or she has been 28

Matter of Mendez-Morales, 21 I&N Dec. 296 (BIA 1996). See Chapter 4, § 4.6, Subsection B, for a discussion on rehabilitation, and Chapter 10, § 10.8, describing how you show it. 30 INA § 212(h)(1)(A)(i) states, in relevant part: “the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status” [emphasis added]. 29

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rehabilitated. Rehabilitation should be relatively easy to prove, given the 15-year time period, unless your client has other, non-inadmissible offenses that are recent, or a history of bad behavior that did not necessarily result in a conviction. Again, the person does not have to show extreme hardship to a qualifying relative. D.

The Person Is a VAWA Self-Petitioner [INA § 212(h)(1)(C)]

Section § 212(h) also is available if “the alien is a VAWA self-petitioner.” The immigration VAWA (Violence Against Women Act) provisions provide a way to immigrate for certain persons who are the abused spouses, parents, or children of U.S. citizens or lawful permanent residents. 31 A person may apply for VAWA cancellation of removal (also referred to as “special rule cancellation of removal”), or may “self-petition” by filing a visa petition for oneself, based on the relationship with the abuser. See INA §§ 204(a)(1)(A), (B), and 240A(b)(2). Note that the § 212(h) waiver is only available to self-petitioners, not to applicants for special rule cancellation of removal. The Ninth Circuit has held that an applicant for special rule cancellation of removal under INA § 240A(b)(2) is not a “VAWA self-petitioner” for purposes of qualifying for the § 212(h) waiver. Garcia-Mendez v. Lynch, 788 F.3d 1058 (9th Cir. 2015). Once a VAWA self-petitioner obtains an approved petition and has an immigrant visa immediately available, she may seek adjustment of status in conjunction with a § 212(h) waiver. Although it would be unusual for a permanent resident to re-apply for permanent residence as a VAWA self-petitioner, it might be done as a defense to removal if the person has been abused and she does not meet the other basic eligibility requirements for simple adjustment. Most notably, the VAWA self-petitioner is not required by the statute to prove extreme hardship to a family member or even rehabilitation, although of course these both serve as key positive equities that would favor the applicant as a matter of discretion. § 6.4

Restrictions on § 212(h) Eligibility for Certain Lawful Permanent Residents

Some lawful permanent residents are subject to two additional restrictions on their eligibility for the § 212(h) waiver. Working with these restrictions requires close attention to a somewhat convoluted statute, so we will reprint the section here for your reference. Section 212(h)(2) provides in pertinent part: No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.

31

For more information on who qualifies as a VAWA self-petitioner, please see ILRC’s publication: The VAWA Manual: Immigration Relief for Abused Immigrants (www.ilrc.org).

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In sum, people who previously were admitted at a port of entry as permanent residents cannot apply for a § 212(h) waiver if either (a) they failed to reside continuously in lawful status in the U.S. for seven years before initiation of removal proceedings, or (b) they were convicted of an aggravated felony after having been admitted at a port of entry as a permanent resident. The LPR bar to § 212(h) applies to convictions that pre-date the effective date of the amended statute (September 30, 1996), as long as the application for the waiver takes place after the effective date. See U.S. v. Gonzalez, 429 F.3d 1252 (9th Cir. 2005). This section will address two questions. First, which permanent residents are subject to the LPR restrictions? Second, if an LPR is subject to the restrictions, how do the restrictions apply? A.

Which Permanent Residents Are Subject to § 212(h) LPR Restrictions

After extensive litigation, the BIA agreed to accept the view of the majority of federal circuit courts and held that only a limited group of lawful permanent residents are subject to the § 212(h) restrictions. 32 It held that permanent residents are subject to these restrictions only if they have (a) a prior admission (b) as a permanent resident (c) at a U.S. border or border equivalent, e.g., airport. This includes all persons who immigrated by consular processing, but does not include all persons who immigrated by adjusting status in the U.S. Matter of J-H-J- clarified that a § 212(h) waiver is available to applicants who adjusted status after a lawful entry in non-immigrant status, such as entering with a tourist visa or H1-B. Why do courts require a prior, physical admission at the border as a permanent resident? Nine circuit courts of appeals 33 found that this is the plain meaning of the statute, because of its double use of the term “admission.” Section 212(h)(2) states that the restrictions apply to “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence” (emphasis supplied.) The phrase “alien lawfully admitted for permanent residence” means a person who is a permanent resident. INA § 101(a)(20). Courts held that the phrase “has previously been admitted to the United States” must have a separate, additional meaning, because under rules of statutory construction, courts may not assume that Congress included superfluous language in a statute. The courts held that the phrase means that the person, while a permanent resident, must have been admitted into the U.S. at a border or border equivalent. That is why simply adjusting status to permanent residency while inside the U.S. does not trigger the LPR bars, while being admitted into the U.S. after consular processing does. See discussion in Matter of J-H-J, 26 I&N Dec. at 564-65. This language provides real limits as to who is subject to the § 212(h) restrictions. In fact, it would appear that only two groups of people are subject to the bars. First, people who immigrated through consular processing are subject, because the initial admission to the U.S. on the permanent resident visa counts as a prior admission as a lawful permanent resident. Second, it 32

Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015). In prior decisions the Board had held that the LPR restrictions applied to all permanent residents, including those who entered without inspection and subsequently adjusted status. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010); Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012). In Matter of J-H-J- the Board withdrew those decisions, to hold that only permanent residents who had a previous admission as a permanent resident at a port of entry are subject to the restrictions. Matter of J-H-J, 26 I&N Dec. at 564-65. 33 See case citations at Matter of J-H-J, 26 I&N Dec. at 564.

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appears that someone who previously traveled outside the U.S. while a permanent resident, and rather than being treated as a returning permanent resident had to apply for re-admission upon her return (because she came within an exception listed at § 101(a)(13)(C)), also will be subject to the restrictions in the future (but not on that very trip). We’ll explore this in a series of examples. 1. Consular processing compared to adjustment of status All authorities agree that a person who is admitted to the United States on a permanent resident visa following consular processing is subject to the § 212(h) restrictions. Authorities also agree that adjustment of status by itself does not subject an LPR to the restrictions, because it is not a literal admission at the border. See discussion and cases in Matter of J-H-J, at 564-65. This is true despite that fact that in some other legal contexts, pursuant to other sections of the INA, adjustment is treated as equivalent to an admission. 34 Example 1: Kelly entered the U.S. without inspection. She later married a U.S. citizen and went through consular processing to obtain an immigrant visa. Upon her return to the U.S., she was admitted to the U.S. as a permanent resident at the Dallas airport (a border equivalent). If she ever needs to apply for § 212(h), she will be subject to the LPR restrictions because she has a prior admission at the U.S. border as a lawful permanent resident. Example 2: Carolina entered the U.S. on a border crossing card. She later married a U.S. citizen and adjusted her status to that of a lawful permanent resident at the Denver USCIS office. She has not left the U.S. since then. She is not subject to the LPR restrictions because she does not have a prior admission at the border as a permanent resident. Her prior admission at the border was on a border crossing card, not as a permanent resident. Her adjustment of status was not an admission at the border. The same would be true if Carolina had entered without inspection before adjusting status (for example, adjusting pursuant to § 245(i), asylum, or other relief). She never has been admitted at the border as an LPR, so she is not subject to the restrictions. 2. Conditional permanent residents The restriction against a § 212(h) waiver applies to those who have been “lawfully admitted for permanent residence,” which is the definition of a lawful permanent resident. See INA § 101(a)(20). The BIA has held that the restriction applies equally to those who have entered the United States as conditional permanent residents. 35 The Board reasoned in Matter of Ka A. Paek, that “[t]he plain language of section 216 of the Act establishes that an alien admitted as a conditional permanent resident is ‘lawfully admitted for 34

For example, a person who entered without inspection and then adjusts status is subject to the grounds of deportability, rather than the grounds of inadmissibility, because the adjustment is held to serve as equivalent to an “admission” in that context. See, e.g., Matter of Rosas-Ramirez, 22 I&N Dec. 616 (BIA 1999). 35 Matter of Ka A. Paek, 26 I&N Dec. 403 (BIA 2014), aff’d Paek v. Att’y Gen. of the U.S., 793 F.3d 330 (3rd Cir. 2015).

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permanent residence’ as defined in section 101(a)(20) of the Act” because that provision explicitly refers to spouses and children receiving conditional permanent resident status as being “lawfully admitted for permanent residence.” 36 The Board further reasoned that the terms “alien spouse” and “alien son or daughter,” which are defined in INA §§ 216(h)(1) and (2), include “an alien who obtains the status of an alien lawfully admitted for permanent residence (whether on a conditional basis or otherwise).” 37 Additionally, the Board pointed to the naturalization provision at INA § 216(e), which “specifies that an alien admitted as a conditional permanent resident ‘shall be considered to have been admitted as an alien lawfully admitted for permanent residence and to be in the United States as an alien lawfully admitted to the United States for permanent residence.’” 38 Finally, the Board pointed to the regulations at 8 CFR §§ 216.1, 1216.1 (2014), which explicitly afford permanent residents “the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.” 39 Thus, according to the Board, “although an alien may be admitted pursuant to section 216 on a conditional basis, under the plain language of that section, such an admission is nonetheless an admission ‘as an alien lawfully admitted for permanent residence.’” Id. at 406-07. In its decision, the Board also cited to the Third Circuit’s decision in Gallimore v. Att’y Gen. of U.S., 619 F.3d 216, 229 (3rd Cir. 2010), in which the Court reached the same conclusion in the 212(c) context. Id. Therefore, conditional permanent residents are subject to the same restrictions applicable to nonconditional permanent residents seeking to apply for a § 212(h) waiver. 3. LPRs who travel outside the U.S. after adjustment of status None of the cases addressing the LPR restrictions has involved a noncitizen who gained lawful permanent residency through adjustment and subsequently traveled outside the United States. Under the statute, the restrictions should not apply, unless the person had a prior admission at the border as a permanent resident. First, the restrictions should not be triggered by the fact that a permanent resident took a trip abroad, if she did not make a new admission upon her return. Section 212(h)(2) applies to a person “who has previously been admitted to the United States” as a permanent resident. INA § 212(h)(2) (emphasis added). Permanent residents who travel abroad are presumed not to be seeking admission upon their return, unless they fall into one of six exceptions set out in INA § 101(a)(13)(C), such as remaining outside for more than six months or traveling while inadmissible for crimes under INA § 212(a)(2). 40 Because a permanent resident who does not come within § 101(a)(13)(C) is not “admitted” to the U.S. upon his return, she should not be subject to the § 212(h) bars for LPRs. Example 3: After she adjusted status, Carolina left the U.S. briefly to visit her mother. Upon her return she was not deemed to be making a new admission because she did not fall within one of the exceptions in § 101(a)(13)(C). She was not admitted into, but rather was permitted to re-enter, the United States. Therefore, if someday Carolina needs to 36

26 I&N Dec. at 406. Id. 38 Id. (emphasis in original). 39 Id. at 407 (internal quotation marks omitted). 40 See Chapter 1, § 1.3. 37

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apply for § 212(h), this trip will not subject her to the restrictions based on having previously been admitted as an LPR. Second, the bars apply to someone “who has previously been admitted to the United States” as a permanent resident. INA § 212(h)(2) (emphasis added). Therefore, the bars should not apply to an applicant who adjusted status to permanent residency, became inadmissible for a crime, traveled outside the U.S., and now is held to be seeking admission upon her return. The permanent resident should be able to request a § 212(h) waiver in order to gain admission at the border as a permanent resident, without regard to the restrictions, because this is her first request for admission and she was not previously admitted as an LPR. Example 4: Luis adjusted status to permanent residency, and then was convicted of an offense that makes him inadmissible for a crime involving moral turpitude. Later he briefly traveled outside the U.S. to visit his father. Upon his return, border officials held that he was seeking a new admission. (This is true. Because he is inadmissible for crimes, he comes within INA § 101(a)(13)(C)(v) and is seeking a new admission). The government then paroled him into the United States and starts removal proceedings against him with a Notice to Appear, charging that Luis is an arriving alien who is inadmissible. He must apply for a waiver of inadmissibility under § 212(h) in order to be re-admitted to the U.S. Do the restrictions apply to him? Under the plain wording of § 212(h)(2), he does not come within the LPR restrictions, because he does not have a prior admission at the border as a permanent resident. Example 5: Continuing with Luis’ story, let’s say that after he visited his father, his application for § 212(h) was granted and he was admitted in the U.S. But years later, Luis is convicted of a second theft that is a moral turpitude offense. This makes him deportable 41 and inadmissible under the moral turpitude grounds. Luis is placed in removal proceedings and charged with being deportable for having committed two crimes involving moral turpitude. As a defense to removal he applies to adjust status (again) through his U.S. citizen wife. Because he is inadmissible under the moral turpitude ground, he will need another § 212(h) inadmissibility waiver to file with the application for adjustment. Is he subject to the LPR restrictions? Yes. When he returned from visiting his father, he was “admitted” at the border as a permanent resident, because he came within a § 101(a)(13)(C) exception. Thus, he now has a prior admission at a U.S. border as a permanent resident. The § 212(h) restrictions apply to him. Does that mean Luis automatically loses? No. As we will see in Subsection B, below, being subject to the restrictions simply means that the permanent resident must meet two extra requirements in order to apply for § 212(h) relief. The person must have accrued 41 Luis is deportable because he has been convicted of two crimes involving moral turpitude (“CIMT”), the one from several years ago that he waived under § 212(h) when he returned from his trip, and the new one. A prior CIMT conviction that was waived under § 212(h) or cancellation of removal will come “back to life” if the person later is convicted of another CIMT, so that the person will be deportable for two CIMT convictions since admission. See, e.g., Matter of Khourn, 21 I& N Dec. 1041 (BIA 1997), and see discussion of crimes involving moral turpitude in Chapter 2.

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seven years continuous lawful residence before removal proceedings were initiated, and the person must not have been convicted of an aggravated felony after the prior admission at the border as a permanent resident. If Luis meets both of these requirements he still can apply for a § 212(h) waiver. But if he does not, he cannot apply for § 212(h) and his adjustment application will be denied. 4. LPRs who obtained their status by fraud or mistake The BIA has held that the restrictions apply even if LPR status was obtained unlawfully, such as through misrepresentation or mistake. 42 One court applied this bar to a lawful temporary resident, although that decision appears to be in error. 43 B.

Applying the LPR Restrictions

People who have a prior admission at the border as a permanent resident face additional restrictions on eligibility for § 212(h) relief. Not only must they meet the basic qualifications for the waiver—e.g., have a qualifying relative who faces hardship, or be a VAWA self-petitioner— they must meet two additional requirements. Under § 212(h)(2), they must prove that they: • •

Have lawfully, continuously resided in the U.S. for seven years preceding the date of initiation of removal proceedings, and Have not been convicted of an aggravated felony since being admitted at the border as a lawful permanent resident.

Thus, the statute treats some permanent residents more harshly than it treats undocumented people (or other permanent residents). While this may seem unfair, federal courts repeatedly have upheld these additional requirements for lawful permanent residents. 44 The bars to § 212(h) eligibility for permanent residents were added to the INA by § 348(b) of IIRIRA, which was enacted September 30, 1996. That section states that the new requirements “shall be effective on the date of enactment of [the IIRIRA] and shall apply in the case of any alien who is in exclusion or deportation proceedings as of such date unless a final administrative order in such proceedings has been entered as of such date.” 45

42 Matter of Ayala, 22 I&N Dec. 398 (BIA 1998); see also Onwuamaegbu v. Gonzales, 470 F.3d 405 (1st Cir. 2006) and Sum v. Holder, 602 F.3d 1092, 1096 (9th Cir. 2010). Contrast this with the “permanent resident” requirement for LPR cancellation of removal, which does not recognize as permanent residents those who obtained permanent residence through fraud or mistake. See Chapter 4, § 4.3. 43 In Bonhometre v. Ashcroft, 414 F.3d 442, 449 (3rd Cir. 2005) the court appeared to apply the bar to a person who obtained lawful temporary resident status through the legalization program of the 1980’s. This appears to be a misreading of the statute and subject to challenge. 44 See De Leon-Reynoso v. Ashcroft, 293 F.3d 633 (3rd Cir. 2002), Malagon de Fuentes v. Gonzales, 462 F.3d 498 (5th Cir. 2006), Lukowski v. INS, 279 F.3d 644 (8th Cir. 2002), Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002 (9th Cir. 2002), Latu v. Ashcroft, 375 F.3d 1012 (10th Cir. 2004), and Camacho-Salinas v. U.S. Atty. Gen. 460 F.3d 1343 (11th Cir. 2006). One court has even applied the aggravated felony bar to lawful temporary residents, although that appears to be error. Bonhometre v. Ashcroft, supra. 45 See Matter of Yeung, 21 I&N Dec. 610, 612 (BIA 1997).

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1. Aggravated felony bar Section 212(h)(2) provides in part: No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if … since the date of such admission the alien has been convicted of an aggravated felony. (emphasis supplied) The definition of an aggravated felony is discussed at length in Chapter 2. As always, remember that your first line of defense for your clients is to argue that the crime in question is not an aggravated felony. Remember that due to changes in the federal “categorical approach,” an offense that previously was held to be an aggravated felony, or be divisible, may no longer be. See § 2.4. While there is no case on point, under the plain language of § 212(h)(2) the person must have been convicted of an aggravated felony after she was admitted at the border as a permanent resident (“since the date of such admission”). Therefore an aggravated felony conviction does not destroy eligibility for § 212(h) if it occurs after the person adjusted status to permanent residency, but before the person was subsequently admitted at a border or border equivalent as an LPR. Example: Steve adjusted status to lawful permanent residency. Later he was convicted of a crime involving moral turpitude that made him inadmissible and that also is an aggravated felony. In 2014, Steve took a short trip outside the U.S. Upon his return he was found to be inadmissible under § 212(a)(2) and therefore to be seeking a new admission under § 101(a)(13)(C)(v). Is Steve subject to the LPR restrictions? If so, would the aggravated felony conviction bar him from applying for a § 212(h) waiver? The response ought to be, no and no. Steven is not subject to the restrictions at all, because he does not have a prior admission as an LPR at the border. This is his first such admission. Because he is not subject to the restrictions, the aggravated felony bar does not apply to him. Even if the restrictions did apply to him, for instance after this trip, Steve was found guilty of another crime involving moral turpitude then travelled, his prior aggravated felony conviction would not bar him because it did not occur after his last admission—the date that he became subject to the § 212(h) restrictions. Assume that Steve is granted a § 212(h) waiver and admitted back to the U.S. after his 2014 trip. Later he is convicted of another moral turpitude offense that also is an aggravated felony. Now, if he is put in removal proceedings, he will be barred from § 212(h) relief. He is subject to the LPR bars due to his prior admission at the border as an LPR, and he was convicted of an aggravated felony after that admission. 2. Seven years of continuous lawful residence Permanent residents who are subject to the § 212(h) restrictions also must show seven years of lawful continuous residence in the United States before removal proceedings were initiated. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an

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aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States. INA § 212(h)(2) [emphasis added]. 46 Again, the seven-year requirement only applies to those permanent residents who are subject to the restrictions, meaning persons who were previously admitted at the border as lawful permanent residents. See the discussion at Subsection A, above, regarding which permanent residents are subject to the § 212(h) restrictions. 3. What Is Meant by Seven Years of Lawful Continuous Residence? a. Seven years as a permanent resident is not required Both the BIA and at least one court of appeals have held that the seven years of lawful continuous residence for § 212(h) eligibility need not be only in permanent resident status. Matter of Rotimi, 24 I&N Dec. 567 (BIA 2008), Yepez-Razo v. Gonzales, 445 F.3d 1216 (9th Cir. 2006). b. What other status can be used to meet the seven year requirement? In Matter of Rotimi, the BIA included the respondent’s time in valid nonimmigrant status toward the seven years.47 However, it refused to include the time the respondent spent as an applicant for asylum or adjustment of status. 48 The BIA in Matter of Rotimi declined to issue a comprehensive definition of what kinds of status would meet the seven-year requirement, reasoning that “it would be imprudent for us to attempt a comprehensive ruling that would address and resolve the many cases that are not now before us.” 49 Nevertheless it did indicate some kinds of status that should be recognized, and set forth some guidelines for analyzing whether someone’s status should count toward the seven years: Ordinarily, we would expect the privilege of residing in this country to be reflected in a recognized status such as that of nonimmigrant, refugee, or asylee, each of which is set out in the statute. Matter of Rotimi, at 576. (A)n examination of section 212(h) as it applies to lawful permanent residents within the statutory scheme supports requiring an approved application, not merely an application pending review, for lawful status or other benefit in order for residence in this country to be deemed lawful. Matter of Rotimi at 573.

46

The Ninth Circuit has held that the seven-year requirement applies prospectively to all cases in which removal proceedings were initiated on or after the provision’s enactment on September 30, 1996, regardless of the date of the underlying conviction. Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012). 47 Rotimi, at 577. 48 Rotimi, at 568. 49 Matter of Rotimi, at 571.

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In Yepez-Razo v. Gonzales, 50 published before Matter of Rotimi, the Ninth Circuit held that time in the Family Unity Program could count toward the seven years of continuous lawful residence for § 212(h) eligibility. In Matter of Rotimi, the BIA noted the Ninth Circuit’s decision, but declined to agree or disagree with it, stating: The unique nature of the Family Unity Program may qualify as well, given its statutory foundation in section 301 of the Immigration Act of 1990, and its expectation of longterm presence and ultimate regularization of status. Notably, benefits under the Family Unity Program require the filing of an application and a favorable decision on that application. See 8 CFR § 236.14 (2008). The issue of lawful residence under the Family Unity Program, however, is not currently before us, and we reject the respondent’s reliance on Yepez-Razo v. Gonzales, supra, at least to the extent it finds that “lawful” residence arises simply from the inability to deport an alien coupled with the alien’s eligibility for work authorization [granted pursuant to an application for adjustment of status]. Matter of Rotimi, at 577. 51 Based on the logic of Matter of Rotimi, practitioners can assume that the following times can count toward the seven years: • • • • •

lawful permanent residence conditional residence temporary residence valid nonimmigrant status, and asylee or refugee status

In the Ninth Circuit, practitioners should be able to rely on Yepez-Razo v. Gonzales to argue that Family Unity also counts. 52 Practitioners in other circuits should urge both the BIA and the courts of appeal to follow the Ninth Circuit’s lead in Yepez-Razo and count time in Family Unity status. Using the logic expressed in Yepez-Razo and Matter of Rotimi, practitioners can argue that a grant of withholding of removal, CAT relief, and/or TPS status should be counted, because those programs require the submission, and approval, of an application for relief, and a potentially indefinite authorized stay. Practitioners may not always prevail in such arguments, but it’s 50

445 F.3d 1216 (9th Cir. 2006). The BIA has since held that Family Unity is not an “admission” within the meaning of INA § 101(a)(13)(A). See Matter of Reza-Murillo, 25 I&N Dec. 296 (BIA 2010), disagreeing with GarciaQuintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) and clarifying Matter of Rotimi, 24 I&N Dec. 567, 576-77 (BIA 2008). The Ninth Circuit and other courts may decide to defer to the BIA on the question of admission in the future. However, the definition of admission under INA § 101(a)(13)(A) is quite different from the concept of “lawful continuous residence” under INA § 212(h), and does not control. The BIA still has not ruled on whether status in the Family Unity Program is “lawful continuous residence” for § 212(h) eligibility. See discussion of this issue in Chapter 4, § 4.4. 52 If however, the BIA ultimately disagrees with this holding, it could claim that the Ninth Circuit should give deference to its interpretation of the meaning of seven years of lawful continuous residence for § 212 (h) eligibility. See Duran-Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007), petition for rehearing denied. 51

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important to try to convince the BIA and the federal courts to interpret the seven years of lawful continuous residence for § 212(h) eligibility as expansively as possible. In Matter of Rotimi, the Board stated that the phrase “lawful continuous residence” is ambiguous and therefore that federal courts should defer to the Board’s interpretation of it, under Chevron principles. 53 At least the Second, Ninth and the Eleventh Circuit Courts of Appeals agree with this 54 and other courts are likely to. § 6.5

When Can One Use the § 212(h) Waiver?

Section 212(h) can be used by persons who are subject to the grounds of inadmissibility, including some applicants for permanent residence in consular processing or adjustment, and lawful permanent residents at the border who are seeking a new admission. It can be used by persons who are charged with being deportable to the extent that the case involves inadmissibility; for example, if the person applies for adjustment of status as a defense to removal, and needs to waive a ground of inadmissibility to adjust. The § 212(h) waiver cannot be used in conjunction with application for cancellation of removal. Likewise, despite the VAWA provision of § 212(h), the Board has held that applicants for nonLPR and special rule cancellation of removal under VAWA cannot file that application in conjunction with a § 212(h) waiver application in order to waive criminal grounds of ineligibility for the underlying cancellation of removal application. 55 A.

Applications for Admission at the Border

As we saw in Chapter 1, permanent residents are subject to the inadmissibility grounds when they are considered arriving aliens upon returning from a trip abroad under INA § 101(a)(13)(C), and also when they are applicants for re-adjustment of status. For a long time, the government took the position that permanent residents who were treated as arriving aliens under INA § 101(a)(13)(C) could only apply for a § 212(h) waiver in conjunction with an application for adjustment of status, but this position was rejected by the BIA in Matter of Abosi, 24 I&N Dec. 204 (BIA 2007). Therefore, permanent residents returning from a trip abroad who are considered arriving aliens under INA § 101(a)(13)(C) can apply for a stand-alone § 212(h) waiver, without an accompanying adjustment application. As the BIA reasoned: The respondent was initially charged with being an arriving alien upon his return to the United States. See 8 CFR § 1.1(q) (2007) (defining an “arriving alien” in pertinent part as “an applicant for admission coming or attempting to come into the United States at a port-of-entry”). However, his situation is clearly contemplated by section 101(a)(13)(C)(v) of the Act, 8 USC § 1101(a)(13)(C)(v)(2000). In cases such as this, 53

Matter of Rotimi, at 571. See, e.g., Rotimi v. Gonzales, 473 F.3d 55, 57 (2nd Cir. 2007) (remanding to the BIA to define the unclear term in the first instance); Vargas Cervantes v. Holder, 772 F.3d 583 (9th Cir. 2014); Quinchia v. United States AG, 552 F.3d 1255 (11th Cir. 2008). 55 Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011) (non-LPR cancellation); Matter of Y-N-P-, 26 I&N Dec. 10 (BIA 2012) (special rule cancellation). The Ninth Circuit has found that such an interpretation is entitled to deference. Garcia-Mendez v. Lynch, 788 F.3d 1058 (9th Cir. 2015). 54

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where the respondent is a returning lawful permanent resident charged with a ground of inadmissibility, a grant of a 212(h) waiver of inadmissibility simply eliminates the basis for his inadmissibility and leaves his lawful permanent resident status intact. See Matter of Millard, 11 I&N Dec. 175, 177-78 (BIA 1965); see also Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980). In this respect it is similar to a grant of a waiver under former 212(c) of the Act, 8 USC § 1182(c)(1988), which “returns an alien to the same lawful permanent resident status previously held.” Matter of Gordon, 20 I&N Dec. 52, 55 (BIA 1989); see also Matter of Przygocki, 17 I&N Dec. 361, 364 (BIA 1980). Consequently, there is no reason to require the respondent to reapply for adjustment of status in conjunction with a section 212(h) waiver. Matter of Abosi, at 206. B.

LPRs Returning from Abroad with Conviction(s) from before April 1, 1997

Different rules apply to a permanent resident who travels abroad while inadmissible only due to one or more convictions imposed before April 1, 1997. If you have a client in this situation, please read this section carefully. If the only reason the person comes within INA § 101(a)(13)(C), which sets out reasons an LPR is deemed seeking an admission, is one or more pre-April 1, 1997 convictions that make her inadmissible, and if the person’s trip outside the U.S. was “brief, casual, and innocent,” then the person will be deemed as not seeking a new admission upon her return. Because she is not seeking admission, she may re-enter the U.S. despite having a conviction described in the grounds of inadmissibility, and will not need to file a § 212(h) inadmissibility waiver. Generally, this is a very beneficial rule, but in relatively unusual cases it can be a disadvantage for a permanent resident. This section first will examine the rule, which the Supreme Court established in Vartelas v. Holder, 132 S.Ct. 1479 (2012). Next it will discuss how this rule can affect permanent residents in terms of § 212(h). 1. The Supreme Court’s rule in Vartelas v. Holder As we have discussed, under the statutory definition of “admission” at INA § 101(a)(13)(C), a permanent resident who returns from a trip abroad is not considered to be making a new admission into the United States unless she comes within certain statutory exceptions. These exceptions include being inadmissible under the crimes grounds at INA § 212(a)(2). INA § 101(a)(13)(C)(v). In Vartelas v. Holder, 56 the Supreme Court held that a different standard applies if the conviction that causes the LPR to be inadmissible occurred before the date that INA § 101(a)(13)(C) took effect, which was April 1, 1997. First the Court determined that applying INA § 101(a)(13)(C) to a conviction from before its effective date would retroactively impose a new disability on the old conviction, by making it impossible for the person to travel. 57

56 57

132 S.Ct. 1479 (2012). Vartelas, at 1487.

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The Court found that retroactively imposing a new disability on a conviction is improper in the case of § 101(a)(13)(C). In general, under the principle against retroactive legislation “courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity.” 58 The Court found that Congress did not unambiguously instruct retroactivity in enacting § 101(a)(13)(C). To avoid an improper retroactive penalty, the Court held that if a permanent resident, at any time, travels outside the U.S. while inadmissible due to a pre-April 1, 1997 conviction, authorities must employ the pre-April 1, 1997 definition of “entry” rather than the definition of admission at § 101(a)(13)(C), upon the person’s return. This earlier definition of entry looks solely to the nature of the person’s absence from the United States during the trip. This earlier standard is now referred to as the “Fleuti doctrine.” 59 Under the Fleuti 60 doctrine, as long as the LPR’s absence from the U.S. was “brief, casual, and innocent,” she is deemed not to be making a new entry upon her return. This standard is applied to people who travel now, with pre-April 1, 1997 convictions. Example: In 1995 Kim was convicted of an offense that made him inadmissible under the moral turpitude ground. In 2016, Kim took a three-week trip outside the U.S. to visit relatives. Under INA § 101(a)(13)(C), a permanent resident who is inadmissible for crimes seeks a new admission upon his return from a trip abroad. He may not re-enter the U.S. unless he receives a waiver of inadmissibility such as § 212(h). Is Kim seeking a new admission? No. Kim’s conviction that triggers inadmissibility is from before April 1, 1997—the enactment date of § 101(a)(13)(C). Therefore under Vartelas, we must apply the Fleuti definition of entry rather than § 101(a)(13). Kim’s return after a short trip visiting his family is not an admission under Fleuti, because his absence from the U.S. was “brief, casual, and innocent.” Therefore, Kim is not deemed to be seeking a new admission. He can re-enter the U.S. despite being inadmissible for crimes, and he does not need a waiver of inadmissibility under INA § 212(h). For further information on Vartelas, see the practice advisory on this topic by National Immigration Project. 61 2. How the Vartelas rule affects application of § 212(h) The Vartelas rule affects § 212(h) in various ways. On the positive side, if Vartelas applies, then the permanent resident returning from a trip abroad is not seeking a new admission and does not have to apply for § 212(h) at all. This was the case in the Kim example, above. Further, because he is not making a new “admission,” the person has not been “previously admitted” at the border as a permanent resident based on this entry. Therefore, the person should not be subject to the LPR restrictions on § 212(h) if she ever should need to apply for a § 212(h) waiver in the future. See discussion of the LPR restrictions at § 6.4, above.

58

Vartelas, at 1486. Rosenberg v. Fleuti, 374 U.S. 449 (U.S. 1963). 60 See discussion of Rosenberg v. Fleuti, 374 U.S. 449, 460-461 (U.S. 1963) in Vartelas at 1484-85. 61 See Vargas, et al., “Vartelas v. Holder: Implications for LPRs” (April 5, 2012) at www.nationalimmigrati onproject.org/legalresources/practice_advisories/cd_pa_Vartelas_Practice_Advisory.pdf. 59

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On the negative side, Vartelas may prevent some permanent residents who are not able to file an application for adjustment of status from being able to apply for a § 212(h) waiver at all, because it may prevent them from applying for it at the border, and the border is the only place that they can apply for the waiver. Example: Sarah, a permanent resident, is both inadmissible and deportable for crimes involving moral turpitude, based on convictions from 1995. She does not have a family member who could file an immediate relative petition for her. In 2017, she leaves the U.S. for a month on business. If upon her return she were able to apply for a § 212(h) waiver at the border, she could get the 1995 convictions waived and she would no longer be considered inadmissible or deportable for these offenses. Under Vartelas, however, she is not making an application for admission when she returns from her brief business trip, and therefore cannot apply for a § 212(h) waiver at the border. But once in the U.S., she can be charged as deportable for having committed two CIMTs. If she is charged with being deportable in removal proceedings, she will not be able to apply for a § 212(h) waiver unless she is able to also apply for adjustment of status. See discussion of Matter of Rivas at Subsection D, below. Note that Sarah might be eligible for some other form of relief, such as LPR cancellation of removal or, in most but not all cases with a pre-April 1, 1997 conviction, a waiver under INA § 212(c). See discussion of LPR cancellation in Chapter 4 and § 212(c) relief in Chapter 5. C.

Applicants for Adjustment of Status, Whether Filed Affirmatively or as a Defense to Removal

A permanent resident who is deportable can apply for adjustment of status as a defense to removal. If the adjustment of status application is approved, the deportability charge will be forgiven. Matter of Rainford, 20 I&N Dec. 598 (BIA 1992). An adjustment of status application can be filed alone or in conjunction with a waiver of inadmissibility, including when adjustment serves as a defense to removal. Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993) (§ 212(c) waiver), Matter of Rivas, 26 I&N Dec. 130 (BIA 2013) (§ 212(h) waiver). For further discussion of adjustment of status as a defense to removal, see Chapter 8, § 8.3. Section 212(h) can be used in conjunction with an adjustment application that is filed affirmatively, or as a defense to a charge of deportability or inadmissibility. See Matter of Rivas, supra, and see INA § 212(h)(2), providing that the waiver can be used in “applying or reapplying for a visa, for admission to the United States, or adjustment of status.” Note that a permanent resident who is found to be seeking a new admission upon return from a trip abroad may file a § 212(h) application even without an adjustment application. See Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) and see Subsection A, above.

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D.

Deportable Permanent Residents Who Cannot File an Adjustment Application

The BIA has held that a permanent resident who is charged with deportability in removal proceedings cannot apply for a § 212(h) waiver unless the person also is applying for adjustment of status. 62 In Matter of Rivas, the Board overturned a prior beneficial rule, which was that a permanent resident who could have applied for § 212(h) at the border, but who mistakenly was not charged with inadmissibility there, could apply for § 212(h) nunc pro tunc as a defense to a subsequent charge of deportability, even without an adjustment application. 63 Federal courts considering the matter have differed, sometimes in multiple conflicting decisions within the same circuit, but ultimately have deferred to or agreed with the BIA in finding that a lawful permanent resident can no longer file a § 212(h), standing alone, to overcome a charge of deportability. 64 Advocates who may take on the uphill battle of arguing that Rivas is wrongly decided and Sanchez is still good law should see discussion below, in Subsection 1. Advocates in all circuits can consider arguing that the new rule in Matter of Rivas should be applied only prospectively, to convictions that occurred after its publication date of June 20, 2013. Courts have not considered this argument. See Subsection 2. 1. Arguing that Rivas is wrongly decided and Sanchez still should apply This brief discussion of Rivas describes the problem facing a § 212(h) applicant, and considers arguments that might be used to argue that the decision in Rivas is not permissible. As always, even if the odds are that a viable argument will end up losing in the courts, making the argument can provide some practical advantages to the client. Among other things, it can provide time to try to vacate the conviction in in criminal court, pursue eligibility for other relief, or just wind up affairs here. If the conviction at issue occurred on or before June 20, 2013, also see Subsection 2. A permanent resident who returns from a trip abroad, and who comes within one of the categories at INA 101(a)(13)(C), is deemed to be seeking a new admission. If she is inadmissible, she will be admitted only if the ground is waived. All authorities agree that a permanent resident in this position can apply for a § 212(h) waiver at the border, without having to also file an application for adjustment of status. See Matter of 62

Matter of Rivas, 26 I&N Dec. 130 (BIA 2013); see also Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) (“the respondent is ineligible for a section 212(h) waiver of inadmissibility because he is not an arriving alien and he is not seeking a waiver in conjunction with an application for adjustment of status” but finding that his prior adjustment of status did constitute an “admission” for the purpose of making him removable for having been convicted of an aggravated felony after admission), reversed on other grounds, Chavez-Alvarez v. Att’y Gen. U.S., 783 F.3d 478 (3rd Cir. 2015). 63 See Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), disapproved by Matter of Rivas. 64 See Fayzullina v. Holder, 777 F.3d 807, 816 (6th Cir. 2015); Palma-Martinez v. Lynch, 785 F.3d 1147 (7th Cir. 2015); Mtoched v. Lynch, 786 F.3d 1210 (9th Cir. 2015); Rivas v. United States AG, 765 F.3d 1324 (11th Cir. 2014).

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Abosi, supra, and discussion at Subsection A, above. But what happens if border authorities make a mistake and do not realize that an LPR returning from a trip should be deemed seeking admission? If they mistakenly allow the permanent resident to re-enter the U.S., the resident now can be charged with being deportable for having been inadmissible at last entry, under INA § 237(a)(1). Or, the resident might be charged with being deportable under the crime grounds of deportation based on the same conviction that made her inadmissible. If the issue had been correctly handled at the border, the person could have applied to waive the conviction under § 212(h), and would not be deportable now. Until recently, a permanent resident could fix the problem by applying for a § 212(h) waiver in removal proceedings to waive the inadmissibility ground back to the time of admission (nunc pro tunc). This was permitted not just if the person was charged with being deportable for being inadmissible at last entry (INA § 237(a)(1)), but also for a charge of being deportable for the conviction (INA § 237(a)(2)), so long as he was inadmissible because of the same facts that made him deportable. Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), Matter of Parodi, 17 I&N Dec. 608 (BIA, 1980), Matter of Lett, 17 I&N Dec. 312 (BIA 1980). No adjustment application was required. Matter of Sanchez. 65 Under the Sanchez rule, applying for § 212(h) nunc pro tunc in removal proceedings has been a crucial form of relief for permanent residents who were not eligible for LPR cancellation, and did not have the immediate relative visa petition required for adjustment. Example: In 2008, LPR Sally was convicted of a felony theft offense that made her inadmissible and deportable as a crime involving moral turpitude. Last year she took a brief trip outside the U.S. On her return, border authorities could and should have found that she was seeking a new admission under § 101(a)(13)(C), and was inadmissible. At that time, she could have applied for a § 212(h) inadmissibility waiver to waive her conviction. If the waiver had been granted, she would no longer have been inadmissible or deportable based on the conviction. Instead, the authorities mistakenly let Sally re-enter the U.S. Now she has been placed in removal proceedings, charged with being deportable for (a) having been inadmissible at last entry and (b) coming within the moral turpitude deportation ground. She can’t apply for adjustment of status because she does not have a relative to file for her. Under the prior application of 212(h), she could apply for § 212(h) nunc pro tunc, as if she still were at the border, and she would not be deportable or inadmissible if the waiver was granted. Some courts went further and held that a permanent resident like Sally could apply for § 212(h) as a “stand-alone” remedy in removal proceedings, even if she had not left the United States and was not applying nunc pro tunc to a prior entry at the border. This was based on an equal protection argument that arose in the context of § 212(c) cases, where several courts and the BIA found that the fact that a person had happened to travel outside the U.S. was too inconsequential to determine whether they could apply for substantive relief. (See discussion of § 212(c) in

65

See also Matter of Tanori, 15 I&N Dec. 566 (BIA 1976), cited in Matter of Sanchez.

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Chapter 5). In the Eleventh Circuit, two decisions held that the same doctrine should apply equally to the § 212(h) waiver. 66 In Matter of Rivas, the BIA held that Matter of Sanchez was overturned by a 1990 amendment to § 212(h) and other factors, and disallowed the practice of permitting an LPR to apply for § 212(h) as a defense against a charge of deportability absent an accompanying adjustment application. 67 Under Matter of Rivas, an LPR like Sally cannot apply for 212(h) in removal proceedings as a “stand alone” waiver. As discussed above, the Second, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuit Courts of Appeals have deferred to, or agreed with, the BIA. Advocates can make strong arguments that Matter of Rivas is poorly reasoned and comes to the wrong conclusion. The discussion in Margulis v. Holder, 725 F.3d 785 (7th Cir. 2013) and in particular Lawal v. Holder, 710 F.3d 1288 (11th Cir. 2013), may provide outlines for this. The problem advocates may face is that while a court might agree that Rivas is not the best result, it may be loath to find that the BIA’s decision is so unreasonable that it should not be given Chevron deference. A few arguments to investigate may include the following: First, in the 2013 Rivas decision, the BIA relied upon an amendment to § 212(h) that occurred in 1990, although the language of the 1990 amendment does not compel the Board’s conclusion. The Board did not supply much reasoning. Regarding the 1990 amendment, the Board stated only that: Prior to the amendment, section 212(h) provided a waiver for certain exclusion grounds where the “Attorney General … has consented to the alien’s applying or reapplying for a visa and for admission to the United States.” Section 212(h) of the Act, 8 USC § 1182(h) (1988) (emphasis added). The 1990 amendment stated that the waiver is available where the alien is applying or reapplying “for a visa, for admission to the United States, or adjustment of status.” Section 212(h)(2) of the Act, 8 USC § 1182(h)(2) (Supp. II 1990). Matter of Rivas, at 131 (emphasis in original). Second, the Board stated that Matter of Sanchez must be overruled based on an adjustment of status regulation, 8 CFR 1245.1(f), that provides that § 212(h) and other waivers may only be applied for in conjunction with adjustment of status. But as the Seventh and Eleventh Circuits pointed out, “[t]he Board’s reliance on this regulation is very strange, since materially identical language has appeared in regulations since at least 1964, see 29 Fed. Reg. 11493 (Aug. 11, 1964)—more than fifteen years before the Sanchez decision, and before other decisions as well in which the Board has deemed applicants eligible for nunc pro tunc relief under section 212(h).” 68 Third, the BIA cites the Supreme Court decision in Judulang in support of its decision. See Rivas, at 133. Advocates can consider whether in fact Judulang should be held to support the Board’s view. Judulang is discussed in Chapter 5. The case held that the BIA’s “comparable-grounds” approach, that is, “evaluat[ing] whether the ground for deportation charged in a case has a close 66 See, e.g., Yeung v. INS, 76 F.3d 337 (11th Cir. 1995) and Lanier v. United States AG, 631 F.3d 1361 (11th Cir. 2011). 67 26 I&N Dec. 130 (BIA 2013). 68 See Margulis v. Holder, 725 F.3d 785, 788 (7th Cir. 2013), also citing Lawal v. U.S. Attorney General, 710 F.3d 1288, 1292-93 and n. 7 (11th Cir. 2013) (per curiam).

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analogue in the statute’s list of deportation grounds,” was arbitrary and capricious under the Administrative Procedure Act. Judulang, at 481, 484. In reaching that conclusion, the Board applied basic rules of administrative law. It reasoned: “By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned matter.” Id. at 484. Therefore, contrary to the Board’s characterization of Judulang in Rivas, Judulang does not stand for the proposition that granting a § 212(h) waiver nunc pro tunc would be a violation of the Equal Protection Clause. Arguably, Judulang only highlights that it is Rivas that makes an arbitrary distinction between when a waiver of inadmissibility is available pursuant to § 212(c) versus § 212(h). 2. Arguing that Matter of Rivas should be applied prospectively only, to convictions after June 30, 2013 See Subsection 1 for a discussion of the longstanding rule in Matter of Sanchez, 17 I&N Dec. 218 (BIA 1980), which under certain circumstances permitted a permanent resident to apply for a § 212(h) waiver of inadmissibility in removal proceedings based on deportability, even without an application for adjustment of status. The BIA overturned Matter of Sanchez in Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). Several courts have deferred to the BIA in Matter of Rivas, holding that the decision is reasonable enough to stand. See Subsection 1. But federal courts have not considered the issue of whether Matter of Rivas should be applied only prospectively, to convictions that occurred after its publication date of June 20, 2013. Where that type of conviction is at issue, advocates may explore this argument. In some civil cases, a federal court or agency that announces a new rule is not permitted to apply that rule retroactively to cause new disabilities to flow from a past event, such as a past guilty plea or commercial contract. Instead the rule only may be applied prospectively, to future events. The Supreme Court set out guidelines as to when a court should consider prospective-only application of a rule. See Chevron Oil Co. v. Huson, 404 U.S. 97 (U.S. 1971). As the Ninth Circuit summarized: We glean from this jurisprudential history the following rule of law: We apply the threepronged test outlined in Chevron Oil (1) in a civil case; (2) when we announce a new rule of law, as distinct from applying a new rule that we or the Supreme Court previously announced; (3) and when the new rule does not concern our jurisdiction. Nunez-Reyes v. Holder, 646 F.3d 684, 691 (9th Cir. 2011) (en banc), citing Chevron Oil Co. v. Huson, 404 U.S. 97 (U.S. 1971). If a case meets the above criteria, then the court will apply the three-pronged test: The three Chevron Oil factors are: (1) whether the decision “establish[es] a new principle of law”; (2) “whether retrospective operation will further or retard [the rule’s] operation”

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in light of its history, purpose, and effect; and (3) whether our decision “could produce substantial inequitable results if applied retroactively.” Nunez-Reyes, at 692 (9th Cir. 2011), citing Chevron Oil Co., at 106-107 (internal quotation marks omitted). Arguably the Rivas decision meets all of these criteria. The Matter of Sanchez rule was regularly applied until the BIA changed the rule in Matter of Rivas in 2013. See Matter of Alyazji, 25 I&N Dec. 397, 403 (BIA 2011) (referring to potential outcome that those who entered without inspection and then adjusted status would be in a better position to apply for a § 212(h) waiver than those who entered as permanent residents, as “senseless”). Matter of Rivas is a new rule, based on the BIA’s changed interpretation of a 1990 statute, that will statutorily bar LPRs from a § 212(h) waiver. See further discussion in these issues in, e.g., Nunez-Reyes, supra (holding that its new interpretation of INA § 101(a)(48)(A) applies prospectively only to convictions after date of decision); Miguel-Miguel v. Gonzales, 500 F.3d 941, 947 (9th Cir. 2007) (holding that Matter of Y-L-, A-G-, and R-S-R, 23 I&N 270 (A.G. 2002), which overruled Matter of S-S-, 22 I&N Dec. 458 (BIA 1999), applies prospectively to convictions after date of decision). § 6.6 A.

Discretion in § 212(h) Cases

Matter of Mendez

Like all waivers, decisions on § 212(h) cases are discretionary. Normally, however, one would expect that if someone met the threshold criteria, such as extreme hardship to a statutory relative, then the waiver would most often be granted. 69 While this is generally true with respect to waivers for misrepresentation under INA § 212(i) and for unlawful presence under § 212(a)(9)(B)(v), the BIA explicitly rejected this approach for § 212(h) cases: This approach has no application to relief under section 212(h) of the Act. A waiver of inadmissibility under section 212(h) necessarily involves at least one adverse consideration, specifically the criminal conviction or activity constituting the ground of exclusion sought to be waived. See Matter of Marin, supra, at 585. Thus, there can be no presumption that relief is warranted in the exercise of discretion. Further, this criminal conviction or activity would usually be more severe than any adverse factor present in the application for adjustment of status, presuming admissibility and general eligibility for adjustment of status. Matter of Mendez, 21 I&N Dec. 296 (BIA 1996), at 300. The BIA therefore reasoned that it should apply the principles outlined in Matter of Marin, 70 the seminal case for § 212(c) relief, to § 212(h) waiver cases. 71 In so doing, the Board explicitly stated that a § 212(h) waiver could be denied on discretion alone, even without express rulings regarding statutory eligibility:

69

See, for example, Matter of Arai, 13 I&N Dec. 494 (BIA 1970), and Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976). 70 16 I&N Dec. 581 (BIA 1978). 71 Matter of Mendez, at 300.

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We emphasize that establishing extreme hardship and eligibility for section 212(h)(1)(B) relief does not create any entitlement to that relief. Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. We would note, however, that an application for discretionary relief, including a waiver under section 212(h), may be denied in the exercise of discretion without express rulings on the question of statutory eligibility. Matter of Mendez, at 301. B.

Relevant Criteria for Determining Favorable Exercise of Discretion

In Matter of Mendez, the BIA referred to the criteria for § 212(c) cases set forth in Matter of Marin. That case, as you may recall from Chapters 4 and 5, required a balancing of equities, in which the favorable factors in a particular applicant’s case are weighed against the adverse factors. The Board identified the relevant factors to be considered in determining whether or not to grant relief: Favorable Considerations: •

family ties within the United States,

•

residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the respondent and his family if deportation occurs, service in this country’s armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character.

• • • • • • •

Adverse Considerations: • • • •

nature and underlying circumstances of the exclusion or deportation ground at issue, presence of additional significant violations of this country’s immigration laws, existence of a criminal record and, if so, its nature, recency, and seriousness, presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country.

Matter of Marin, at 584-85. In some respects, the application of the Matter of Marin criteria to § 212(h) waivers may be advantageous to your clients. For one thing, they permit the consideration of evidence of the applicant’s hardship, long term residence, employment history, etc. These factors would not be as easily introduced if they could only be addressed in conjunction with the hardship to a statutory family member. Using the Matter of Marin criteria allows practitioners to introduce a wide range of evidence that otherwise might be considered irrelevant. Example: Alicia has been an LPR for 20 years, since the age of 3. She is married and has 2 children. She was convicted of welfare fraud in 2001. She applied for welfare at the

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time because she was separated from her husband and afraid she would lose her apartment because she could not pay the rent. In addition to her immediate family, Alicia also takes care of a niece and nephew whose parents are in jail due to drug abuse. After Alicia’s sister and brother-in-law went to jail for drug use, Alicia began volunteering for an organization that counsels at risk teens. Her colleagues at the organization would be severely impacted if she were deported, and some of the teens she counsels have said that without her, they would certainly have become involved in drugs, gangs, or both. Alicia’s contributions to her community are relevant to her § 212(h) waiver application under Matter of Mendez. Because she has such outstanding equities, she probably stands a better chance of being granted than if she could only show hardship to her husband and biological children. The Matter of Marin criteria for § 212(c) cases, incorporated into § 212(h) by Matter of Mendez, are discussed in more detail in Chapter 5, § 5.10. Take a look at that section, but note also that the analysis for § 212(h) and § 212(c) cases is not exactly the same, though it is very similar. See the discussion below for the differences. C.

The Role of Remorse and Rehabilitation in § 212(h) Cases

In Matter of Mendez, the respondent had claimed that he was innocent of sexually abusing a minor, a crime for which he had been convicted by a jury. The Board stated that it did not hold that “an alien who claims innocence and does not express remorse could never present persuasive evidence of rehabilitation by other means.” Nevertheless, the Board also found that it had to accept the guilt of the respondent because it would not “go beyond the judicial record to determine the guilt or innocence of an alien.” The Board then found that the respondent’s protestation of innocence was inconsistent with the jury verdict, and therefore denied his application for relief. 72 Therefore as a practical matter, it would be unwise for any client to assert innocence in a case where he has already been convicted of crime because of the risk that his assertion of innocence would be weighed against him, as in Matter of Mendez. The concern for the court in such cases is that the applicant lacks remorse for his actions. In Matter of Mendez, there was substantial evidence of hardship to the respondent’s U.S. citizen wife and children, including information that they had had to go on welfare, that his wife was limited in her ability to be employed because of an injury, and that she was suffering from depression and had considered suicide. However, the crime was a sexual assault against a 13year-old girl, so the crime was particularly egregious. 73 The nature of the crime, and the fact that

72

Matter of Mendez, at 305. This case was decided before April 1, 1997; the bar to eligibility for § 212(h) for LPRs or former LPRs with aggravated felony convictions, which was imposed by IIRIRA, had not yet gone into effect. 73

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the respondent did not show remorse, were the deciding factors in the Board’s decision to deny relief, despite the substantial equities in the applicant’s favor. 74 § 6.7 A.

Discretion in Violent or Dangerous Offenses

Matter of Jean and 8 CFR § 212.7(d)

We saw in Chapter 5 that, in § 212(c) cases, the applicant was required to demonstrate “unusual or outstanding equities” if the crime in question is particularly serious, or if the person has a history of serious criminal misconduct. 75 In § 212(h) cases, there is a similar hurdle to overcome. The crime in question must not be considered violent or dangerous under the standard elicited in Matter of Jean, 23 I&N Dec. 373, 383 (A.G. 2002) and in the regulation at 8 CFR § 212.7(d). 76 The regulation states that: The Attorney General, in general will not favorably exercise discretion under section 212(h)(2) of the Act … with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous offenses, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application … would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act. 8 CFR § 212.7(d). This is obviously an exceedingly harsh standard. Advocates should argue that 8 CFR § 212.7(d) is ultra vires (exceeds the requirements of the law) and therefore is invalid. However, federal courts have upheld this regulation, notwithstanding such arguments. 77 In Mejia v. Gonzales, the Ninth Circuit held that: The regulation does not alter or supersede the “extreme hardship” standard. Rather, the regulation supplements and gives definition to the standard to be applied in the cases of individuals who have committed violent or dangerous crimes. The Attorney General, in the exercise of his discretion, suggests that the equities disfavor, although do not

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But see Lam v. Holder, 698 F.3d 529 (7th Cir. 2012) (reversing IJ’s and BIA’s negative exercise of discretion in denying § 212(h) waiver where the finding that the applicant failed to prove rehabilitation was based on a mischaracterization of the record). 75 Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). 76 Matter of Jean was an asylee adjustment case, but the regulation applies this standard to all adjustment cases. 77 See Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007), which was followed in Pimentel v. Mukasey, 530 F.3d 321 (5th Cir. 2008) and Samuels v. Chertoff, 550 F.3d 252 (2nd Cir. 2008). See also Ciceneros v. Lynch, 834 F.3d 857 (7th Cir. 2016) Romanishyn v. Attorney General of United States, 455 F.3d 175, 182 (3rd Cir. 2006).

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preclude, relief in this circumstance. Given Congress’s broad grant of discretion, this approach is not inconsistent with the statute or the Attorney General’s authority. Mejia v. Gonzales, at 996. Advocates should at least challenge the applicability of this regulation to acts committed, or convictions entered before December 26, 2002 when the regulation went into effect, although this argument, too, was rejected in Mejia v. Gonzales, Pimentel v. Mukasey, and Samuels v. Chertoff. B.

What Is a Violent or Dangerous Offense?

The Attorney General offered no definition of the term “violent or dangerous crime” in 8 CFR § 212.7(d). In the absence of further definition, advocates can point to the holding in Matter of Jean. The crime at issue in that case was the violent shaking and beating of an infant and failing to call for emergency medical care when the infant fell into a coma, resulting in the infant’s death, a truly horrific crime. In addition, in Matter of Jean the Attorney General also expressly overruled Matter of H-N, 78 in which an individual was granted asylee adjustment with a waiver, despite having been convicted of participating in an armed robbery in which a parent was shot to death in front of her children. Advocates may also look to the definition of a crime of violence in 18 USC § 16, and argue that the client’s conviction does not meet this definition. This is the definition used to determine what constitutes a “crime of violence” as an aggravated felony in INA § 101(a)(43)(F). In addition, the Supreme Court in Leocal v. Ashcroft 79 held that an offense is not a crime of violence if the person may be convicted simply on a showing of negligence or less than intentional conduct. The crime at issue in that case was driving under the influence and causing serious bodily injury. Practitioners should also look to case law holding that simple assault or battery are not necessarily crimes of violence, for example Matter of Sanudo, 80 which held that spousal battery was not necessarily a crime of violence, or Popal v. Gonzales, 81 finding that simple assault was not a crime of violence. Nevertheless, practitioners should be cautious about relying too heavily on case law defining crimes of violence. While cases defining when a crime is an aggravated felony as a crime of violence are helpful in mustering arguments against a finding that someone has committed a violent crime, the standard set forth in 8 CFR § 212.7(d) does not merely apply to “violent” crimes. It also applies to “dangerous” crimes, and “dangerous” has not been defined by the Attorney General in Matter of Jean, in the regulation, or by case law. 82 Practitioners should argue 78

22 I&N Dec. 1039 (BIA 1999). 543 U.S. 1 (2004). 80 23 I&N Dec. 968 (BIA 2006). 81 416 F.3d 249, 253-255 (3rd Cir. 2005). 82 For example, the Eighth Circuit has found that there was no error in the Board’s classification of second degree assault, which requires “recklessly causing serious injury to another,” as a violent or dangerous offense because although the crime was not as serious as the one involved in Matter of Jean, the BIA did not err in its finding that “hitting the victim over the head with a glass,” which were the facts involved in the offense, is a violent or dangerous offense. Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012). 79

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that the terms “crime of violence” and “violent or dangerous crime” are equivalent, and that there is no meaningful difference between the two. However, practitioners must also be aware that ICE will most likely push for a more expansive definition of what a dangerous crime might be, such that it goes beyond violent offenses. For example, it’s possible that ICE will argue that a DUI with injury, such as occurred in Leocal v. Ashcroft above, is a dangerous offense even though it does not involve a violent act. Furthermore, to date courts have held that the BIA has discretion as to whether to apply the categorical approach (based on the elements of the offense) or a fact-based approach (based on the underlying circumstances) to this determination. 83 The BIA has recognized that not all aggravated felonies are dangerous or violent. In Matter of KA-, 23 I&N Dec. 661 (BIA 2004), the respondent had been convicted of “second-degree criminal possession of a forged instrument in violation of section 170.25 of the New York Penal Law,” and had been sentenced to term of imprisonment of a year, therefore making the offense an aggravated felony under INA § 101(a)(43)(M). Practitioners should also be aware, however, that there is also no requirement that an offense be an aggravated felony in order to be considered dangerous or violent. Therefore, non-aggravated felonies could potentially bar § 212(h) eligibility. Further, the BIA stated in Matter of K-A- that “even nonviolent aggravated felonies will generally constitute significant negative factors militating strongly against a favorable exercise of discretion.” 84 The best practice is to assume that the issue of whether an offense is a violent or dangerous crime is a fact-based question. Therefore, you should be prepared for the court and the government to engage in a fact finding mission to determine whether the actions underlying the offense at issue constitute violent or dangerous conduct, rather than limiting themselves to the record of conviction (see discussion in Chapter 2, § 2.2). C.

Exceptional and Extremely Unusual Hardship for Violent or Dangerous Offenses

The regulation at 8 CFR § 212.7(d) requires that applicants with violent or dangerous offenses show “exceptional and extremely unusual hardship” before they can be eligible for the § 212(h) waiver. This is of course the standard of hardship employed in non-permanent resident cancellation of removal cases under INA § 240A(b)(1). Although it is the most stringent hardship requirement in immigration law, it is not insurmountable. “Although the hardship must be ‘substantially’ beyond the ordinary hardship that would be expected when a close family member leaves this country,” it need not be “unconscionable in its effect on a qualifying relative.” Matter

83

See Cisneros v. Lynch, 834 F.3d 857, 865 (7th Cir. 2016) (“We see nothing in the statute that compels the Attorney General to adopt one or the other of these methodologies”); Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015) (BIA has discretion not to apply a categorical approach); Makir-Marwil v. U.S. Att’y Gen., 681 F.3d 1227, 1235 (11th Cir. 2012) (Jean requires only “an adequate consideration of the nature of the refugee’s crime”). 84 Id. at 666.

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of Monreal, 23 I&N Dec. 56, at 60 & 62 (BIA 2001); see also Matter of Recinas, (cited above), and the discussion in § 6.3, Subsection A. 85 Therefore, despite the difficulties involved in meeting the standard set forth in 8 CFR § 212.7(d), practitioners should not assume that it cannot be done. A very well prepared, detailed application, supported by documentary evidence, will go a long way toward persuading the government that relief should be granted in the exercise of discretion. 86 For purposes of 212(h) eligibility, where a potential applicant has previously been granted LPR cancellation of removal, the underlying criminal convictions that existed at the time of such approval are not considered “waived” for purposes of current § 212(h) eligibility. For example, if an applicant was granted LPR cancellation for a controlled substance conviction previously, she would currently still be ineligible for 212(h) relief, as the granting of cancellation of removal did not “waive” the controlled substance conviction. See, e.g., Taveras v. Att’y Gen. of U.S., 731, F.3d 281 (3d 2013).

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See also ILRC’s publication Hardship in Immigration Law, which analyzes the “exceptional and extremely unusual hardship” standard in great detail. 86 See Chapter 10.

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CHAPTER 7 COMPARING § 212(h) WAIVERS AND LPR CANCELLATION OF REMOVAL

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This chapter includes: How to Approach Each Case.............................................................................. 7-1 The Advantages and Disadvantages of § 212(h) ................................................ 7-2 The Advantages and Disadvantages of LPR Cancellation of Removal ............. 7-5 Case Examples ................................................................................................... 7-7

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How to Approach Each Case

You have an LPR client in removal proceedings who has one or more criminal convictions. Is he eligible for cancellation of removal? For § 212(h)? For both? Which remedy will best serve your client? These are the issues we will explore in this chapter. You will get the most out of this chapter if you have a good understanding of the requirements for both remedies at the outset. 1 However, as we stated in Chapter 1, before you jump to what is the best form of relief from removal for your client, make sure that you have first thoroughly explored the following questions: 1. Is the client potentially a U.S. citizen by operation of law, and if so, what do you need to prove it? 2. How did the client come to the attention of DHS? Is there any way to challenge the arrest and/or the government’s evidence? (Question your client closely about the circumstances of his or her arrest; make sure you closely examine the I-213). 3. What is the client charged with? Is it a ground of deportability or a ground of inadmissibility? 4. Who bears the burden of proof? (The government will always bear the burden of meeting the charges of removability against an LPR.) 5. Can the charges be challenged, and how? 6. Do some or all of the charges concern convictions from before April 1, 1997? In that case, also investigate whether the client may be eligible for § 212(c) relief, discussed in Chapter 5. Whether or not you are going to challenge the allegation that your client is removable, you might also be preparing an application for relief, just in case the government is able to sustain the charge

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See Chapters 4 and 6.

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§ 7.1 § 7.2 § 7.3 § 7.4

of removability. Now you have to decide whether your client qualifies for cancellation of removal, or § 212(h), or some other remedy. 2 The first and most obvious question to ask is whether the crime in question is one that can be waived under § 212(h). As we saw in Chapter 6, only the following types of offenses can be waived under § 212(h):

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1. Crimes involving moral turpitude [INA § 212(a)(2)(A)(i)(I)] 2. One or more convictions arising from a single incident that involved simple possession of 30 grams or less of marijuana, or the similar offenses described in § 6.2 [INA § 212(a)(2)(A)(i)(II)] 3. Multiple criminal convictions where the total aggregate sentence(s) is five years or more [INA § 212(a)(2)(B)] 4. Prostitution and commercialized vice [INA § 212(a)(2)(D)] 5. People who have asserted immunity from prosecution based on immigration factors [INA § 212(a)(2)(E)] 3 If the crime in question does not fall within these categories, 4 a § 212(h) waiver is not an option and you should determine if your client is eligible for cancellation of removal (or any other applicable form of relief). § 7.2 A.

The Advantages and Disadvantages of § 212(h)

Advantages of § 212(h) Relief 1. Persons who were granted LPR status through fraud or mistake are eligible for § 212(h)

Unlike cancellation, § 212(h) can be used for LPRs who are being charged with being deportable for having been inadmissible at the time of admission under INA § 237(a)(1)(A) due to a criminal offense that was not disclosed or discovered at the time of the person’s initial admission. 5 Example: Lara was convicted of theft with an 8-month sentence before she adjusted status to permanent resident. She failed to disclose the conviction at the time of her adjustment. When Lara applied for naturalization, the officer discovered that she had a theft conviction that pre-dated her adjustment. Assume this conviction would have made her ineligible to adjust status as a CIMT, unless she obtained a waiver. The naturalization officer referred her to immigration court, and she was charged with being inadmissible at time of admission. She cannot apply for cancellation of removal, but Lara might be able to use a 212(h) waiver.

2 This chapter focuses on the differences between LPR cancellation of removal and § 212(h), but remember that if your client was convicted of an offense before April 1, 1997, the former § 212(c) waiver is another potential remedy, and may be more to your client’s advantage. See Chapter 5. 3 Not applicable to LPRs. 4 These grounds are explained more fully in Chapter 6, § 6.2. 5 See Chapter 6, § 6.5, Subsection C.

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2. Some LPRs with aggravated felony convictions can qualify for § 212(h) Conviction of an aggravated felony is an absolute bar to LPR cancellation. But some permanent residents can apply for § 212(h) despite having an aggravated felony conviction. Some offenses that can be waived pursuant to § 212(h) (for example, crimes involving moral turpitude) also may be aggravated felonies (for example, under the fraud, theft, or violence categories). If a 212(h) waiver is possible for the conviction under one of these inadmissibility grounds, the person may overcome the aggravated felony. Any LPR who has a non-drug-related aggravated felony conviction should consider whether she might be eligible for § 212(h).

Remember that § 212(h) cannot be used to waive all aggravated felonies. The conviction also must fit within one of the categories of crimes that can be waived with§ 212(h) (e.g., moral turpitude offenses, multiple offenses with aggregate sentences exceeding five years), even if it also happens to be an aggravated felony. For example, § 212(h) cannot be used to waive a drug trafficking aggravated felony, because § 212(h) does not waive any drug offense apart from simple possession of a small amount of marijuana. 3. LPR’s who lack the seven years of “continuous residence” after admission needed for cancellation still may qualify for § 212(h) Both LPR cancellation and § 212(h) have a “seven-year rule,” but the two rules are quite different. A client who does not qualify under one rule might qualify under the other. First, there is a seven-year requirement for § 212(h), but it does not apply to all LPRs. Section 212(h) provides that an LPR who has a prior admission at the border as a permanent resident (see discussion above) is ineligible if the person “has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of” removal proceedings. INA § 212(h)(2). Thus, the first step is to determine if the person has a prior admission at the border as an LPR. If the person does not, there is no seven-year requirement for § 212(h). If the LPR does have a prior admission that triggers the LPR restrictions for § 212(h), the second step is to see if the person completed seven years of “continuous lawful residence” before the Notice to Appear (NTA) was filed with the immigration court. For § 212(h), the seven years does not start until the person is in some kind of lawful status, whether or not they were admitted at the border. This includes time on an immigrant or non-immigrant visa, and should include status such 6

See Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), discussing INA § 212(h)(2); and Chapter 6, § 6.2 for further discussion of LPR restrictions to § 212(h) eligibility.

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Section 212(h) provides that some, but not all, permanent residents with such conviction/s are barred from eligibility for § 212(h). Which LPRs can apply for § 212(h) despite having an aggravated felony conviction? This issue has been heavily litigated, and some cases require a complex analysis. The basic rule is that in order to be barred under this provision, the person must have a prior admission at the border as an LPR, and must have been convicted of the aggravated felony after that admission. 6 A prior adjustment of status is not a qualifying “admission at the border” and does not, without more, subject the person to the LPR restrictions. A prior admission as a permanent resident following consular processing qualifies as this type of admission. See Chapter 6, § 6.2 for further discussion of LPR restrictions to § 212(h) eligibility.

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as being an asylee or Family Unity recipient, but it does not include time spent as an applicant for status. The person must remain in lawful status without a break during the entire seven years. The seven-year period does not end until the NTA is filed with the court. For further discussion of § 212(h) requirements, see Chapter 6, § 6.4.

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In contrast, the seven-year period for LPR cancellation requires an admission as a starting point, continues through unlawful status (e.g., as an overstay), and it ends upon either service of an NTA or commission of certain offenses, whichever is earlier. 4. The seven years of “continuous lawful residence” for § 212(h) cease to accrue only when removal proceedings are initiated, not when an offense is committed For those LPRs who are subject to the seven-year requirement, § 212(h) still may be a better remedy than cancellation because under § 212(h) the seven years of lawful continuous residence do not stop based upon the commission of a crime. 7 The seven-year period only ends upon the initiation of removal proceedings. This is usually the date that the Notice to Appear is filed with the immigration court. See INA § 239(a)(1). 8 5. Arriving alien LPRs are eligible to apply for § 212(h) even if they are not eligible to adjust status Permanent residents who return to the U.S. after a trip abroad can file a “stand-alone” 212(h) application (i.e., not in conjunction with an adjustment application), if they are deemed to be arriving aliens under INA § 101(a)(13)(C). 6. LPRs who are charged with criminal grounds of deportability can re-adjust status using § 212(h) as a remedy An LPR who is charged under the deportation grounds and is eligible for adjustment of status can apply for adjustment in conjunction with a § 212(h) waiver, if the conviction is of the type that can be treated under § 212(h). See Chapters 5 and 8 for discussion of re-adjustment of status as a defense to removal. 7. There is no statutory limit on the number of times one can apply for § 212(h) Theoretically, at least, you can apply for a § 212(h) waiver more than once. Whether you would be granted in the exercise of discretion is another question, but at least your application would have to be considered. Contrast this with cancellation of removal, which an immigrant may only receive once. B.

Disadvantages of § 212(h) Relief 1. Limit on types of offenses that can be waived

The types of crimes that can be waived under § 212(h) is limited to those enumerated above. 9 Importantly, § 212(h) does not waive any controlled substance offenses except those arising from

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See Chapter 4, § 4.4, Subsection B. Note that for cancellation of removal, time stops accruing with “service” of the NTA, which may be distinct from the filing of the NTA with the court. 9 These are explained fully in Chapter 6, § 6.2. 8

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a single incident that involved simple possession of 30 grams or less of marijuana, or the very similar offenses described in Chapter 6, at § 6.2. 2. Limit on which immigrants can apply

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The § 212(h) applicant, whether LPR or not, must be:

In these last two categories, the applicant must prove that she is rehabilitated and her admission is not contrary to U.S. interests. 3. Requirement of extreme hardship to family members An applicant who qualifies to apply for § 212(h) based upon having a USC or LPR relative must demonstrate that the relative would suffer “extreme hardship” if the applicant is removed. INA § 212(h)(1)(B). In practice, this is a far harder standard to meet than the standard for a positive discretionary decision in LPR cancellation, which often is based on a showing of rehabilitation, remorse, community contributions, etc. (Note that people who qualify for § 212(h) under the other bases (being a VAWA self-petitioner, or being inadmissible only under the prostitution ground or due to events at least 15 years in the past) do not need to prove extreme hardship. They face the easier task of proving that they have been rehabilitated and their admission would not be contrary to national welfare, or in the case of a VAWA self-petitioner, they do not have a specific proof requirement.) 4. Those convicted of violent or dangerous offenses can only be granted § 212(h) in “extraordinary circumstances” As discussed in Chapter 6, § 6.7, DHS has by regulation limited the availability of § 212(h) relief in the case of individuals who were convicted of a violent or dangerous offense to those who can either demonstrate extraordinary circumstances under § 212.7(d), such as national security or foreign policy considerations, or who can show exceptional and extremely unusual hardship. § 7.3 A.

The Advantages and Disadvantages of LPR Cancellation of Removal

Advantages of LPR Cancellation 1. It can waive both inadmissibility and deportability grounds, whether criminal or non-criminal

Cancellation of removal can be used to waive almost all grounds of inadmissibility and grounds of deportability (other than conviction of an aggravated felony). In contrast, § 212(h) can only waive the specific inadmissibility grounds enumerated above.

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a. A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed; b. A VAWA self-petitioner; c. Inadmissible only under the prostitution ground; or d. Inadmissible based upon a conviction or event that took place more than 15 years before the current application.

2. Continuous residence need not be “lawful”

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The seven years of continuous residence required for cancellation of removal includes residence in the U.S. in any status, including unlawful status, as long as the individual was initially admitted in some kind of lawful status as defined in INA § 101(a)(13). In other words, those who were nonimmigrant visa overstays prior to becoming LPRs can count all of the time they have been in the U.S. since their first admission, whether or not they were in status during that time. For § 212(h), the seven years of lawful continuous residence does not count time as a visa overstay, or any period of time without status. 3. No special restrictions for violent or dangerous crimes Unlike for § 212(h), violent or dangerous offenses are waivable without the necessity of showing “extraordinary circumstances,” or “exceptional and extremely unusual hardship.” 10 Like all waivers, however, relief is discretionary, so someone with a serious crime or an extensive criminal record will always have a harder time proving that he or she merits a favorable exercise of discretion. B.

Disadvantages of LPR Cancellation 1. One-time only remedy and certain individuals barred

LPR cancellation of removal is a one shot deal. Once granted, the client is never eligible to apply again. In addition, if the LPR was ever granted suspension of deportation, non-LPR cancellation of removal, or § 212(c) relief in the past, he or she is barred from eligibility for LPR cancellation of removal. INA § 240A(c)(6). The statute also bars those who entered the U.S. as a crewman and certain former J-1 visa holders from applying for LPR cancellation. INA § 240A(c)(1), (2) and (3). 2. Commission of certain offenses stops the accrual of the seven years’ continuous residence The accrual of seven years of residence is deemed stopped upon the commission of an offense, if the offense is both “referred to” in INA § 212(a)(2) and renders the person inadmissible under INA §§ 212(a)(2) or deportable under INA § 237(a)(2) or 237(a)(4). See INA § 240A(d)(1). 11 Section 212(h), on the other hand, stops continuous residence at a later date, at the initiation of removal proceedings. 3. Available only to those “lawfully admitted” to permanent residence As discussed in Chapter 4, an LPR who acquired LPR status through fraud or mistake is not eligible for LPR cancellation of removal, regardless of whether or not he or she was to blame for the incorrect admission and regardless of the time he or she has been an LPR.12 See Matter of Koloamatangi, 13 and the discussion in Chapter 4, § 4.3, Subsection A. Such individuals are eligible to apply for non-LPR cancellation of removal under INA § 240A(b), but that is a very 10

As required for some § 212(c) applicants. See Chapter 5, § 5.4. See Chapter 4, § 4.4, Subsection B. 12 Unless granted a waiver under INA § 237(a)(1)(H). See Matter of Sosa-Hernandez, 20 I&N Dec. 758 (1993) and Chapter 4, § 4.3 5, § 5.1 and 8, § 8.1. 13 23 I&N Dec. 548 (BIA 2003). 11

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difficult remedy to obtain, and those who have committed certain kinds of crimes are not eligible for this relief. 14 Therefore § 212(h) may be the only viable remedy. 4. Conviction of an aggravated felony is a bar to LPR cancellation

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Lawful permanent residents who have a conviction for an aggravated felony are barred from applying for cancellation. Compare this to § 212(h), where courts have found that only some permanent residents are barred by conviction of an aggravated felony. § 7.4

Case Examples

Client A: Getting the Seven Years Facts: Aidy came to the United States with a visitor’s visa in June 2006, with permission to stay until December 2006. She overstayed her visa. In 2008, she adjusted status to permanent residence based on her marriage to a U.S. citizen. In 2010, she committed and was convicted of felony theft. She served a few days in jail. In 2016, she submitted fingerprints when she renewed her green card. ICE filed a Notice to Appear (NTA) to begin removal proceedings against her, alleging that she was deportable under INA § 237(a)(2)(A)(i) because she was convicted of a crime involving moral turpitude that carries a potential sentence of a year or more, committed within 5 years of admission. Aidy is still married to her U.S. citizen spouse. Deportable? We would carefully look at the statute and the record to see if it provides sufficient proof that the theft offense is a crime involving moral turpitude (some theft offenses are not, because they include a temporary taking). We would not concede deportability and instead would put the government to its burden of proving that a conviction took place, and that it is a deportable offense. But let’s assume that it will be found to be a deportable crime involving moral turpitude committed within 5 years of admission. Is she eligible for § 212(h) and/or cancellation of removal? LPR Cancellation: To qualify, Aidy needs to have accrued seven years of residence in the U.S. since admission in any status. The seven years cease to accrue upon the filing of an NTA, or if she commits certain offenses, whichever comes first. Her first admission was in 2006. The NTA is not a problem here, because it was not filed until 2016. The problem is that if the theft offense is a crime involving moral turpitude, her seven years ceased to accrue when she committed the offense in 2010. That is because a felony moral turpitude offense meets the requirements set out in INA§ 240A(d): it is an offense referred to in § 212(a)(2) (which includes crimes involving moral turpitude, outside of certain exceptions) and it also makes Aidy deportable under § 237(a)(2).

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INA § 240A(b)(1)(C).

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The rest of this chapter consists of examples showcasing the differences between § 212(h) and LPR cancellation of removal, and demonstrating how to analyze each case to determine which is the best remedy available for your client.

With only four years accrued after admission—from 2006 to 2010—she is not eligible for LPR cancellation of removal.

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Section 212(h): Because Addy is being charged with a ground of deportability, she will be eligible for § 212(h) only if she also applies for adjustment of status. Matter of Rivas, 26 I&N Dec. 130 (BIA 2013). Fortunately, she can do that because she still is married to a U.S. citizen. But assuming that the felony theft conviction makes her inadmissible under the moral turpitude ground, she also needs to apply for a § 212(h) waiver. Is she eligible to apply for § 212(h)? Is she subject to the LPR restrictions on eligibility for § 212(h), including the seven-year requirement? No, she is not, because she does not have a prior admission at the border as an LPR. Her only admission at the border was as a tourist, not a permanent resident. Her adjustment of status to permanent residency was not an admission at the border. Because she is not subject to the LPR restrictions, the seven-year requirement for § 212(h) does not apply to her. If Aidy had been subject to the LPR bars, would she have the required seven years? Let’s change the facts and say that Aidy entered without inspection in 2006, and then became a permanent resident through consular processing rather than adjustment of status in 2008. Because she was admitted to the U.S. at the border as an LPR in 2008, she is subject to the LPR restrictions on § 212(h), and she must have seven years in continuous lawful residence to apply for § 212(h). Does she have the seven years? Yes. When the LPR restrictions to § 212(h) apply, the LPR needs to have had seven years’ lawful continuous residence before the filing of the NTA with the court. Aidy’s lawful continuous residence does not include the years 2006-2008 when she was in unlawful status. It begins in 2008 when she was admitted as a permanent resident. The good news is that for § 212(h) purposes, the seven years does not end upon commission of an offense. It only ends when the NTA is filed. That did not happen until 2016, and by then Aidy had more than seven years of lawful continuous residence. Aidy will have to prove extreme hardship in order to be granted a § 212(h) waiver, and that is difficult, but at least she can apply. Client B: Waiving Deportation Grounds Facts: Bernardo entered without inspection in 2001. He became an LPR through consular processing in 2005. He was convicted of simple possession of methamphetamines, a misdemeanor, in 2012. He was placed in removal proceedings in 2017, charged with being deportable for conviction of an offense relating to a controlled substance under INA § 237(a)(2)(B)(i). Deportable? We would carefully look at the record to see if it provides sufficient proof that the substance in fact was methamphetamines. We would not concede deportability, but would put the government to its burden. But let’s assume it will be found a deportable drug offense. Is he eligible for § 212(h) and/or cancellation of removal?

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Section 212(h): Bernardo cannot apply for a § 212(h) waiver, due to the type of conviction. Section § 212(h) does not waive inadmissibility under the controlled substance ground, other than inadmissibility arising from a single incident that involved simple possession of a small amount of marijuana.

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LPR cancellation: LPR cancellation can be used to waive almost any ground of inadmissibility and deportability other than an aggravated felony. It can waive deportability for a drug offense that is not an aggravated felony. That’s the good news; now we should make sure that he meets the other requirements for cancellation.

Does he have five years as a lawful permanent resident? Yes, he has 12 years, from 2005 through the present. The five years as a lawful permanent resident does not stop as of the date the person commits an offense, or at the issuance of an NTA. Client C: Aggravated Felony Facts: Carolina entered the U.S. without inspection in 1981. In 1990, she adjusted status to permanent residency through the legalization program. In 2010, she was convicted of felony insurance fraud with an amount of restitution totaling $15,000. In 2016, she applied for naturalization, and was referred to removal proceedings. She was charged with being deportable for conviction of an aggravated felony, under INA § 237(a)(2)(A)(iii). The alleged aggravated felony was conviction of a crime involving fraud or deceit where the loss to the victim/s exceeded $10,000. See INA § 101(a)(43)(M). Carolina is unmarried. She lives with and cares for her adult U.S. citizen son who has a disability. Deportable? We would carefully look at the record in the fraud case to see if it provides sufficient proof that the conviction is an aggravated felony. (In some cases, a conviction and restitution order like this can be structured to avoid being an aggravated felony.) 15 We would not concede deportability but would put the government to its burden of proving that a conviction took place and that it is a deportable offense. But let’s assume it will be found a deportable aggravated felony. Is Carolina eligible for § 212(h) and/or cancellation of removal? LPR cancellation of removal: Any conviction of an aggravated felony is an absolute bar to cancellation of removal. If it really is an aggravated felony, this is not an option. What if Carolina’s conviction had occurred in 1995 instead of 2010? In that case, there is a good chance that Carolina would be eligible for relief under § 212(c), the predecessor to LPR 15

For example, see discussion in Note: Burglary, Theft, and Fraud at www.ilrc.org/sites/default/files/resources/n.11-buglary_theft_fraud_0.pdf.

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Did he accrue seven years after admission? We don’t know. He needs to have accrued seven years between the date of his first admission in any status to the U.S., and the date that he committed an offense that is referred to in INA § 212(a)(2) and that makes him deportable under § 237(a)(2). His first admission was as a permanent resident sometime in 2005. We don’t know the date that he committed the drug offense for which he was convicted in 2012. It might work out—for example if he was admitted as an LPR in January 2005 and committed the offense in June 2012—or it might not.

cancellation. One can apply to waive an aggravated felony under § 212(c) if the conviction was before April 24, 1996. See Chapter 5.

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Section 212(h): Because Carolina adjusted status, she is not subject to the LPR restrictions, so the fact that the offense is an aggravated felony is not an absolute bar to § 212(h). The question is, is she otherwise eligible to apply for § 212(h). Because she is being charged with a ground of deportability, she must apply for § 212(h) in conjunction with an application for adjustment of status as a defense to removal. Matter of Rivas, supra. If her U.S. citizen son is over age 21, he can file an immediate relative visa for her, so that she can submit an adjustment application. The fact that he is disabled and that she cares for him will help her to try to meet the high standard for proving that he would suffer “extreme hardship” if she were deported. What if Carolina had gone through consular processing rather than adjustment of status? Let’s say that Carolina went through consular processing in 1990. In that case, she would be subject to the LPR restrictions on eligibility for § 212(h), based on her 1990 admission at the border as an LPR. As a person subject to the LPR restrictions, she would not be eligible for § 212(h) because of her conviction of an aggravated felony in 2010. If this were the case, Carolina should consider whether she qualifies for any post-conviction relief options. NOTE: Don’t forget to consider whether post-conviction relief might be available to your client. Receiving bad advice about the consequences of a guilty plea is one reason that a prior conviction could be vacated for legal error. Additionally, for some, reducing the sentence on a prior conviction might dramatically change the immigration consequences. Client D: Violent Offense Facts: Dan entered on a tourist visa in 2006. He adjusted status to permanent residence in 2011. In 2012, he was convicted of a misdemeanor shoplifting offense that has a six-month maximum possible sentence; he was sentenced to a few days. In 2016, after a bar fight, he was convicted of felony battery causing injury and sentenced to six months in jail. He was taken into ICE custody directly from jail. He is charged in removal proceedings for being deportable for conviction of two crimes involving moral turpitude since admission, under INA 237(a)(2)(A)(ii). Dan is still married to his U.S. citizen wife but they are estranged. He provides child support for their 4-yearold son. Deportable? We would carefully look at the statute and record in both cases to see if both convictions involved crimes involving moral turpitude. (Some theft offenses do not involve moral turpitude because they include intent to deprive temporarily, and some battery offenses, even with injury, do not involve moral turpitude because the minimum conduct is an offensive touching.) We would not concede deportability but would put the government to its burden of proving that the convictions exist and meet the definition of crimes involving moral turpitude. But let’s assume Dan will be found deportable. Is he eligible for § 212(h) and/or cancellation of removal? Section 212(h): The convictions are not bars to eligibility for § 212(h). Section 212(h) can waive multiple crimes involving moral turpitude. Dan is not subject to the LPR restrictions. (Even if he

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were, he still could apply, since neither offense is an aggravated felony, and he has the required seven years of lawful continuous residence.) However, the battery conviction might be deemed a “dangerous or violent” offense, which would mean that Dan would have to meet a very high standard in order for the judge to grant the application as a matter of discretion. Counsel could argue that the conviction is not a dangerous or violent offense, but because this category remains largely undefined, there are no guarantees. See discussion in Chapter 6, § 6.7.

LPR Cancellation: If Dan is eligible to apply, he has a much greater chance of winning LPR cancellation. Although the offense is so recent that he cannot show rehabilitation (apart from good behavior in jail), the judge can consider many other factors including his whole history in the U.S., and the court does not need to find extreme hardship. He is statutorily eligible to apply for LPR cancellation. He has the required seven years. His time began to accrue starting with his admission as a tourist in 2006. The clock did not stop with his 2012 theft conviction, because that comes within the petty offense exception to the moral turpitude inadmissibility ground. See Chapter 4, § 4.4. His seven years ceased to accrue when he committed the second moral turpitude offense in 2016. By then, he had over seven years since admission. Client E: At the Border Facts: Etienne was first admitted to the U.S. as a permanent resident in 2000. In 2001, he was convicted of a felony for assault with a deadly weapon. He served 18 days. In 2017, he decided to travel to his home country to see relatives for three weeks. Upon his return, he was stopped at the border and charged with a permanent resident who is seeking admission and is inadmissible, based on conviction of a crime involving moral turpitude. Etienne is divorced and has no U.S. citizen or permanent resident relatives. Inadmissible? As always, we would carefully look at the statute and record to see if he might not be inadmissible. Because Etienne is a returning permanent resident, the government has the burden of proving that he is seeking a new admission because he comes within a category listed in INA § 101(a)(13)(C). Thus, the government must prove that his conviction is an inadmissible crime involving moral turpitude. We would not concede inadmissibility but would put the government to its burden of proving that the conviction exists and that it involves moral turpitude and does not come within the petty offense or youthful offender exception. (That is, unless we want this to happen at the border; see below.) But let’s assume Etienne’s felony conviction will be held a crime involving moral turpitude, and he will be found inadmissible. Is he eligible for § 212(h) and/or cancellation of removal?

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Finally, because this is a charge of deportability, he must submit the application in conjunction with an application for adjustment of status. Matter of Rivas, supra. Will his estranged wife be willing to submit this application? Also, he, at minimum, must prove extreme hardship to a U.S. citizen or permanent resident relative. In many courts, loss of contact with a child, or failure to pay child support, may not be sufficiently “extreme” hardship to win a § 212(h) case (much less to meet the higher, “dangerous or violent offense” standard).

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LPR cancellation of removal: Etienne is not eligible for cancellation because he ceased to accrue time toward his seven years after one year, when he was convicted of an offense that made him inadmissible and deportable under the moral turpitude grounds. Section 212(h): Luckily, Etienne’s conviction occurred over 15 years ago. That means that (a) he can apply for § 212(h) on that basis, rather than based on hardship to relatives (he doesn’t have any qualifying relatives) and (b) he does not have to meet the “extreme hardship” standard, but only needs to show that he has been rehabilitated and his entry would not be contrary to the national welfare, safety or security of the U.S. See INA § 212(h)(1)(A). Since he has had no problems since the 15-year-old conviction, this should be easy to prove. The government might assert that his conviction for assault with a deadly weapon was a “serious or dangerous” one, and therefore subject to a very high discretionary standard. He could argue against that. Any non-egregious facts of the case (a youthful mistake, a fair fight, etc.), plus the fact that he was only imprisoned for 18 days, could help support that argument. Most important, because this is a charge of inadmissibility, Etienne can apply for § 212(h) even without an application for adjustment of status. If he were charged within the U.S. with being deportable, he would be required to apply for adjustment in order to apply for § 212(h) relief. Matter of Rivas, supra. It is lucky for Etienne that he is being charged at the border, because he has no way to apply to adjust. This, coupled with the fact that it appears that he has a reasonable chance of success, may mean that we want Etienne to be stopped at the border and identified as a permanent resident who seeks admission! This is one of those few times that we may decide to admit and concede so that we can get to relief.

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CHAPTER 8 OTHER REMEDIES FOR PERMANENT RESIDENTS FACING REMOVAL 1

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This chapter includes: § 8.1

Remedies for LPRs Found to Have Been Inadmissible at the Time of Their Original Admission................................................................................... 8-1 Special Domestic Violence Waiver under INA § 237(a)(7)............................. 8-17 Adjustment of Status ........................................................................................ 8-18 Naturalization as a Remedy to Removal Proceedings: Termination of Removal/Deportation Proceedings under 8 CFR § 1239.2(f) [formerly 8 CFR § 239.2(f) and 8 CFR § 242.7(e)] ......................................................... 8-20 Acquisition and Derivation of U.S. Citizenship ............................................... 8-24 Asylum, Withholding of Removal & Relief under the Convention Against Torture (CAT) ..................................................................................... 8-26 Remedies for Victims and/or Witnesses to Crimes .......................................... 8-30

§ 8.2 § 8.3 § 8.4

§ 8.5 § 8.6 § 8.7

§ 8.1

Remedies for LPRs Found to Have Been Inadmissible at the Time of Their Original Admission

We have already seen that permanent residents can be charged with being inadmissible at the time of their original admission under INA § 237(a)(1)(A), and that if this allegation is true, they are not eligible for LPR cancellation of removal. 2 We have also seen that if they were originally inadmissible due to a crime, a § 212(h) waiver is a potential remedy. 3 But what if the ground of inadmissibility is not a crime, what then? There are several potential remedies for clients in this situation. In this section, we discuss the following: (A) A waiver under INA § 237(a)(1)(H), (B) a waiver under INA § 212(k), (C)

1

The discussions in this chapter assume you have already read the previous chapters in this manual, and are therefore familiar with LPR cancellation of removal, waivers under INA § 212(h) and former § 212(c) relief. It also assumes you have a working knowledge of other areas of immigration law, since the remedies described herein cannot be discussed in tremendous detail. 2 See Chapter 3 § 3.5, Chapter 4, § 4.3, Subsection A. 3 See Chapters 6 & 7.

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This chapter covers remedies for permanent residents that have not been covered in other chapters. Chapters 4, 5 and 6 respectively cover LPR Cancellation of removal, relief under former § 212(c), and the § 212(h) waiver in detail. The waivers and exceptions for alien smuggling, misrepresentation, and document fraud are covered in Chapter 3.

nonpermanent resident cancellation of removal under INA § 240A(b)(1), and (D) NACARA cancellation of removal or suspension of deportation. 4 A.

Waiver of Deportability under INA § 237(a)(1)(H) 1. Statutory requirements

The waiver of deportability under INA § 237(a)(1)(H) [formerly INA § 241(f)] is often, though not always, used for persons who are deportable because they committed a misrepresentation to gain admission. It can also be used for those who were admitted due to a mistake, or omitted a relevant fact in the immigrant visa application due to inadvertence. To qualify for the waiver the person must:

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Be the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident, and Have been in possession of an immigrant visa and otherwise admissible at the time of admission to the United States. Example: Angelica immigrated through a second preference visa as the unmarried daughter of a permanent resident, but she was secretly married at the time. Now she is deportable because she was inadmissible for visa fraud when she immigrated. She can apply for a waiver under INA § 237(a)(1)(H). She is eligible for the waiver because she is the daughter of a permanent resident and she was not inadmissible under other grounds when she immigrated.

In looking at this example, you might wonder how Angelica could be “otherwise admissible” if she was actually married when she immigrated as an unmarried second preference daughter. However, INA § 237(a)(1)(H) was designed to cure the inadmissibility of people like Angelica. For example, in Matter of Manchisi, 5 the BIA granted a waiver under former INA § 241(f) to someone whose initial admission was through a fraudulent marriage [former INA § 241(f) is the predecessor to current INA § 237(a)(1)(H)]. In that case, the respondent had subsequently remarried and both his current wife and child were U.S. citizens at the time of the proceedings. In Matter of Matti, 6 the BIA refused to allow the respondent to use his relationship to the “spouse” he married in a sham marriage as a basis for establishing eligibility for former § 241(f). As the Board stated: “it is clear from [the] legislative history that a sham marriage is not the type of family tie which Congress intended to preserve in enacting section 241(f)(1).” Matter of Matti, at 46. In another case, Matter of Federiso,7 the BIA denied eligibility for an INA § 237(a)(1)(H) waiver to someone who was the son of a deceased U.S. citizen. The Board reasoned that because the 4

We have not covered remedies under the Violence Against Women Act (VAWA), except for the U visa (see § 8.7, Subsection A below) in this manual. However, for information on relief for battered spouses, parents and children, please see ILRC’s publication: The VAWA Manual: Immigration Relief for Abused Immigrants, available on our website at www.ilrc.org. 5 12 I&N Dec. 132 (BIA 1967), overruled in Matter of Diniz but reinstated in Matter of Da Lomba, 16 I&N Dec. 616 (BIA 1978). 6 19 I&N Dec. 43 (BIA 1984). 7 24 I&N Dec. 661 (BIA 2008).

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history of this waiver (as explained in INS v. Errico) showed that its purpose was to unite families, extending eligibility to the survivors of deceased statutory relatives would not serve this purpose. Therefore, the BIA concluded, since the respondent’s U.S. citizen mother was deceased, he could no longer claim to be the son of a U.S. citizen and was therefore not statutorily eligible for the waiver.

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However, the Ninth Circuit reversed this decision in Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010). In so doing, the Ninth Circuit reasoned that while the BIA had interpreted the statute to require the parent citizen to be a living citizen, the statute does not say this. As such, the court concluded that the BIA erred in finding Federiso ineligible for the waiver. 8

2. Discretion Note that the § 237(a)(1)(H) waiver permits the applicant to rely on the relationship to a U.S. citizen or lawful permanent resident child or son or daughter, in addition to a spouse or parent. This is different from INA § 212(i), the waiver provision for inadmissibility based on misrepresentation or fraud, which does not permit consideration of hardship to the applicant’s child. 10 Like the § 212(h) waiver, however, the BIA has at least in one case required a balancing of the person’s equities against his or her bad acts, 11 including consideration of the misrepresentation, if deliberate, as a negative factor. Matter of Tijam, 22 I&N Dec. 408, at 412-413 (BIA 1998), citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S.Ct. 350 (1996). There were three different opinions in Matter of Tijam, however; one majority and two concurring in part and dissenting in part. In one of the concurring and dissenting opinions, Board Member Gustavo D. Villageliu argued that because both § 212(c) and § 212(h) dealt with criminal violations, the balancing test first 8

Federiso’s mother had died during the pendency of his removal proceedings. Note that in Matter of Damouni, the BIA indicated that its holding would support the availability of the 237(a)(1)(H) waiver to address fraud or misrepresentation at the time of adjustment even in the Fourth, Fifth, and Eleventh Circuits that have interpreted the term “admission” in other contexts not to include adjustment of status. See Matter of Damouni, p. 15, FN 16. 10 See Chapter 3 for a discussion of § 212(i). 11 See Chapter 5, § 5.4 & Chapter 6, § 6.6, Subsection A. 9

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An individual who obtained lawful permanent residence through adjustment of status in the United States (versus consular processing) may also be eligible for the § 237(a)(1)(H) waiver. The waiver applies to persons who were inadmissible “at the time of admission,” so arguably an adjustment of status may fit the definition of an admission, thus allowing the waiver to be used to cure fraud or misrepresentation in the adjustment of status. In an unpublished but significant decision, Matter of Damouni, A 029 235 328 (Jan. 10, 2013), the BIA held that the respondent’s adjustment of status qualified as an admission for purposes of the waiver. Accordingly, Damouni was eligible to waive her failure to disclosure her bigamous marriage at the time of her adjustment. Although Damouni is unpublished and thus non-precedential, it does provide a roadmap for making the argument that people who adjusted status should be eligible for § 237(a)(1)(H) waivers. Be aware, however, that although the BIA has held adjustment to be an admission in some contexts, the circuit courts have not always agreed, so it is important to check the law in your circuit and address any contrary interpretation. 9

articulated for § 212(c) cases in Matter of Marin was appropriate for § 212(h) cases, but not for cases arising under INA § 241(a)(1)(H). Matter of Tijam, at 418. Moreover, INS v. Yueh-Shaio Yang, the Supreme Court case on which the majority opinion in Matter of Tijam relies, does not require a Matter of Marin/§ 212(c) balancing test in misrepresentation cases. Rather, INS v. Yueh-Shaio Yang interpreted former INA § 241(a)(1)(H) to not impose any limitations on the factors that may be considered in determining who should be granted relief under this waiver.

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Thus, the majority opinion in Matter of Tijam really misread the holding in INS v. Yueh-Shaio Yang. In so doing, Matter of Tijam reversed prior Service policy regarding fraud, and specifically declined to follow the holding in Matter of Alonzo, 17 I&N Dec. 292 (Comm’r 1979), which previously had governed waivers of misrepresentation, and had held that “the fraud for which the applicant seeks forgiveness should not be considered as an unfavorable factor.” PRACTICE TIP: Do not automatically consider the majority opinion in Matter of Tijam dispositive. Rather, distinguish the facts of that case from your own, and emphasize that the only reason that the respondent’s fraud was taken into consideration in Matter of Tijam is that she had not only committed fraud at her admission, but had committed other acts of fraud as well. You should also cite to the differing opinions in Matter of Tijam, and point out how the majority opinion’s reliance on the Supreme Court’s holding in INS v. Yueh-Shaio Yang is due to fundamental misunderstanding of that case. Finally, you should emphasize that the purpose of INA § 237(a)(1)(H) is to unite families, as the Supreme Court held in INS v. Errico, and that INS v. Errico has been recently affirmed in Matter of Federiso, above. As a precaution, however, you should also show how your client’s equities outweigh any adverse factors. 3. Effect of the § 237(a)(1)(H) waiver When USCIS or an immigration judge grants a waiver of deportability under INA § 237(a)(1)(H) to a person who was inadmissible at admission, it should “cure” the ground of inadmissibility dating back to the time when it occurred. See Matter of Sosa-Hernandez, 20 I&N Dec. 758 (BIA 1993). This may be helpful, for example, to persons who someday need to show seven years lawful residence to qualify for a § 240A(a) cancellation. At least, this was the case under preIIRIRA law. In Matter of Sosa-Hernandez, an immigration judge had granted the noncitizen the § 241(f) waiver, but then reasoned that because he had not acquired the seven years of lawful unrelinquished domicile necessary for § 212(c) relief at the time the waiver was granted, he was ineligible for § 212(c). The BIA reversed the immigration judge, holding that a person granted a waiver of former INA § 241(f) retroactively validated his LPR status so that he had accumulated the necessary seven years of lawful unrelinquished domicile necessary to qualify for § 212(c) relief and could therefore proceed with that application. 12 It is therefore possible to apply for both a § 237(a)(1)(H) waiver and a § 240A(a) LPR cancellation of removal application at the same time, in order to cure the illegality of the

12

See Chapter 5 for a discussion of § 212(c) waivers.

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applicant’s permanent residence retroactively to the date of initial admission and therefore make him eligible for cancellation of removal. 13 4. To be eligible, the noncitizen must be “otherwise admissible”

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The § 237(a)(1)(H) waiver can only be granted if the applicant was otherwise admissible to the United States at the time of the original admission. In other words, if the person obtained LPR status through a misrepresentation about a crime that rendered him inadmissible at the time of admission, he would be ineligible for the § 237(a)(1)(H) waiver, because even if it was granted, he would still be inadmissible for the crime. If he was not inadmissible under another ground at the time of his original admission, even though he subsequently became deportable for a criminal offense, he would be eligible for the § 237(a)(1)(H) waiver. This was the situation in Matter of Sosa-Hernandez, described above. The Ninth Circuit explains the “otherwise admissible” requirement in Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir. 2010). In this case, the noncitizen had been deported in 1993, then subsequently re-entered illegally and later became a permanent resident through his wife. At the time of his application for permanent residence, he did not disclose his prior deportation. He was placed in removal proceedings after applying for naturalization, and applied for a § 237(a)(1)(H) waiver. The Board found him statutorily ineligible for the waiver, and the Ninth Circuit affirmed, stating:

Corona-Mendez v. Holder, at 1147. Therefore, the use of the § 237(a)(1)(H) waiver has its limitations, and it is important to understand the distinction between the situation in Sosa-Hernandez and the situation in CoronaMendez v. Holder. B.

The § 212(k) Waiver

People who were wrongfully admitted to the United States—i.e., those who were inadmissible at admission—may also be eligible for a waiver of removability under INA § 212(k). It is only available to those issued an immigrant visa who are or were inadmissible under INA §§ 212(a)(5)(A) [failure to meet the labor certification requirement] or 212(a)(7)(A)(i) [lack of proper documents], who are otherwise admissible, and who did not know, and could not reasonably have known, that they were inadmissible. Unlike the INA § 237(a)(1)(H) waiver, a waiver under § 212(k) cannot be used to waive a misrepresentation. This waiver can be used at 13

See Chapter 4, § 4.3 on the “lawful permanent resident” requirement for LPR cancellation of removal eligibility.

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In Sosa-Hernandez, only one ground of inadmissibility existed at the time of the fraud-an invalid entry document. In contrast, two grounds of inadmissibility existed for CoronaMendez at the time of his fraudulent application for adjustment of status-the fraud itself and his improper return to the United States after deportation, without permission to reenter. 8 USC § 1227(a)(1)(H). Since 237(a)(1)(H) relief is only available where it will render the petitioner “otherwise admissible” as of the time the fraud it excuses transpired, the Board properly determined that the 237(a)(1)(H) waiver was statutorily unavailable to Corona-Mendez.

the time of the initial admission, or later on, after the wrongful admission has been discovered, sometimes many years later. 14 Example: Luana, a citizen of Ghana, has been waiting many years to immigrate through her father, a lawful permanent resident. Finally, her priority date becomes current, and she applies for herself as principal beneficiary, with her husband and three children as derivative beneficiaries. All members of the family are granted immigrant visas and enter the United States as lawful permanent residents. Years later, at her naturalization interview, USCIS discovers that Luana should never have been permitted to immigrate as a married daughter of a permanent resident, and that her father’s I-130 petition on her behalf should have been automatically revoked upon her marriage. Luana is eligible for a § 212(k) waiver. 15

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It’s a good thing that the § 212(k) waiver exists, because Luana provided accurate and complete information in her application and had no way of knowing that her immigrant visa was not lawfully granted. Furthermore, she is not eligible for LPR cancellation of removal because she was not “lawfully admitted to permanent residence.” She is eligible for the § 237(a)(1)(H) waiver, but neither her husband, nor their children, who were also granted permanent residence incorrectly, are statutory relatives for purposes of § 237(a)(1)(H). While you might think that cases such as Luana’s are rare, they do in fact occur, usually through mistakes made by consular or DHS officials. The § 212(k) waiver provides an important protection for those granted permanent residence in error. Otherwise, such individuals could be forced to return to their country of origin after many years of living in the United States because of a mistake about which they had no knowledge or control. Since the § 212(k) waiver is only for those who have erroneously been granted immigrant visas through no fault of their own, there is no hardship requirement, and no requirement that the applicant have permanent resident or U.S. citizen relatives. The only requirement is to show that the mistake through which the individual was granted an immigrant visa was an innocent or inadvertent one that could not reasonably have been known at the time of admission. Of course, when applying for the § 212(k) waiver, it is important to show that your client is deserving of relief, and though a showing of hardship is not necessary, it certainly will not hurt to point out the hardships your client would suffer if the waiver were to be denied. C.

Nunc Pro Tunc Relief

Nunc pro tunc relief is not a statutory remedy. Rather, it is an equitable power to grant an order now as if it were granted sometime in the past. Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. 2008). In Ramirez-Canales, the court stated that: A nunc pro tunc order is an order that has retroactive legal effect. The BIA has long used nunc pro tunc orders to remedy the harshness of United States immigration laws. Among

14

The waiver is available both for persons charged with inadmissibility and deportability because they were inadmissible on entry. Kyong ho Shin v. Holder, 607 F.3d 1213, 1218 (9th Cir. 2010). 15 This example is based on a real (unpublished) case.

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other uses, the BIA has issued nunc pro tunc orders to retroactively legalize an alien’s admission into the United States, thereby eliminating the grounds for deporting the alien. Ramirez-Canales v. Mukasey, citing Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir.2005).

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As an equitable power, its scope is broad, and should be applied as justice requires so long as it is not barred by statute. Ramirez-Canales v. Mukasey. 16 The Board typically allows nunc pro tunc relief in cases either in which the petitioner requests nunc pro tunc permission or in which the Board desires to apply the law as it existed at the time of the violation. See Corona-Mendez v. Holder 593 F.3d 1143 (9th Cir. 2010) 17 and RamirezCanales v. Mukasey. However, “the Board grants nunc pro tunc permission only in one of two circumstances: (1) when the only ground of deportability or inadmissibility would thereby be eliminated or (2) when the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissibility.” Corona-Mendez v. Holder (and cases cited therein). As the BIA explained in Matter of Garcia: 18

In Matter of Garcia, nunc pro tunc relief was denied because the respondent, who had re-entered the U.S. without permission after a deportation, would still have been deportable if relief were granted. Thus, the Board reasoned, he did not qualify for nunc pro tunc relief. The Ninth Circuit reached a similar conclusion in Corona-Mendez v. Holder, because the petitioner in that case was inadmissible both for fraud and for illegally returning to the U.S. after deportation; thus nunc pro tunc relief would not completely dispose of his case and make him eligible for adjustment of status. However, in Ramirez-Canales v. Mukasey, the Sixth Circuit remanded the case to the BIA to determine whether nunc pro tunc relief, in the form of a retroactive grant of adjustment of status, would be appropriate. In that case, the petitioner departed the U.S. under an order of voluntary departure while his adjustment application was pending, then returned to the U.S. illegally, thus becoming ineligible for adjustment for a mandatory period of 10 years under INA § 212(a)(9)(C). The court remanded the case to the BIA to determine whether he should be granted adjustment nunc pro tunc, thereby erasing his violation of § 212(a)(9)(C) by rendering his return to the U.S. legal instead of illegal. 19

16

Citing Edwards v. INS, 393 F.3d 299, 308 (2nd Cir. 2004). In Corona-Mendez, the applicant had applied for both § 237(a)(1)(H) relief and nunc pro tunc relief. 18 21 I&N Dec. 254 (BIA 1996). 19 Ramirez-Canales v. Mukasey is a pretty complicated case; nevertheless, it illustrates one possible use of the equitable power of nunc pro tunc relief. 17

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Nunc pro tunc permission to reapply for admission, an administrative practice not expressly authorized by statute, is available only in the limited circumstances where a grant of such relief would effect a complete disposition of the case, i.e., where the only ground of deportability or inadmissibility would be eliminated or where the alien would receive a grant of adjustment of status in conjunction with the grant of any appropriate waivers of inadmissibility.

Finally, several courts have held that nunc pro tunc relief is not available to those who are applying for a stand-alone § 212(h) waiver in removal proceedings. Matter of Rivas, 26 I&N Dec. 130 (BIA 2013) aff’d Rivas v. Att’y Gen. of the U.S., 765 F.3d 1324 (11th Cir. 2014); Fayzullina v. Holder, 777 F.3d 807, (6th Cir. 2015); Palma-Martinez v. Lynch, 785 F.3d 1147 (7th Cir. 2015). See discussion of possible defense strategies for this situation in Chapter 6, § 6.5. D.

Cancellation of Removal for Non-Permanent Residents under INA § 240A(b)(1)

Cancellation of removal for non-permanent residents under § 240A(b)(1) is another potential remedy for those who have been found to be deportable under INA § 237(a)(1)(A) because they were inadmissible at the time of their initial LPR admission, and who are therefore ineligible for LPR Cancellation of removal under INA § 240A(a). 20 However, this is the least useful of these remedies, because it is so difficult to qualify for this form of relief. The following is a brief synopsis of non-LPR cancellation of removal. For a more detailed discussion of this remedy, see ILRC’s publication Hardship in Immigration Law, available for purchase at www.ilrc.org. As with LPR cancellation of removal, a person can only apply if he or she is in removal proceedings. In addition, the person must meet the following requirements:

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1. continuous physical presence in the U.S. continuously for at least ten years; 2. good moral character for at least 10 years; 3. no convictions for certain offenses [crimes listed in INA §§ 212(a)(2), 237(a)(2), 21 or 237(a)(3)]; 22 and 4. deportation would cause exceptional and extremely unusual hardship to the applicant’s lawful permanent resident (LPR) or U.S. citizen spouse, child, or parent. 1. Continuous physical presence Like continuous residence for LPR cancellation of removal, continuous physical presence for non-LPR cancellation of removal is subject to the stop time rule. This means that the continuous physical presence automatically ends upon either the issuance of the NTA or upon the commission of certain offenses, whichever is earlier. 23 The stop time rule with respect to criminal offenses is rarely invoked in non-LPR cancellation of removal cases, however, because of the additional specific criminal bars to eligibility (see number 3 below). In addition to the stop time rule, for non-LPR cancellation of removal a single absence of 90 days, or aggregate absences of 180 days, interrupts continuous physical presence. INA § 240A(d)(2).

20

See Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003). A conviction under § 237(a)(2), in this context, includes a crime of moral turpitude with a potential sentence of one year, regardless of whether or not it was committed within five years of the applicant’s admission date. See Matter of Cortez-Canales, 25 I&N Dec. 301 (BIA 2010). 22 Under INA § 240A(b)(5), there is an exception to these criminal bars if the person qualifies for a domestic violence waiver under INA § 237(a)(7). The § 237(a)(7) waiver is discussed below in § 8.2. 23 The stop time rule is explained in Chapter 4, § 4.4, Subsection B. 21

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2. Good moral character An applicant for non-LPR cancellation of removal must also show ten years of good moral character in order to qualify for relief. However, unlike continuous physical presence, there is no stop time rule for good moral character. The BIA ruled in Matter of Ortega-Cabrera 24 that an application for cancellation of removal remains a continuing one for purposes of evaluating an applicant’s good moral character, meaning that the ten-year period for which good moral character must be established ends with the entry of a final administrative (BIA) decision.

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As with other forms of relief that require good moral character, your client will be statutorily barred if he or she has committed any of the offenses listed in INA § 101(f): • • • • •

• • • • • • •

3. Criminal bars to relief A person who is convicted of the following offenses described in INA §§ 212(a)(2), 237(a)(2) or 237(a)(3) is barred from INA § 240A(b) cancellation eligibility: • • • • • 24

a crime involving moral turpitude (but not one that falls within the petty offense or youthful offender exceptions) an offense relating to controlled substances two or more offenses that brought a total of five years or more sentence imposed prostitution, if the person has “engaged in” that business aggravated felony

23 I&N Dec. 793 (2005).

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•

Being convicted of or admitted committing a drug offense, except a single conviction of possession of less than 30 grams of marijuana [this would be a § 212(a)(2) conviction]; Being inadmissible for conviction or admission of a crime involving moral turpitude [this would be a § 212(a)(2) conviction]; Immigration authorities have “reason to believe” the applicant is or was a drug trafficker; Receiving a total sentence of five years for two or more convictions [this is a § 212(a)(2) conviction]; Engaging in prostitution or other commercialized vice, whether or not there is a conviction [this falls under § 212(a)(2)(D)]; Alien smuggling, regardless of who is smuggled and regardless of whether or not the smuggler was paid (even crossing the border with an undocumented relative, or urging the relative to cross, could cause an applicant problems when trying to show good moral character); Being a habitual drunkard; Living off of, or having had two or more convictions for, illegal gambling; Giving false testimony to get or keep immigration benefits; Coming to the U.S. to practice polygamy; Spending 180 days or more in jail for a conviction or convictions; Being convicted of murder at any time (a permanent bar to good moral character); or Being convicted of an aggravated felony on or after November 29, 1990 (also a permanent bar to good moral character).

• • • • • •

high speed flight from immigration checkpoint firearms offense espionage, treason, sedition, Selective Service Act or Trading with the Enemy violation, entry/departure permit fraud, importation of aliens for immoral purposes, threats against the president and military expeditions against friendly nations domestic violence, stalking, or child abuse, neglect or abandonment 25 failure to register and document fraud, under the listed federal acts and false claim to U.S. citizenship failure to register as a sex offender

Most of the time anyone who falls within these grounds would also be barred both by the stop time rule and the good moral character requirement. Nevertheless, these additional bars pose an additional obstacle to those seeking this form of relief. There is one exception to certain of these grounds, for those who qualify for the domestic violence waiver in INA 237(a)(7). 26 See INA § 240A(b)(5).

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4. Exceptional and extremely unusual hardship Exceptional and extremely unusual hardship is usually the most difficult requirement for people applying for non-LPR cancellation of removal cases to prove. The applicant must show that deportation will cause exceptional and extremely unusual hardship to her U.S. citizen or lawful permanent resident children, spouse, or parents, and no other relative. 27 Hardship to an adult son or daughter (21 years of age or older) who is a U.S. citizen or lawful permanent resident does not count. The child, in order to be a qualifying relative, must continue to meet the definition of a child at the time the IJ adjudicates the case. Matter of Isidro, 25 I&N Dec. 829 (BIA 2012). In the case Matter of Monreal, 28 the BIA ruled that the standard of exceptional and extremely unusual hardship requires a showing of hardship which is “substantially” beyond the ordinary hardship that would be expected when a close family member leaves the country and is limited to “truly exceptional” situations. In Matter of Monreal, the court cited the following specific examples of what factors would be considered in determining exceptional and extremely unusual hardship: •

The fact that an applicant has elderly parents who are permanent residents or U.S. citizens living in the U.S. and who are solely dependent upon the applicant for support;

•

The fact that an applicant has a U.S. citizen or permanent resident child living in the U.S., who has compelling health issues, or compelling special needs in school; and

25

However, both the BIA and the Ninth Circuit have held that any convictions of these particular offenses that occurred prior to the enactment of IIRIRA on September 30, 1996, will not retroactively bar non-LPR cancellation eligibility. Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007); Mota v. Mukasey, 543 F.3d 1165 (9th Cir. Sept. 17, 2008). Still, some of these offenses could “count” under the “crimes of moral turpitude” bar, and therefore would still bar eligibility. 26 See § 8.2 below. 27 Statutory relatives include step-parents and step-children. See Matter of Morales, 25 I&N Dec. 186 (BIA 2010) and Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009). 28 23 I&N Dec 56 (2001).

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•

The effects of forcing a U.S. citizen or permanent resident family member to live in a country with a lower standard of living or with adverse country conditions (such as civil war), but generally these effects will not be sufficient alone to show exceptional and extremely unusual hardship.

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Matter of Monreal, at 63–64. In addition, the BIA held that courts must consider all the hardship factors that an applicant’s U.S. citizen and permanent resident spouse, parent, and child will suffer together, in total. Matter of Monreal; see also Matter of Recinas, 23 I&N Dec. 457 (BIA 2002). Although the exceptional and extremely unusual hardship standard is high, and difficult to meet, BIA has emphasized that the hardship required need not be unconscionable for someone to qualify for relief. Matter of Monreal, at 60; Matter of Recinas, at 468. In fact, in Matter of Recinas, the applicant was granted cancellation of removal despite the fact that the hardship factors in her case, individually, would not have been enough to meet the exceptional and extremely unusual hardship standard. Nevertheless, when considered cumulatively, they were found to be just enough to make her eligible for relief. Matter of Recinas, at 470. The hardship factors identified by the BIA in her case were the following: The respondent has raised her family in the United States since 1988, and her four U.S. citizen children know no other way of life;

•

The respondent’s children do not speak Spanish well, and they are unable to read or write in that language;

•

Unlike the children in Monreal and Matter of Andazola, 29 the respondent’s four U.S. citizen children are entirely dependent on their single mother for support;

•

The respondent is divorced from the children’s father, and there is no indication that he remains involved in their lives in any manner. This increases the hardship the children would face upon return to Mexico, as they would be completely dependent on their mother’s ability, not only to find adequate employment and housing, but also to provide for their emotional needs.

•

The assistance from respondent’s lawful permanent resident mother has enabled her to support her children within a stable environment.

•

The respondent’s ability to provide for her the needs of her family will be severely hampered by the fact that she has no family in Mexico who can help care for her six children.

•

As a single mother, the respondent will experience difficulties in finding work, especially work that will allow her to provide a safe and supportive home for her children.

29

Matter of Andazola, 23 I&N 319 (BIA 2002) is another key non-LPR Cancellation of removal case that defines the “exceptional and extremely unusual” hardship standard.

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•

•

The respondent’s prospects for lawful immigration through her U.S. citizen siblings or LPR parents are unrealistic due to the backlog of visa availability for Mexican nationals, and there are no other methods of adjustment available to any of the respondents.

•

The respondent’s lawful permanent resident and U.S. citizen relatives form part of a strong system of family support that the respondent and her US citizen children would lose if they are removed from the U.S.

Recinas, at 471-472. In granting this case, the BIA indicated that the hardship factors in this case were more different in degree than in kind from those present in Matter of Monreal, and Matter of Andazola, where cancellation of removal had been denied. Recinas, at 472. Nevertheless, the BIA stated that it was not departing from its analysis in those cases. Rather, it found that the cumulative effect of the hardship factors in Matter of Recinas were sufficiently unusual and atypical to justify a finding that the “exceptional and extremely unusual hardship standard had been met. Recinas, at 472-473. 5. Additional bars to eligibility for non-LPR cancellation of removal As with LPR cancellation of removal under INA § 240A(a), non-LPR cancellation of removal under INA § 240A(b)(1), is not available to the following people:

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1. People who already have received cancellation of removal, suspension of deportation, or § 212(c) relief; 2. People who persecuted others, or are inadmissible or deportable under the antiterrorist grounds; and 3. Crewmen who entered after June 30, 1964, and certain “J” visa exchange visitors (those who either received graduate medical education or failed to satisfy their two-year requirement). INA § 240A(c). 30 Non-LPR cancellation of removal is not a particularly useful remedy for permanent residents facing removal. Nevertheless, we include it here for your information as it may provide an important legal option for some. E.

NACARA Suspension/Cancellation of Removal 1. Eligible individuals

Under NACARA 31 suspension/cancellation of removal, certain individuals from El Salvador, Guatemala, and former Eastern Bloc countries are eligible for cancellation of removal under the old, former INA § 244 suspension of deportation rules, which are far more generous than nonLPR cancellation of removal. For LPRs who were admitted to the U.S. as permanent residents in error, and who meet the NACARA criteria, this is another potential remedy. 30

These are the same restrictions that apply to LPR Cancellation of Removal. See Chapter 4. Nicaraguan Adjustment and Central American Relief Act, enacted as Title II of the District of Columbia Appropriations Act for fiscal year 1998, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997). The NACARA provisions discussed here are codified at IIRIRA § 309(c)(5) as amended by NACARA § 203(a)(1), and IIRIRA § 309(f) as created by NACARA § 203(b). See 8 CFR §§ 240.61-240.66. 31

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The following groups of persons are eligible for suspension/cancellation benefits, provided that they have not been convicted of an aggravated felony: Salvadoran nationals:

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(1) who first entered the U.S. on or before September 19, 1990 and registered for benefits under the American Baptist Churches v. Thornburgh (ABC) 32 settlement agreement on or before October 31, 1991 (either by submitting an ABC registration or by applying for temporary protected status [TPS]), unless apprehended at the time of entry after December 19, 1990, or (2) who filed an application for asylum with the INS on or before April 1, 1990. Guatemalan nationals: (1) who first entered the U.S. on or before October 1, 1990 and registered for ABC benefits on or before December 31, 1991, unless apprehended at the time of entry after December 19, 1990, or (2) who filed an application for asylum with the INS April 1, 1990.

Nationals of the former Soviet Union, Russia, any republic of the former Soviet Union, Latvia, Estonia, Lithuania, Poland, former Czechoslovakia, Romania, Hungary, Bulgaria, Albania, former East Germany, Yugoslavia or any state of the former Yugoslavia: (1) who entered the U.S. on or before December 31, 1990, (2) who applied for asylum on or before December 31, 1991, and (3) who were nationals of one of the above-mentioned countries at the time the asylum application was filed. 34 8 CFR §§ 240.61 & 1240.61. Dependents. The spouse or an unmarried child under 21 years of age of a person who is granted suspension under the NACARA provisions can also be granted NACARA benefits as long as the relationship between the spouse or child and the individual granted the benefit exists at the time

32

American Baptist Church v. Thornburgh, 60 F. Supp. 796 (N.D. Cal. 1991). The ABC Settlement Agreement can be found on the USCIS website at: www.uscis.gov/laws/legalsettlement-notices/american-baptist-churches-v-thornburgh-abc-settlement-agreement. 34 Some of these countries are no longer in existence. 33

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Note: Some NACARA cases can be adjudicated by Asylum offices. To be eligible for such adjudication, Salvadorans must have filed an asylum application by February 16, 1996 or within 90 days of issuance of Notice 5 (Notice 5 informed Salvadorans of the requirement to file the asylum application) and Guatemalans must have filed an asylum application by January 3, 1995. Salvadorans and Guatemalans who had filed asylum applications before the ABC Settlement Agreement was entered into on January 1991 were not required to file a new application, though they could if they wished to apply. 33

that the decision to grant the suspension or cancellation benefit is made. 8 CFR §§ 240.61 & 1240.61. Under the VAWA amendments, relief was extended to noncitizens who were battered or abused by a parent or spouse who is a NACARA recipient. The rules are different for unmarried sons or daughters over 21 years of age of an individual granted suspension under the NACARA provisions. They must have entered the U.S. on or before October 1, 1990 in order to qualify for NACARA based on the principal applicant’s grant of relief. 8 CFR §§ 240.61 & 1240.61. According to the statute, ABC Salvadorans and Guatemalans apprehended at the time of entry on or after December 19, 1990 are not eligible for NACARA benefits. However, Salvadorans and Guatemalans who qualify as dependents of a NACARA-eligible spouse or parent or as persons who applied for asylum before April 1, 1990 are not subject to this bar. 2. Requirements

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The applicant must meet the following additional requirements in order to qualify for suspension/cancellation: 1. maintain continuous presence in the U.S. for seven years; 2. possess good moral character; 3. demonstrate that returning to the country of origin would result in extreme hardship to the applicant or to the applicant’s child, spouse, or parent who is a U.S. citizen or lawful permanent resident (LPR); and 4. merit a favorable exercise of discretion. IIRIRA § 309(f), as created by NACARA § 203(b); see also 8 CFR §§ 240.65 & 1240.65, 240.66 & 1240.66. NACARA is more generous than non-LPR cancellation of removal with respect to physical presence, because a single absence of 90 days or aggregate absences of 180 days or more will not stop physical presence. In addition, there is no stop time rule as there is for non-LPR cancellation of removal, so the commission of an offense or the filing of the NTA will not stop accumulation of the required physical presence. The hardship requirement of NACARA suspension/cancellation is also much more generous. Not only is the standard of hardship lower (extreme v. exceptional and extremely unusual) but hardship to the applicant him or herself counts, in addition to hardship to U.S. citizen or LPR family members. Furthermore, there is a rebuttable presumption of extreme hardship for principal applicants for NACARA. See 8 CFR §§ 240.64(d) & 1240.64(d). The factors that can be considered to establish extreme hardship are also established by regulation: 1. The age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation; 2. The age, number, and immigration status of the alien’s children and their ability to speak the native language and to adjust to life in the country of return;

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3. The health condition of the alien or the alien’s children, spouse, or parents and the availability of any required medical treatment in the country to which the alien would be returned; 4. The alien’s ability to obtain employment in the country to which the alien would be returned; 5. The length of residence in the United States; 6. The existence of other family members who are or will be legally residing in the United States; 7. The financial impact of the alien’s departure; 8. The impact of a disruption of educational opportunities; 9. The psychological impact of the alien’s deportation; 10. The current political and economic conditions in the country to which the alien would be returned; 11. Family and other ties to the country to which the alien would be returned; 12. Contributions to and ties to a community in the United States, including the degree of integration into society; 13. Immigration history, including authorized residence in the United States; and 14. The availability of other means of adjusting to permanent resident status.

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8 CFR §§ 240.58(b) &1240.58(b).

3. Restrictions on NACARA suspension and cancellation eligibility Under both NACARA suspension and special rule cancellation of removal, a much more restrictive eligibility standard applies to individuals who are deportable or inadmissible because of criminal convictions or certain other enumerated grounds. These individuals must establish that they were continuously present in the United States for a period of 10 years after the commission of the crime or conduct that made them deportable or inadmissible, and they must show that their deportation would cause “exceptional and extremely unusual hardship” to themselves or their spouse, parent, or child, i.e., they must have been able to qualify under the former “ten-year” suspension. 8 CFR §§ 240.65(c), 1240.65(c), 240.66(c) & 1240.66(c). Ten-Year Suspension. This heightened standard applies to applicants for NACARA suspension if they are deportable or inadmissible because of criminal or security grounds under former INA 35

In the Second Circuit, an alien is not eligible for relief under NACARA when the alien was paroled into the U.S. and later ordered to be excluded. Because a parolee was never admitted into the U.S., the court found that the NACARA relief was only available for deportable aliens and not those in exclusion proceedings. Tanov v. INS, 2006 WL 860694 (2nd Cir. 2006).

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NACARA-eligible persons who were placed in deportation proceedings prior to April 1, 1997 may apply for suspension of deportation. 8 CFR §§ 240.65(a) & 1240.65(a). Individuals who were not placed in deportation or exclusion proceedings by this date may apply for “special rule” cancellation of removal. 35 The eligibility requirements for NACARA suspension and cancellation are similar but not identical. Therefore, it is important to determine under which of the two forms of NACARA relief your client is eligible. The most important practical differences between the two are issues concerning absences from the U.S. and limitations to relief. See 8 CFR §§ 240.65 & 240.66.

§ 241(a)(2), (3), or (4). See 8 CFR §§ 240.65(c) & 1240.65(c). This includes all of the criminal grounds of deportability; 36 failure to register, having a conviction for falsification of documents, or being the subject of a civil document fraud final order, 37 and any of the national security or terrorist grounds of deportability. 38 Ten-Year Special Rule Cancellation. Similarly, applicants for special rule cancellation who are deportable or inadmissible under the criminal and certain other grounds are subject to the statute’s heightened eligibility standards. 39 The application of the heightened standards applies differently to those who are inadmissible compared to those who are deportable. For those who are deportable, the heightened standards apply in more specific circumstances (see below). The rationale for this distinction is similar to that of the general inadmissibility/removal grounds—the burden is higher for the government in removing (deporting) someone than in proving inadmissibility. An applicant for special rule cancellation is subject to the heightened eligibility standards if he or she is inadmissible or deportable based on the following grounds: 1. Inadmissible under INA § 212(a)(2) [criminal grounds of inadmissibility—see Chapter 2]; 2.

Deportable under INA § 237(a)(2) except for conviction of an aggravated felony* [includes crimes of moral turpitude, controlled substance offenses and domestic violence convictions and/or violations of protection orders on or after September 30, 1996, etc.];

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3. Deportable under INA § 237(a)(3) [includes false claims of U.S. citizenship on or after September 30, 1996, failure to register, falsification of documents or having a civil document fraud final order]. *Recall that conviction of an aggravated felony is a bar to NACARA. 8 CFR §§ 240.66(c) & 1240.66(c). These more restrictive eligibility standards, similar to the former ten-year suspension, only apply to individuals who are charged with and found to be deportable (or inadmissible, in removal proceedings) for one of the specified grounds.40 Good Moral Character. Applicants under both suspension and special rule cancellation must also satisfy the good moral character requirement. See INA § 101(f). In the case of those with convictions, the ten years of good moral character are counted from the date of the conviction. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

36

Former INA § 241(a)(2), former 8 USC § 1251(a)(2). Former INA § 241(a)(3), former 8 USC § 1251(a)(3). 38 Former INA § 241(a)(4). 39 IIRIRA § 309(f)(1)(a), as amended by NACARA § 203(b); 8 CFR § 240.66(c). 40 Matter of Ching, 12 I&N Dec. 710 (BIA 1968). See also Matter of Fortiz-Zelaya, Int. Dec. 3340 (BIA 1998) (finding that an alien must be charged with, and found, deportable as an aggravated felon to be barred from INA § 212(c) relief). 37

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§ 8.2

Special Domestic Violence Waiver under INA § 237(a)(7)

Added by VAWA 2000, INA § 237(a)(7) provides for a waiver of the domestic violence ground of deportability found in INA § 237(a)(2)(E)—with the exception of the crimes of child abuse— for a person “who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship.”

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In some domestic violence situations, a victim will strike back at his or her abuser or strike out to prevent further abuse, and sometimes this results in a conviction. This waiver was designed to protect such individuals, who would otherwise be deportable under INA § 237(a)(2)(E)(i), or who would otherwise be barred from certain forms of relief, such as Non-LPR cancellation of removal under INA § 240A(b)(1) and VAWA cancellation of removal under INA § 240A(b)(2) on good moral character grounds.41 This waiver can be granted under the following circumstances: 1. Where the applicant was acting in self-defense; 2. Where the applicant was found to have violated a protective order intended to protect him or herself; or 3. Where the applicant committed, or was arrested for, or was convicted of or pled guilty to a crime: a. That did not result in serious bodily injury; and b. Where there was a connection between the crime and the applicant’s having been battered or subjected to extreme cruelty. In adjudicating this waiver, “any credible evidence” may be considered. This is an expansive definition, and is the same standard of evidence that exists for VAWA self-petitioners and VAWA cancellation of removal applicants. Example: Nari, an LPR, has been battered by her husband for many years. During one incident when he was beating her, she tried to defend herself with a pen in her hand, resulting in a small cut on his forehead. She was convicted of a domestic violence related assault. She should be able to qualify for the waiver with some credible evidence of the ongoing abuse she had been suffering. Such evidence could include her own detailed and credible declaration, and would be made even stronger by an evaluation by a mental health professional who is knowledgeable about domestic violence. This special waiver is an important remedy, because it is far more generous than § 212(h) and LPR cancellation of removal under INA § 240A(a). For example, even though a domestic violence offense is by definition a crime of violence, there is no requirement that the applicant prove “extraordinary circumstances” or “exceptional and extremely unusual hardship,” as there is with § 212(h), 42 and there is no stop time rule barring eligibility as there is in LPR cancellation cases. 43 It also can waive the criminal bars to non-LPR cancellation of removal for domestic 41

Though we do not discuss VAWA cancellation of removal in this manual because it would affect so few permanent residents, this remedy is fully explained in Immigrant Legal Resource Center’s VAWA Manual (www.ilrc.org). 42 See Chapter 6, § 6.7, Subsection A. 43 See Chapter 4, § 4.4, Subsection B.

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INA § 237(a)(7)(A).

violence offenses. See INA § 240A(b)(1)(C), described above at § 8.1, Subsection D above, and INA § 240A(b)(5). § 8.3

Adjustment of Status

In some cases, a deportable permanent resident can apply for adjustment of status under INA § 245(a) as a defense to removal. Applying for adjustment of status is an especially useful alternative if the person is not eligible for LPR cancellation of removal, for example due to the stop-time rule or an aggravated felony conviction. (See Chapter 7 for a related discussion comparing requirements for, and benefits of, applications for LPR cancellation versus § 212(h) relief.)

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This section will review adjustment of status as a removal defense for permanent residents. For information on family visa petitions and adjustment of status applications generally, see A Guide for Immigration Advocates: A Comprehensive Immigration Resource Manual available at www.ilrc.org. Permanent residents are legally permitted to adjust status. 44 However, a permanent resident cannot recapture a priority date or re-use a visa petition that already has been used to obtain lawful permanent residency. 45 Thus a permanent resident cannot “re-immigrate” based on a preference visa relationship (e.g., permanent resident spouse or parent) without a great deal of advance planning, because there will be a legally mandated waiting period of some years before the new visa can be used. In contrast, there is no mandated waiting period for a permanent resident who is an immediate relative of a U.S. citizen (who is a spouse, a parent of a child age 21 or older, or an unmarried child under age 21 of a citizen). Thus, the first requirement for this defense is for the LPR to have a qualifying family member who can file the immediate relative petition. An adjustment applicant also must be admissible, or if inadmissible must be eligible to apply for and be granted a waiver such as the § 212(h) waiver for crimes 46 or the former § 212(c) waiver for permanent residents with older convictions. 47 Significantly, if the permanent resident is permitted to adjust, he or she will no longer be deportable. 48 In Matter of Rainford, 20 I&N Dec. 598 (BIA 1992), which involved a firearms offense, the immigration judge pretermitted the respondent’s application for adjustment of status, reasoning that even if it were granted, he still would be deportable under the firearms ground. The BIA reversed, holding that his deportable offense would not preclude him from showing admissibility for purposes of adjustment under INA § 245(a), and that if granted adjustment of status, he would no longer be deportable based on the conviction. Matter of Rainford, 602.

44

See, e.g., Matter of Rivas, 26 I&N Dec. 130 (BIA 2013), Matter of Rainford 20 I&N Dec. 598 (BIA 1992); Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993); Matter of Parodi, 17 I&N 608, 611 (BIA 1980), Matter of Loo, 15 I&N 307 (BIA 1975). 45 Matter of Villarreal-Zuniga, 23 I&N Dec. 886 (BIA 2006). 46 See Chapter 6. 47 See Chapter 5. 48 See Matter of Rainford, Matter of Gabryelsky, supra.

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Adjustment of status as a defense to removal can be used in a number of fact situations. Example: Stan is a permanent resident who is married to a U.S. citizen. He is deportable under INA§ 237(a)(2)(E), based on a conviction for a misdemeanor crime of child abuse. He is not eligible for LPR cancellation because he has been a permanent resident for only three years. But if his U.S. citizen wife submits a new immediate relative visa petition for him, he can apply to adjust status as a defense to removal. If the child abuse conviction also makes him inadmissible under the moral turpitude ground (meaning, if it is a crime involving moral turpitude that does not come within the petty offense exception), he can submit an application for a waiver of inadmissibility under INA § 212(h) in conjunction with the adjustment application. He must not be subject to and barred by LPR restrictions on § 212(h). 49 If the judge permits him to adjust status, he will no longer be deportable.

Example: Salvatore is a long-time permanent resident who was convicted of several minor drug offenses before he stopped using drugs in 1994. In 2014 and 2015 he was convicted of fraud offenses, which made him deportable under the moral turpitude ground. He can’t apply for cancellation of removal because of the stop-time rule. He can apply for § 212(c) relief to waive the drug convictions, but he still will be deportable for the fraud convictions. If a family member can file an immediate relative visa petition for him, Salvatore could apply for adjustment of status in conjunction with both a § 212(c) and a § 212(h) waiver application. 51 If the adjustment and the waiver applications are granted, he will no longer be deportable. In some cases, it is much harder to win an application for adjustment of status than an application for LPR cancellation, due to standards of proof and discretion. An applicant for LPR cancellation must show factors such as rehabilitation, and in many instances these cases are won even if the conviction was serious. See Chapter 4. In contrast, if the permanent resident submits an

49 Some, but not all, permanent residents must have accrued seven years of continuous lawful residence before being served with an NTA, in order to apply for § 212(h). See INA 212(h)(2), discussed at Chapter 6, § 6.4. 50 For some, but not all, permanent residents, conviction of an aggravated felony is a bar to eligibility. See INA 212(h)(2), discussed at Chapter 6, § 6.4. 51 See Matter of Gabryelsky, supra.

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Example: Swecha is a permanent resident who has a 23-year-old U.S. citizen daughter. Swecha is deportable under INA § 237(a)(2)(A)(iii) for conviction of an aggravated felony, based on a theft offense for which she received a suspended sentence of one year. She is not eligible for LPR cancellation because the offense is an aggravated felony. However, she could apply to adjust status based on an immediate relative visa petition filed by her daughter. If the theft offense also makes her inadmissible under the moral turpitude ground, she can submit an application for a § 212(h) waiver. She must not be subject to and barred by the LPR restrictions on § 212(h). 50 If the judge permits her to adjust status, she will no longer be deportable for the aggravated felony.

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application for § 212(h) relief with the adjustment application, in most cases 52 she must prove that a qualifying relative would face “extreme hardship” if she were deported. If a conviction is found to be of a “dangerous or violent” offense, an application for a § 212(h) waiver will be denied as a matter of discretion if the applicant cannot make a very difficult showing of “extraordinary circumstances.” 53 Further, in at least one case a court upheld employing the “dangerous or violent” standard to deny an application for adjustment of status, where no § 212(h) waiver was involved. 54 If the adjustment of status application is denied, the person can attempt to re-immigrate through consular processing. § 8.4 Naturalization as a Remedy to Removal Proceedings: Termination of Removal/Deportation Proceedings under 8 CFR § 1239.2(f) [formerly 8 CFR § 239.2(f) and 8 CFR § 242.7(e)]

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Lawful permanent residents may be placed in removal proceedings as the result of something that has been revealed in the naturalization process, whether it’s an old conviction or a flaw in the person’s original eligibility for permanent residence. For those whose initial grant of permanent residence was lawful, naturalization can sometimes be a remedy in removal proceedings. A complete discussion of the naturalization process is beyond the scope of this manual. 55 This section focuses only on using naturalization as a remedy against removal. Nevertheless, in the context of this discussion, bear in mind that applicants must meet the following basic requirements to be eligible for naturalization: • • • • •

be a lawful permanent resident; be at least 18 years old; have good moral character 56 (please note there are bars to establishing good moral character); be able to read, write, and speak basic English; be able to demonstrate knowledge sufficient to pass a test on U.S. history and government;

52

This requirement does not apply if the person comes within INA § 212(h)(1)(A) or (C), for example because the conviction is 15 years old. See discussion at Chapter 6, § 6.3. 53 For example, 8 CFR § 212.7(d) provides that a § 212(h) waiver will be denied as a matter of discretion “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that the denial of the application … would result in exceptional and extremely unusual hardship.” In some cases, even that will be insufficient. See discussion at Chapter 6, § 6.7. 54 See, e.g., Torres-Validivias v. Lynch, 786 F.3d 1147 (9th Cir. 2015) (upholding the BIA’s denial of application for adjustment of status based on its finding that the misdemeanor sexual battery conviction was a “dangerous or violent” offense; the conviction did not cause inadmissibility because it came within the petty offense exception to the moral turpitude inadmissibility ground). 55 For more information on applications for naturalization, see the Immigrant Legal Resource Center manual, Naturalization and U.S. Citizenship: The Essential Legal Guide, available for purchase at www.ilrc.org/publications. 56 Good moral character is defined in INA § 101(f) and is also discussed above in § 8.1, Subsection C.2 above.

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• • • •

have been a permanent residence in the U.S. for at least five years (three years for spouses of U.S. citizens); never have disrupted the continuity of residence in the United States during any of the last five years because of long absences nor abandoned her residence in the United States; have been physically present in the U.S. for at least half of the five-year period (or half of the three-year period if married to a U.S. citizen); and take a loyalty oath to the U.S. and be attached to the principles of the U.S. Constitution.

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When a person is put in removal proceedings either because he or she is found removable through the naturalization process or other means, USCIS cannot consider her naturalization application. See 8 CFR § 318.1. No application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this or any other Act. INA § 318. Federal regulation permits an immigration judge presiding over a removal hearing (until April 1, 1997 called a deportation hearing to close the person’s removal hearing to permit them to continue with the naturalization process if she can show that she is prima facie eligible for naturalization and there are exceptional factors in the case.

See 8 CFR § 1239.2(f) [formerly 8 CFR §§ 239.2(f) and 242.7(e)]; see also INS Operations Instructions 318.2(c)(1)(ii). In 2007, the Board of Immigration Appeals significantly limited the immigration judge’s ability to terminate the proceedings under this regulation by ruling that the judge does not have the authority to determine whether the person is prima facie eligible for naturalization. Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007). Only DHS may issue an affirmative statement that the applicant is prima facie eligible. 57 The Second, Third, Fourth, Fifth, Sixth, and Ninth Circuits have validated this interpretation. 58 While immigration judges cannot determine prima facie 57

Matter of Acosta Hidalgo. Note that this prima facie eligibility determination if made may not necessarily bind USCIS as to the final decision of the naturalization application once removal proceedings are terminated. Cuong Quang Le. v. McNamee, 2006 WL 3004524 *6-7 (D. Oregon 2006). 58 Shewchun v. Holder, 658 F.3d 557, 565 (6th Cir, 2011); Barnes v. Holder, 625 F.3d 801, 808 (4th Cir. 2010); Zegrean v. Attorney General of the U.S., 602 F.3d 273,274 (3rd Cir. 2010); Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. 2010); Perriello v. Napolitano, 579 F.3d 135 (2nd Cir. 2009) (the regulation does not allow an IJ to terminate removal proceedings unless the alien has obtained an affirmative communication from DHA stating prima facie eligibility for naturalization); Hernandez de Anderson v. Gonzales, 497 F.3d 927, 934-35 (9th Cir. 2007)(holding that the BIA’s plain reading of 8 CFR. 1239.2(f) in Acosta Hidalgo

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An immigration judge may terminate removal proceedings to permit the respondent to proceed to a final hearing on a pending application or petition for naturalization, when the respondent has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; in every other case, the deportation hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings.

eligibility, it remains open whether the declaration of prima facie eligibility can come from a district court or not. 59

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In some cases, USCIS mistakenly adjudicates naturalization applications while removal proceedings are pending. 60 Because USCIS does not have authority under INA § 318 to consider the application while removal proceedings are pending, the BIA held that an adjudication of the naturalization application itself is not considered an affirmative communication from USCIS. 61 This means that by refusing to provide a statement on prima facie eligibility, USCIS can prevent immigration judges from exercising their discretion to terminate removal proceedings. The BIA and Ninth Circuit have both agreed that USCIS has this veto power.62 This means in practice that it will probably be unlikely that many people will be able to obtain a termination of their removal proceedings to move forward with a naturalization application. Moreover, the Second Circuit has clarified that once removal proceedings have commenced, DHS may not consider a naturalization application, so it would be impossible for a non-citizen to establish prima facie eligibility. 63

was not clearly erroneous because the text of the regulation does not specifically authorize immigration judges to evaluate prima facie eligibility). 59 Barnes, 625 F.3d at 804-06 (DHS has sole authority to make the prima facie determination); SabaBakare v. Chertoff, 507 F.3d 337, 341 (5th Cir. 2007); but see Hernandez de Anderson v. Gonzales, 497 F.3d at 933-34, n.2 (declining to address whether district courts can make the prima facie determination). See also Matter of Acosta Hidalgo, 24 I&N Dec. 103, 105. 60 See, e.g., Matter of Acosta Hidalgo, and Saba-Bakare, above. 61 Matter of Acosta Hidalgo. 62 In Hernandez de Anderson, the Ninth Circuit held that such veto power does not violate 8 CFR § 1239.2(f) because if DHS fails to state that the person is prima facie eligible then the DHS is virtually certain to deny naturalization. The court also rejected an argument that DHS has been given too much authority over naturalization and removal decisions in this context reasoning that Congress has plenary power over immigration to delegate immigration decision-making authority. See also Matter of Acosta Hidalgo, above, at 107-108. 63 Perriello v. Napolitano, 579 F.3d 135 (2nd Cir. 2009). In Perriello, the court explained that the 1990 Immigration Act reformed the naturalization process, eliminating final hearings in federal court and establishing that the sole authority to naturalize persons as citizens was conferred upon the Attorney General. Id. at 139. Also, the Immigration Act froze the processing of naturalization applications while removal proceedings were pending. Id. at 140. The court noted that in Matter of Acosta Hidalgo, the BIA did not take into consideration the Immigration Act’s changes, which “limited administrative review of naturalization applications while removal proceedings [were] pending.” Id. The court held that non-citizens could “no longer apply for naturalization after removal proceedings have commenced and then move for termination of the removal proceedings,” for once removal proceedings have commenced, “DHS [was] barred by the [Immigration Act] from considering an alien’s application.” Id. at 141. See also Zegrean, 692 F.3d at 274.

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In sum, it is up to the discretion of USCIS to make a prima facie eligibility determination. 64 It is unclear whether the applicant can appeal such a determination if made. 65 There are at least three possible scenarios that practitioners should know could occur under such circumstances.

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1. USCIS determines that the person is prima facie eligible, the immigration judge can terminate the removal proceedings and the USCIS could then adjudicate the naturalization application. If the application is denied, the person may appeal the decision to the district court. 2. If USCIS determines that the person is not prima facie eligible, it remains unclear whether the person can appeal such a decision to federal court. At least three Circuit Courts have held that the denial of an application for naturalization on the basis of pending removal proceedings can be appealed, however, review is limited to such denial and cannot extend to determining a naturalization application on the merits. 66 3. USCIS could deny a naturalization application based on other grounds such as lack of good moral character. The person could appeal the denial to federal court. While there is no guarantee that USCIS will issue a prima facie eligibility statement or an immigration judge will terminate proceedings after it is issued, some practitioners have had successes in this arena. At least two federal courts ordered USCIS to find that an applicant had good moral character so that the applicant could request termination of proceedings. 67

64

Cuong Quang Le, above (Relying on the BIA’s decision in Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), the District Court of Oregon did not say that USCIS must determine prima facie eligibility, but held that on the record INA § 318 and 9th Circuit precedent does not prohibit USCIS from making the determination). 65 See, e.g., Saba-Bakar v. Chertoff, 507 F.3d 337, 341 (5th Cir. 2007) (“If the statutory framework created by Congress renders the determination of prima facie eligibility for naturalization unreviewable by any court, this may indeed present a persuasive equitable concern. But this concern should be addressed to Congress, not this court.”) 66 Saba-Bakare, above at 340-41; Bellajaro v. Schiltgen, 378 F.3d 1042, 1046-47 (9th Cir. 2004); Zayed v. United States, 368 F.3d 902, 906 (6th Cir. 2004). 67 Gatcliffe v. Reno, 23 F.Supp.2nd 581 (D.V.I.1998), reported in Interpreter Releases, November 9, 1998, p. 1553 (District Court reversed INS holding that the naturalization applicant could not establish good moral character solely because of events outside the five-year period; remanded the case to removal proceedings so that the applicant could apply to terminate proceedings and proceed to naturalization). See also Ngwana v. Attorney General, 40 F. Supp. 2d. 319 (D. Md. 1999) (ordering the INS to naturalize the applicant, at a time when removal proceedings were pending against the applicant, but there was not yet a final order of removal). But some circuits have held that the federal district courts have limited ability to review a naturalization application when DHS will not grant relief due to pending removal proceedings. Specifically, if the agency did not adjudicate the naturalization application on the merits of the application or the agency did not have the power to adjudication the application under INA § 318, then on appeal that application may not be adjudicated by a district court either. Saba-Bakare, above at 340-41; Bellajaro v. Schiltgen, 378 F.3d 1042 (9th Cir. 2004); Cuong Quang Le, above (affirming Bellajaro that the scope of review is limited to only the determination made by the agency); Tellez v. INS, 91 F.Supp.2d 1356 (C.D.Cal. 2000) (upholding denial of applicant’s motion to terminate removal proceedings).

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How does this provision affect persons convicted of an aggravated felony? Conviction of an aggravated felony is a “permanent” bar to establishing good moral character if, and only if, the

conviction occurred on or after November 29, 1990 (except for murder, which is a permanent bar to establishing good moral character regardless of the date of conviction). 68 For example, a person who was convicted of drug trafficking on November 28, 1990 has been convicted of an aggravated felony for many purposes, but not for the purpose of the permanent bar to good moral character. If the person has no other problems within the last five years (or three years if applying as the spouse of a U.S. citizen) that would bar a finding of good moral character, and otherwise is eligible for naturalization, the judge arguably has the authority to terminate proceedings under 8 CFR § 1239.2(f) after the person receives a prima facie eligibility statement from USCIS. If, however, the aggravated felony conviction occurred on or after November 29, 1990, the person is permanently barred from establishing good moral character and thus cannot qualify for naturalization. If a person has established exemplary character during the required five-year period (or three years for persons married to U.S. citizens), then USCIS may not deny naturalization based solely on convictions or other events that took place before the good moral character period. 69 § 8.5

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A.

Acquisition and Derivation of U.S. Citizenship

Acquisition of U.S. Citizenship

In some circumstances, a U.S. citizen may transmit citizenship to her child, even though the child is born outside of the United States. This is known as acquisition of U.S. citizenship. 70 Children who qualify are U.S. citizens at birth and have full rights of citizenship, and may not be deported or excluded for any reason. The laws regarding acquisition of U.S. citizenship have undergone several revisions and can be complex. Which law applies depends on the law in effect at the time of the client’s birth. Five issues will affect whether a person born outside of the United States is a U.S. citizen. They are: 1. 2. 3. 4. 5.

whether the person’s parents were married when she was born; 71 the person’s date of birth; whether one or both of the parents was a U.S. citizen when the person was born; how long the citizen parent resided in the U.S. prior to the person’s birth; and whether the person has satisfied requirements for residency in the U.S.

Threshold Questions for Acquisition of Citizenship. At the time of the client’s birth, was a parent or grandparent of the client a U.S. citizen? If the answer is yes, practitioners should analyze whether the client acquired U.S. citizenship at birth. Turn to Appendix 8-A in the back of this unit. The information on Chart A and Chart B can help you and a client determine whether she acquired U.S. citizenship at birth. Remember, even if the 68

8 CFR § 316.10(b)(1). See, e.g., Hovespian v. Gonzales, 422 F.3d 883, 886 (9th Cir. 2005); Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996). 70 See INA §§ 301, 309. 71 Although illegitimate children can acquire citizenship at birth outside of the U.S. under certain circumstances, adopted and stepchildren can never acquire citizenship at birth outside of the U.S. 69

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client’s parents were born outside of the United States, check to see if one of the client’s grandparents may have been born in the United States. Then you can use the charts to check if one or both of the client’s parents acquired U.S. citizenship at birth through their parents (the client’s grandparents). If one of the client’s parents did acquire U.S. citizenship, then U.S. citizenship may have been transmitted from the client’s parent to the client. 72

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Example: Marta was born in the United States and therefore is a U.S. citizen. She went back to Mexico to give birth to her baby, Serena, in 1980. Serena lived in the U.S. for some time, believing herself to be undocumented. She went back to Mexico after she finished her studies and had a son, Samuel, in 2002. Serena and Samuel entered the U.S. without inspection, believing themselves to be undocumented. In fact, Marta may have passed on citizenship to Serena, who may have passed it to Samuel. B.

Derivation of U.S. Citizenship

1. At least one parent of the child is a U.S. citizen, either by birth or naturalization. 2. The child is under 18; 3. The child is residing in the U.S. in the legal and physical custody of the U.S. citizen parent. INA § 320(a). This provision also confers U.S. citizenship on orphans who were adopted abroad by U.S. citizens. Upon their arrival in the U.S. as LPRs, they automatically acquire U.S. citizenship. See INA § 320(b). As with acquisition of U.S. citizenship, the laws governing derivation of citizenship have changed many times. See Appendix 8-B for a chart that will help you determine if your client derived U.S. citizenship under prior law. The relevant date on the chart is the date the last requirement under the relevant law was met. Example: Sam entered the U.S. with a visitor visa in 1996 to visit his LPR mother, Lucia. Before he came to the U.S., he had been living with his father, Raul, in Mexico. Sam’s parents are divorced. After his arrival, both he and his parents decided he should stay with Lucia so that he would have better educational opportunities and Lucia obtained 72

For a detailed explanation of acquisition of citizenship, see ILRC’s publication Naturalization & U.S. Citizenship: The Essential Legal Guide, available for purchase at www.ilrc.org/publications. 73 Pub. L. 106-395, enacted October 30, 2000.

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Permanent residents may actually be U.S. citizens by operation of law without knowing it. Often this happens when a client has been a permanent resident, and one or both of his parents naturalized before he turned 18. Sometimes, a child who entered the U.S. as a permanent resident automatically acquires U.S. citizenship upon his or her arrival in the U.S. The current rules governing derivation of U.S. citizenship were established by the Child Citizenship Act of 2000,73 effective February 27, 2001, and are found at INA § 320. Under the Child Citizenship Act of 2000, to have become a U.S. citizen through either the naturalization of a parent, or through admission to the U.S. as the child of a U.S. citizen parent, the following three requirements must be met:

legal and physical custody of Sam. Lucia filed an I-130 visa petition on his behalf in 1997. Lucia naturalized in 1998, when Sam was 16, thereby making him an immediate relative. Sam adjusted status to permanent residence on January 15, 1999, when he was 17. The relevant date for consulting the chart is January 15, 1999, because that is the date that Sam met the last requirement for derivation of citizenship by becoming an LPR before he turned 18. The rules governing derivation of citizenship that applied at that time required that: 1. either both parents, or a sole custodial parent, naturalized, 2. before the child turned 18, and 3. while he was a lawful permanent resident All three of these requirements were met in 1999, when Sam adjusted status. He could not derive citizenship before he became an LPR, although he acquired U.S. citizenship at the same time that he became an LPR under the rules then in effect governing derivation. 74

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§ 8.6

Asylum, Withholding of Removal & Relief under the Convention Against Torture (CAT)

Asylum, withholding of removal and CAT relief protect those in danger of persecution and/or torture in their home countries. For those LPRs in removal proceedings who originally came to the United States as refugees, whose countries are hostile to the United States or are experiencing significant human rights abuses or war, or otherwise fear persecution or torture, should be informed of the possibility of applying for asylum, withholding of removal, and/or CAT relief as a defense to removal, especially where other remedies are not likely to succeed. If granted asylum, an individual may apply for permanent residence one year after the asylum grant under INA § 209; however those granted withholding of removal or CAT relief have no permanent status in the U.S. and are not eligible for permanent residence through those remedies. The following is a brief discussion of these three remedies; however an exhaustive treatment of each is beyond the scope of this manual, and we recommend that you consult other references that describe these remedies more completely. 75 A.

Asylum

An individual will be granted asylum if he or she fears can show either past persecution or a wellfounded fear of future persecution on account of race, nationality, religion, political opinion, or membership in a social group. INA § 208; INS v. Cardoza-Fonseca, 107 S.Ct. 1207 (1987). In order to show a well-founded fear of persecution, there must be a “reasonable possibility” of persecution. INS v. Cardoza-Fonseca. The applicant bears the burden of proving that he or she 74 For a detailed explanation of derivation of citizenship, see ILRC’s publication Naturalization & U.S. Citizenship: The Essential Legal Guide, available for purchase at www.ilrc.org/publications. 75 For more on asylum law see generally Silverman, et al, Essentials of Asylum Law, available for purchase at www.ilrc.org/publications, and Anker, Law of Asylum in the United States (Thomson Reuters); Kesselbrenner and Rosenberg, Immigration Law and Crimes (Thomson Reuters), § 9.3(b).

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meets the requirements for asylum eligibility. INA § 208(b)(1)(B). This includes showing that he or she cannot be safe in another part of the country of feared persecution. See 8 CFR § 208.13(b)(1)(i)(B). Asylum is a discretionary remedy, meaning that the government is not required to grant asylum if there are adverse factors that warrant denial. INS v. Cardoza-Fonseca.

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Persecution is defined as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I&N Dec. 211, at 222. Substantial economic deprivation can amount to persecution, in addition to other forms of abuse. Koval v. Gonzales, 418 F.3d 798, 805-806 (7th Cir. 2005). However, it does not include mere discrimination, except in extraordinary circumstances. See Sharari v. Gonzales, 407 F.3d 467 (1st Cir. 2005). 76 The threat of persecution need not come from the government, but may be from groups that the government is unwilling or unable to control. Favlova v. INS, 441 F.3d 82 (1d Cir. 2006); see also Arteaga v. INS, 836 F.2d at 1231 (9th Cir. 1988) and Bolaños-Hernandez v. INS, 767 F. 2d at 1281 (9th Cir. 1984).

Certain individuals are barred from asylum eligibility, and some of these bars often apply to permanent resident clients. Such individuals include: • • • • • •

Anyone who participated in the persecution of another on account of race, religion, nationality, membership in a particular social group or political opinion; Anyone convicted of a “particularly serious crime” in the United States (including any aggravated felony conviction). Where there are “serious reasons” to believe that the applicant committed a “serious nonpolitical crime” outside the U.S. Where there are reasonable grounds for regarding the applicant as a danger to the security of the U.S. The individual is a terrorist as defined in parts of INA § 212(a)(3)(B)(i) and in § 237(a)(4). The individual was “firmly resettled” in another country.

INA § 208(b)(2)(A). Asylum law is extremely complex, and this discussion only scratches the surface of it. Therefore, if you think that it is worth applying for asylum for a permanent resident client in removal proceedings, you need to consult other references that specifically focus on asylum. 76

There are many, many cases attempting to define what “persecution” means, and different circuits have defined it in different ways.

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Generally, applicants for asylum must file their applications within one year of arrival in the U.S. However, there is an exception to that rule if the person has been in some other lawful status prior to filing the application and files it within a reasonable time thereafter. Therefore, if your client is an LPR the one-year deadline may not apply. See 8 CFR § 208.4(a)(5). Other important exceptions to keep in mind for a late filing of asylum are the existence of “changed circumstances … which materially affect the applicant’s eligibility for asylum” or “extraordinary circumstances” relating to the delay in filing the application. See INA § 208(a)(2)(D).

B.

Withholding of Removal

Withholding of removal, under INA § 241(b)(3) 77 is similar to asylum, but has several significant differences. For one thing, the burden of proof for withholding of removal is higher. Individuals must prove that they would be persecuted if returned to their home countries on account of race, nationality, religion, political opinion, or membership in a social group. This means they must prove there is a “clear probability” that they would suffer such persecution if returned to the home country. INS v. Stevic, 104 S.Ct. 2489 (1984). If a person meets this higher burden of proof, a grant of withholding of removal is mandatory. See INS v. Cardoza-Fonseca, above.

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There are also restrictions on a person’s eligibility for withholding of removal that are similar, but not identical, to the restrictions on asylum eligibility under INA § 241(b)(3)(B). The bars for those who assisted in the persecution of others, those who fall under the security and terrorism grounds in INA § 237(a)(4), those whom the government has reason to believe committed a “serious nonpolitical crime” outside the U.S., and those for whom there are reasonable grounds to regard them as a danger to the security of the U.S. are more or less the same as the bars for asylum enumerated above. However, there is no “firm resettlement” bar, and while there is a bar for a conviction of a “particularly serious crime,” what constitutes a particularly serious crime is defined differently for withholding of removal than it is for asylum in that it does not bar everyone with an aggravated felony conviction. It does apply to those who have been “convicted of an aggravated felony (or felonies) for which the [individual] has been sentenced to an aggregate term of imprisonment of at least 5 years.” INA § 241(b)(3)(B). The statute also permits the Attorney General to define other crimes as “particularly serious crimes” regardless of the sentence imposed. INA § 241(b)(3)(B). In addition, the statute specifically holds that those found deportable under the terrorism grounds in INA § 237(a)(4)(B) are a “danger to the security of the United States.” INA § 241(b)(3)(B). A grant of withholding of removal prevents the United States from returning that individual to the country of persecution and entitles him to employment authorization, but does not entitle him to apply for permanent residence. INA § 241(b)(3). C.

Relief under the Convention Against Torture

The Convention Against Torture (CAT) is a treaty that was signed into law and ratified by the United States and is therefore not a part of the INA. The CAT provides protection from removal to noncitizens fearing torture in the home country who do not qualify for asylum or restriction on removal because of criminal convictions, or because they cannot establish that the persecution was based on race, religion, ethnic group, political opinion, or membership in a social group. There is no restriction for those convicted of a particularly serious crime, as there is for asylum and restriction on removal.

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This used to be called “withholding of deportation” under former § 243(h) of the INA and is sometimes still referred to as “withholding of removal.” See Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007).

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To qualify for CAT protection, the applicant must show that it is “more likely than not” that he would be tortured in the proposed country of removal. 78 The definition of “torture” is fairly complex and the subject of litigation 79 but it involves three basic requirements: • • •

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the infliction of severe pain or suffering, either mental or physical; the torture is specifically intended to inflict severe pain or suffering; the torture is “acquiesced to” by a public official (requiring prior awareness by the official and a subsequent breach of legal authority). 80

Lawful punishment or sanctions are not considered torture under CAT or the INS regulations. 81

In Matter of G-A-, 84 the Board of Immigration Appeals in a unanimous en banc opinion found that an Iranian Christian of Armenian descent demonstrated eligibility under the CAT by establishing that it would be more likely than not that he would be tortured if deported to Iran,

78

8 CFR § 208.16(c)(2). See, e.g., different approaches in Matter of J-E-, 23 I&N Dec. 291 (BIA 2002); Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001). 80 8 CFR 208.18(a). See Morales v. Gonzales, 478 F.3d 972, 984-85 (9th Cir. 2007) for an analysis of how the definition of this requirement is to be interpreted. 81 8 CFR § 208.18(a)(3). For additional discussion on the definition of torture under CAT and the U.S. legislation, see Kristen B. Rosati, Article 3 of the U.N. Convention Against Torture: A Powerful Tool to Prevent Removal Just Became More Powerful, 4 Bender’s Immigration Bulletin 137, 139-42 (February 15, 1999). 82 Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000), followed in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). 83 See Hakim v. Holder, 628 F.3d 151, 156-57 (5th Cir. 2010); Silva-Rengifo v. Att'y Gen., 473 F.3d 58, 65 (3d Cir. 2007); Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006); Lopez-Soto v. Ashcroft, 383 F.3d 228, 240-41 (4th Cir. 2004), rehearing en banc granted, review withdrawn pursuant to settlement, (July 26, 2005); Khouzam v. Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004). 84 23 I&N Dec. 366 (BIA 2002). 79

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The CAT regulations also require that the torture feared must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 CFR 208.18(a)(1). In Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003), the Ninth Circuit corrected the BIA’s definition of “acquiescence,” which was “willful acceptance.” The Ninth Circuit defined “acquiescence” as awareness coupled with an unwillingness or inability to intervene. Zheng involved a child who, after testifying in federal prosecution against Chinese smugglers, established that there was likelihood that he would be tortured by them if he was returned to China. The BIA had ruled that even assuming that corrupt Chinese officials were aware of the smuggling and supported it, the applicant had failed to prove their acquiescence in the torture. The Court remanded for the BIA to make a new decision consistent with the court’s definition of “acquiescence.” The Court also specifically disapproved of Matter of S-V-, where the BIA had found that although in Colombia guerrillas are officially recognized as controlling 40% of the country, torture by the guerillas did not constitute torture by a government or with government acquiescence. 82 The Second, Third, Fourth, Fifth, and Sixth Circuits have followed Zheng v. Ashcroft. 83

based on a combination of factors, including his religion, ethnicity, duration of residence in the U.S., and his drug-related convictions in the U.S. However, in Matter of M-B-A-, 85 a divided en banc Board found that a Nigerian convicted of a drug offense in the United States failed to establish eligibility for the CAT, because the evidence she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law Enforcement Agency against individuals similarly situated to her was insufficient to demonstrate that it was more likely than not that she would be tortured by a public official, or at the instigation or with the consent or acquiescence of such an official, if she was deported to Nigeria. The dissenters found that the evidence presented was sufficient to show enforcement of the decree and torture in Nigerian prisons. There are two forms of relief under CAT, withholding of removal and deferral of removal. Individuals may be granted withholding of removal under CAT if they do not fall within any of the mandatory bars to restriction on removal in INA § 241(b)(3)(B), discussed above. See 8 CFR § 208.16(c). If an individual does fall within one of these mandatory bars, he or she may seek deferral of removal. See 8 CFR § 208.17.

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The government is not required to release those granted deferral of removal from custody. See 8 CFR § 208.17(b)(1)(ii), (c). In addition, the government may order the person removed to a third country. 8 CFR § 208.17(b)(2). Finally, the government can make a motion to terminate the noncitizen’s deferral of removal at any time. This is a complex area of law and therefore we urge you to consult other treatises that describe this remedy in greater depth if you intend to seek CAT relief for your permanent resident client. § 8.7

Remedies for Victims and/or Witnesses to Crimes

Permanent residents are frequently placed in removal proceedings for violations of the criminal grounds of inadmissibility or deportability. Practitioners should bear in mind that immigrants are at times the victims or witnesses of criminal activity, even if they have their own criminal records. For this reason, we include in this chapter a discussion of battered spouse (VAWA) cancellation of removal under INA § 240A(b)(2), the U visa and the S visa. The majority of your permanent resident clients may be eligible for other forms of relief from removal, but for a few permanent resident clients, VAWA cancellation of removal, or the U or S visa may be the only potential remedies available. See additional online updates and materials at www.ilrc.org/u-visa-t-visa-vawa. A.

Battered Spouse (VAWA) Cancellation of Removal under INA § 240A(b)(2)

In 1994 Congress created the Violence Against Women Act (“VAWA”), which allows abused spouses and children of lawful permanent residents or U.S. citizens to apply for cancellation of removal (and in some instances, suspension of deportation). Amendments to VAWA enacted in 2000 and 2005 made it easier for an abused spouse or child to qualify for cancellation and suspension. Someone who is already a Lawful Permanent Resident is eligible for this form of relief, if otherwise eligible. Matter of A-M-, 25 I&N Dec. 66 (BIA 2009). 85

23 I&N Dec. 474 (BIA 2002).

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Like non-permanent resident cancellation of removal under INA § 240A(b)(1), VAWA cancellation stops removal proceedings and allows the applicant to obtain (or re-obtain, in the case of a former LPR) lawful permanent residence. Unlike the ten-year requirement for nonpermanent resident cancellation, described above, VAWA cancellation only requires the applicant to have continual physical presence for the last three years. In addition, VAWA applicants are not subject to the “exceptional and extremely unusual” hardship requirement, but must only show that removal would cause “extreme” hardship to the applicant and/or her child or parent. However, VAWA applicants must satisfy additional requirements beyond proving continuous physical presence, good moral character, and extreme hardship.

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The basic requirements for VAWA cancellation are listed below; however, a complete discussion of this remedy is beyond the scope of this manual. 86 The applicant must show that: he or she has been battered or subject to extreme cruelty by a spouse, former spouse, or parent who is or was a U.S. citizen or lawful permanent resident, or he or she is the parent of a child who has been battered or subjected to extreme cruelty by a U.S. citizen or permanent resident parent; or

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he or she has been battered or subject to extreme cruelty by a U.S. citizen or lawful permanent resident whom the person intended to marry, but whose marriage is not legitimate due to the abuser’s bigamy; and

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the abuser must be or must once have been either a U.S. citizen or a lawful permanent resident;

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he or she has been continuously physically present in the U.S. for at least three years before applying for cancellation;

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he or she has had good moral character for three years immediately prior to the final administrative decision in her case;

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he or she is not inadmissible under most of the criminal grounds of inadmissibility and deportability such as conviction of an aggravated felony, as well as grounds related to false claims to U.S. citizenship, commission of document or marriage fraud, security and terrorist activities;

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the removal of the applicant would cause extreme hardship to the applicant, the applicant’s child or to the applicant’s parent; and

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the judge has the discretion to grant or deny the case even if the applicant meets all the other eligibility requirements. 1. Definition of abuse

Immigration judges often refer to VAWA self-petitioning guidelines for the definition of battery and extreme cruelty for this form of cancellation of removal. “Battery” and “extreme cruelty” are described as “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” Violence is then defined as “psychological or 86

See ILRC’s publication The VAWA Manual, available for purchase at www.ilrc.org/publications.

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•

sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution,” including “other abusive actions … that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence.” 8 CFR § 204.2(c)(1)(vi). Many practitioners argue that extreme cruelty includes children witnessing abuse. Applicants must show proof of the abuse (the abuse need not have taken place in the U.S.) Evidence can include a civil protection order, police records, criminal court records, complaints filed by the applicant, medical records, school records, evidence of torn clothing or broken furniture, photographs of injuries, an affidavit from the client detailing her relationship with the abuser, affidavits from witnesses, (friends, relatives who can corroborate the client’s statements), or affidavits from shelter workers, counselors, social workers, clergy, and experts on domestic violence. Because children of abused spouses cannot be derivative beneficiaries of their abused parent’s cancellation application, they may apply for cancellation (or self-petition) themselves and try to argue that witnessing the abuse of their parent constitutes extreme cruelty. However, children of parents granted VAWA cancellation and parents of children granted VAWA cancellation are granted parole, so that they are not subject to removal. INA § 240A(b)(2)(D)(4).

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2. Status of the abuser The applicant needs to show that the abuser either is or was either a U.S. citizen or lawful permanent resident. The cancellation applicant does not have to show that the abuser’s loss of status was connected to the abuse, as in the VAWA self-petitioning process. Moreover, the abuse did not have to occur while the abuser had lawful permanent residence. If the abuser is an LPR, the judge may want to see a copy of his permanent resident card. Minimally, the spouse/child should submit the abuser’s “A” number, if the victim knows the number. A proof problem may arise if the abuser was born in the United States and has never filed a visa petition on behalf of any family member because the DHS may have no record of the abuser. If so, an applicant must obtain the abuser’s U.S. birth certificate or U.S. passport. A request for the birth certificate may be made by writing to the Department of Vital Statistics, an agency found in every state. Regulations governing proof of the abuser’s immigration status allow applicants to submit other evidence. Additionally, the statute requires judges to consider “any credible evidence.” Family court judges may help by requiring abusers to provide information about their status. 3. Continuous physical presence of three years VAWA cancellation of removal and suspension of deportation applicants must show three years of continuous physical presence in the U.S. immediately prior to the application for VAWA cancellation or suspension. However, two of the requirements for accrual of continuous physical presence are relaxed for applicants for VAWA cancellation. First, the issuance of a Notice to Appear or Order to Show Cause does not stop the accumulation of time towards the three-year period. This means applicants may qualify for cancellation even if they receive their hearing notices before they acquire three years’ presence in the United States, as long as they acquire the three years by the time they submit their cancellation applications. However, VAWA cancellation applicants are subject to the same “stop-time” rule as applicants for LPR cancelation of removal, as described in Chapter 4 of this manual.

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4. Good moral character The definition of good moral character for VAWA cancellation or suspension applicants is generally the same as for the regular, ten-year cancellation of removal provision for nonpermanent residents. There is, however, an important exception:

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An act or conviction that is not a specific bar to VAWA cancellation or suspension eligibility will not bar a finding of good moral character if the act or conviction was connected to the abuse and if the immigration judge determines that a waiver is otherwise warranted. INA § 240A(b)(2)(C). Remember that the immigration judge has the discretion to review the applicant’s record for good moral character for periods of time preceding the three years. Guidance on the exception to the good moral character requirement for VAWA self-petitioners has been provided by USCIS. 87 The exception to good moral character bars that is available for VAWA self-petitioners is not identical to the waiver of the good moral character requirement for VAWA cancellation applicants, and a USCIS memo is not binding on immigration judges. Nevertheless, a judge deciding a VAWA cancellation application may consider the USCIS memo to be persuasive.

The USCIS memo specifically addresses this connection requirement, defining “connected to” as requiring a showing that the abuse experienced by the self-petitioner “compelled or coerced” the self-petitioner to commit the act or crime that precludes good moral character. “In other words, the evidence should establish that the self-petitioner would not have committed the act or crime in the absence of the battering or extreme cruelty.” Self-petitioners need not show that the act or conviction occurred during the marriage to the USC or LPR abuser, however. In addition to demonstrating the absence of a statutory bar to good moral character or eligibility for a waiver of such a bar, the applicant must also present sufficient information to allow the adjudicator to conclude that he or she is a person of good moral character. The applicant should state in his or her affidavit that he or she is of good moral character. In addition, the application form (Form EOIR-42B) instructs the applicant to submit police records from each jurisdiction where the applicant has lived for six months or more during the past three years. The instructions also recommend that the applicant submit affidavits from witnesses, including the applicant’s employer, who can knowledgeably attest to the applicant’s good moral character. Children under 14 years of age are presumed to be of good moral character and do not need to submit the police reports.

87

William R. Yates, Ass. Dir. Opers. USCIS, Memo re: Determinations of Good Moral Character in VAWA-Based Self-Petitions (Jan. 19, 2005).

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Under the VAWA self-petitioning exception for good moral character, USCIS may find that a self-petitioner is of good moral character even if he or she falls under one of the statutory bars in INA § 101(f), if (1) the disqualifying act or conviction is waivable for inadmissibility or deportability purposes and (2) the disqualifying act or conviction is connected to the abuse suffered by the self-petitioner. Thus, both the VAWA cancellation good moral character waiver and the VAWA self-petitioning exception for good moral character require a showing of a connection between the disqualifying act and the abuse.

5. Criminal bars to eligibility The statute provides that the applicant must not be inadmissible under INA §§ 212(a)(2) or (3), or deportable under INA §§ 237(a)(1)(G) or 237(a)(2)-(4) in order to be eligible for VAWA cancellation of removal. INA § 240A(b)(2)(A)(iv). The same waiver for victims of domestic violence that applies to non-permanent resident cancellation of removal applicants also applies to VAWA cancellation applicants. See INA §§ 240A(b)(2)(A)(iv), 240A(b)(5) and 237(a)(7). Applicants are also barred from VAWA cancellation eligibility if they have been convicted of an aggravated felony. INA § 240A(b)(2)(A)(iv).

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6. Extreme hardship requirement Victims of battery or extreme cruelty need to show only that removal from the U.S. would cause extreme hardship to the applicant, the applicant’s child(ren) or the applicant’s parents. The VAWA cancellation hardship requirement is different from non-LPR cancellation in several significant ways: First, there is no requirement that the child or parent be a U.S. citizen or LPR. Second, hardship to the spouse (i.e., the abuser in the VAWA context) does not count. Third, hardship to the applicant herself is explicitly considered. Finally, “extreme hardship” is a lower standard than the higher standard of “exceptional and extremely unusual hardship” for non-LPR cancellation of removal. While the standard is lower and more inclusive of different forms of hardship, the applicant must clearly establish extreme hardship, as failure to do so will result in a denial, even if the applicant meets all of the other requirements. B.

The U Visa and Adjustment of Status as a U Visa Holder 88

The U visa is a nonimmigrant (temporary) status that allows non-citizen victims of crime to stay in the United States, obtain employment authorization, and apply for lawful permanent resident status. It can be applied for from within the U.S. or from abroad, so long as all the requirements are met. 89 Certain family members are also eligible to be included in the case and receive the same benefits as the principal. § 101(a)(15)(U)(ii). It was created by the Victims of Trafficking and Violence Prevention Act, 90 enacted in October 2000, and was amended by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (hereinafter referred to as “VAWA 2005”), 91 enacted in January 2006, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 92 enacted in December 2008; and the Violence Against Women Reauthorization Act of 2013 combined with the Trafficking Victims Protection Reauthorization Act (TVPRA), signed in to law on March 7, 2013. When Congress created the U nonimmigrant status in 2000, the intention was to protect immigrant victims of certain crimes who have gathered the courage to come forward, report the 88

For more information on the U visa and U visa adjustment, see ILRC’s publication: The U Visa: Obtaining Immigration Status for Immigrant Victims of Crime, available for purchase at www.ilrc.org. 89 The terms “U visa” and “U nonimmigrant status” are often used interchangeably but “U nonimmigrant status’ is granted to those applicants already residing in the U.S. while a “U visa” is a document granted to applicants abroad which allows them to enter the U.S. lawfully. 90 Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA]; also known as the BIWPA. 91 Pub. L. 109-162, 119 Stat. 2960 (Jan. 5, 2006). 92 Pub L. 110-457 (Dec. 23, 2008).

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crime, and assist in its investigation and prosecution. The purpose of this is two-fold. First, it enhances law enforcement’s ability to investigate and prosecute crimes. Second, it furthers humanitarian interests by protecting victims of serious crimes. It is important to remember that the U visa not only is helpful to law enforcement but is also intended to protect victims.

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The U visa is available to non-citizens who have suffered substantial physical or mental abuse as a result of having been a victim of rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law. INA § 101(a)(15)(U)(iii).

The rule defines a ‘‘certifying agency’’ as a federal, state, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of the qualifying criminal activities designated in the BIWPA (VAWA legislation). 94 8 CFR 214.14(a)(2). This includes traditional law enforcement branches within the criminal justice system. However, USCIS also recognizes that other agencies, such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor, have criminal investigative jurisdiction in their respective areas of expertise. The rule specifies these agencies. The advantage of the U visa for permanent resident clients who have no other avenue for relief from removal is that almost every ground of inadmissibility can be waived. This is because the 93

See the preamble to the U visa regulations, at 72 Fed. Reg. 53014-53042 (No. 179) (Monday, September 17, 2007), at p. 53021. 94 Battered Immigrant Women Protection Act of 2000 (BIWPA) [this is how DHS refers to the VAWA legislation in the regulations]. See Victims of Trafficking and Violence Protection Act of 2000, div. B, Violence Against Women Act of 2000, tit. V, Battered Immigrant Women Protection Act of 2000, Pub. L. 106-386, sec. 1513, 114 Stat. 1464, 1533-37 (2000), amended by Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), tit. VIII, Pub. L. 109-162, 119 Stat. 2960 (2006), amended by Violence Against Women and Department of Justice Reauthorization Act -Technical Corrections, Pub. L. 109-271, 120 Stat. 750 (2006).

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The U visa is only available to victims of a qualifying crime who can show that they suffered substantial physical or mental abuse from one of the statutorily listed crimes and that they have assisted in some way in the investigation or prosecution of the crime. Applicants for U nonimmigrant status therefore must provide a certification of their helpfulness from a federal, state or local law enforcement official demonstrating that the applicant ‘‘has been helpful, is being helpful, or is likely to be helpful’’ in the investigation or prosecution of the qualifying criminal activity. INA § 214(p)(1). This means that the individual must submit, along with the U visa application on form I-918, a certification form, on form I-918B that has been signed by a designated person at a law enforcement agency. USCIS interprets ‘‘helpful’’ to mean assisting law enforcement authorities in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim. USCIS is excluding from eligibility those victims who, after initiating cooperation, refuse to provide continuing assistance when reasonably requested. 8 CFR § 214.14(b)(3). 93

waiver is specific to U nonimmigrant status and grants the Secretary of Homeland Security the discretion to waive any ground of inadmissibility, except the grounds applicable to participants in Nazi persecutions, genocide, acts of torture, or extrajudicial killings. INA § 212(d)(14). 95 Thus, permanent residents who may be ineligible for LPR cancellation of removal or a § 212(h) waiver because they have been convicted of aggravated felonies or are barred because they don’t meet the residence requirements for those remedies 96 could be eligible for a U visa, if they also meet the other requirements for a U visa. However, the Secretary of Homeland Security first must determine that such a waiver would be in the public or national interest. 97

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Waivers for other violent or dangerous crimes will still be difficult to obtain, as DHS has incorporated the limits on granting waivers of inadmissibility into the regulations at 8 CFR § 212.7(d). The preamble to the regulations states that DHS will only exercise favorable discretion in U nonimmigrant status cases in which a waiver for violent or dangerous crimes or the security and related grounds under § 212(a)(3) of the Act is requested, in extraordinary circumstances. Moreover, depending on the nature and severity of the underlying offense/s to be waived, the Secretary retains the discretion to determine that the mere existence of extraordinary circumstances is insufficient. 98 There is an annual limit of 10,000 U visas per fiscal year. INA § 214(p)(2)(A). The annual cap has been reached for several years, which has created a backlog. As a result, U visa applicants should expect to wait several years before receiving a decision on their case. However, USCIS will issue preliminary determinations on cases in the queue, which can allow applicants to be granted deferred action and eligible for work authorization. 8 CFR 214.14(d)(3). Given the volume of cases, it will take time for such a preliminary determination to be issued, at the time of writing this chapter, approximately two years or more. U nonimmigrant status is granted for a period of up to four years. INA § 214(p)(6). However, this period of status may be extended in certain situations. After three years in continuous U visa status, the non-citizen may be able to adjust status to obtain lawful permanent residence. INA § 245(m). There are also provisions to allow derivative U visa holders to apply for permanent resident status. INA § 245(m)(3). The U visa adjustment regulations, which were issued on December 12, 2008, are similar to the U nonimmigrant visa regulations. 99 Applicants for adjustment as U visa holders must prove that they are currently in valid U visa status, that they have at least 3 years of physical presence in the U.S. (as U visa holders) at the time the adjustment application is filed, that they have not (since obtaining the U visa) unreasonably refused to provide assistance to a law enforcement agency in the investigation or prosecution of the qualifying crime, and that their presence in the United States is justified on humanitarian grounds, to ensure family unity, or is in the public interest. 95

Waivers are filed on Form I-192, the nonimmigrant visa waiver form. See Chapter 4, § 4.4 and Chapter 6, § 6.4 respectively for analyses of the residence requirements for LPR Cancellation of Removal and § 212(h). 97 Preamble to the U visa regulations, at 72 Fed. Reg. 53014-53042 (No. 179) (Monday, September 17, 2007), at p. 53021. 98 Preamble to the U visa regulations, at 72 Fed. Reg. 53014-53042 (No. 179) (Monday, September 17, 2007), at p. 53021-22. 99 73 Fed. Reg. 75540-75564 (December 12, 2008) (to be codified at 8 CFR 245.23 and 245.24). 96

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Applicants are not eligible for adjustment if their U nonimmigrant status has been revoked. 8 CFR § 245.24(c). As with the U nonimmigrant visa, the only ground of inadmissibility that cannot be waived is INA § 212(a)(3)(E). Otherwise the grounds of inadmissibility do not apply to U visa adjustment applicants, and therefore, unlike other adjustment applicants, a form I-601 does not need to be submitted. INA § 245(m)(1). 100 However, the applicant must provide evidence that a waiver of inadmissibility should be granted, and bear the burden of showing that discretion should be exercised in his or her favor. 8 CFR § 245.24(d)(11).

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In making a discretionary determination, USCIS may take into account all adverse factors, including acts that would otherwise render the applicant inadmissible. Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, it will be necessary for the applicant to offset these factors by showing sufficient mitigating factors. This rule permits applicants to submit information regarding any mitigating factors they would like USCIS to consider when determining whether a favorable exercise of discretion is appropriate. 8 CFR § 245.24(d)(11). 101

At the time of this writing, U nonimmigrant status is not available to persons who are currently in lawful permanent resident status. Therefore, in order to obtain this remedy, applicants must no longer be permanent residents to be granted U nonimmigrant status. In a worst-case scenario, an LPR may be removed and apply for U nonimmigrant status from outside the country. In this case, the applicant will be able to waive the prior removal order under INA § 212(d)(14) with a Form I192 and then process through the consulate to obtain the U visa. However, in some cases, applicants have been able to have their LPR status removed and obtain U nonimmigrant status without leaving the country.

100

As noted above, however, U nonimmigrant status applicants must submit a nonimmigrant waiver of inadmissibility (on form I-192) if they are inadmissible, including being inadmissible for entry without inspection. 101 73 Fed. Reg. 75540-75564 (December 12, 2008), at p. 75549. 102 Once again, the government cites to the holding in Matter of Jean, 23 I&N Dec. 383 (BIA 2002), now codified at 8 CFR § 212.7(d). See 73 Fed. Reg. 75540-75564 (December 12, 2008), at p. 75549.

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Depending on the nature of an applicant’s adverse factors, the applicant may be required to demonstrate clearly that the denial of adjustment of status would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s adverse factors, such a showing might still be insufficient. 102 USCIS will generally not exercise its discretion favorably in cases where the applicant has committed or been convicted of a serious violent crime, a crime involving sexual abuse committed upon a child, or multiple drug-related crimes, or where there are security- or terrorism-related concerns.

C.

The S Visa 103

Congress enacted legislation to temporarily establish the “S” nonimmigrant visa category for alien witnesses and informants as part of the Violent Crime Control Act of 1994. 104 Congress enacted legislation to make the S visa permanent in 2001. 105 In 2005, oversight of the S visa program was transferred to Immigration and Customs Enforcement (ICE) in the Department of Homeland Security.

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There are two kinds of S visas. For both types, the applicant must be willing to supply or have supplied information to federal authorities. The S-5 classification may be granted to a foreign national who has been determined by the Attorney General to possess critical, reliable information concerning a criminal organization or enterprise. The number of witnesses or informants granted S-5 status in a fiscal year may not exceed 200. INA § 214(j)(1). The S-6 category of classification may be granted to an alien who the Attorney General and Secretary of State have determined possesses critical, reliable information concerning a terrorist organization, operation, or enterprise. The person also must be eligible to receive a cash reward under § 36(a) of the State Department Basic Authorities Act of 1956. INA § 214(j)(1). Only 50 visas can be issued in this category in any one fiscal year. Requests for both of these visas must be filed by a state or federal law enforcement agency. As with the U visa, the Attorney General has the discretion to waive any ground of exclusion for an “S” nonimmigrant, except for those regarding Nazi persecution and genocide under INA § 212(a)(3)(E). The length of stay for an S-5 or S-6 nonimmigrant is limited to three years, and no extension of stay is permitted. However, adjustment to legal permanent residence (LPR) may be possible for the S visa holder and his or her family.

103

This information is taken from the Congressional Research Service, Order Code RS21043, Updated January 23, 2007 (as of this writing, this is the most recent update). 104 P.L. 103-322. 105 This legislation (S. 1424) became P.L. 107-45 on October 1, 2001.

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Appendix 8-A-1

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Appendix 8-B-1

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CHAPTER 9 RELEASE FROM DETENTION 1

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This chapter includes: § 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6

§ 9.7 § 9.8 § 9.9

Introduction ........................................................................................................ 9-1 Custody Determination....................................................................................... 9-2 Venue and Timing: Where and When to Request a Bond Hearing .................... 9-5 Mandatory Detention of Noncitizen Criminal Offenders during Removal Proceedings under INA § 236(c) ........................................................................ 9-6 Challenging Mandatory Detention and Prolonged Detention ............................ 9-8 Detention of Persons with Final Orders of Removal and No Stay of Removal from the Circuit Court of Appeals, Including Persons Granted Withholding or Deferral of Removal ............................................................... 9-13 Detention of Persons with Final Orders Who Have a Motion to Reopen Pending ............................................................................................................. 9-17 Detention of “Arriving Aliens” ........................................................................ 9-18 Detention of Persons with Credible Claims to U.S. Citizenship ...................... 9-19

§ 9.1

Introduction

Depending on the client’s immigration status and the stage of the removal proceedings, different provisions of the law govern whether the government may detain a noncitizen. INA § 236 governs immigration detention during removal proceedings, before there is final order of removal. During removal proceedings, noncitizens may be held in mandatory detention under INA § 236(c), 2 or in discretionary detention under INA § 236(a). 3 INA § 241 governs immigration detention once there is a final order of removal, during, and beyond, what is called the “removal period.” 4 In addition, other provisions and policies govern whether the government 1

Many thanks to Holly Cooper, Lecturer, University of California at Davis Law School, for reviewing previous drafts of this chapter and for sharing her insightful comments. 2 Exceptions to mandatory detention have been carved out by the courts in certain circumstances. See § 9.4. 3 See § 9.2. 4 See § 9.6.

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With aggressive advocacy, in some situations you may be able to secure your client’s release from immigration detention. Immigration detention can be more disadvantageous to a client and their legal case than criminal incarceration. Clients on the detained court docket will have expedited proceedings, which is important because they are detained, but more challenging to gathering evidence and arguments for a legal defense. This affects decisions about bail in a criminal case: if a client is likely to be detained under the immigration laws during removal proceedings, it may not be in his best interest to bond out of criminal incarceration, only to end up indefinitely detained in immigration custody.

may detain two specific categories of persons—“arriving aliens” and those with claims to U.S. citizenship. 5 § 9.2

Custody Determination

Upon initial custody by DHS, there are two points at which an individual can attempt to secure release. The first is the initial custody determination by ICE. The second is the custody determination by the immigration judge, if your client asks that a judge review ICE’s decision. The first happens as a matter of course whereas the second must be requested.

ICE

Immigration Judge

(First Custody Determination)

(Second Custody Determination)

Arrest A.

Detention Center

Custody Determination by ICE

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When ICE assumes custody of an individual, an ICE officer makes the initial custody determination to determine if that person should continue to be detained or released on a bond, parole, or under a supervised community custody program. 6 For those people eligible for release from detention, ICE may set an immigration bond of at least $1,500 following the person’s arrest and the initiation of removal proceedings. 7 As an alternative to a monetary bond, ICE also may release a person on “conditional parole.” 8 The amount of bond set by ICE can be found on the document titled “Notice of Custody Determination” (Form I-286). This amount can vary greatly depending on ICE’s determination of how likely it is that the person will appear at later hearings. Additionally, ICE may indicate that the person is either not eligible for bond and is held pursuant to mandatory detention, or, that they have chosen not to set a bond. In any case, your client may seek review of this determination in front of the immigration judge. PRACTICE TIP: An ICE agent can also exercise prosecutorial discretion. You can advocate to have your client released without the initiation of removal proceedings, if you believe there are strong positive factors or potential relief, such as a U visa or DACA. Supervised community custody programs are alternatives to both bond and detention, but include heavy monitoring and can be restrictive. In June of 2004, ICE announced a new pilot program providing a less restrictive alternative to detention, called “The Intensive Supervision Appearance Program” or ISAP. Under this program, immigrants subject to detention may be offered an alternative in which they are closely supervised and/or subjected to electronic monitoring (bracelets) by a company specializing in such alternatives called Behavioral Interventions, Inc. A 5

See §§ 9.8 and 9.9. 8 CFR § 236.1(d), § 1236.1(d). 7 INA § 236(a)(2)(A). 8 INA § 236(a)(2)(B). 6

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second alternative to detention program, called “Enhanced Supervision/Reporting” or “ESR” was first implemented by ICE in December 2007. Both ISAP and ESR are operated by outside contractors. A third program, simply titled “Electronic Monitoring” or “EM” is operated by ICE, and was also implemented in December 2007. This program operates in areas not covered by ISAP and ESR. Unfortunately, these programs can be highly restrictive, with heavy reporting requirements. Some individuals are expected to report weekly, with additional hours where they are required to be home, making it difficult to maintain a job or other daily activities. B.

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Custody Determination by an Immigration Judge

After ICE has made the initial custody determination, the detained immigrant may seek review of the decision in front of the immigration judge. This is called a bond redetermination hearing, but is most commonly referred to as a bond hearing. Thus, if ICE sets a bond but that bond is too high, the noncitizen may request a hearing before an immigration judge. 9 The IJ may also review any determination that your client is subject to mandatory detention. It is particularly important for advocates to individually assess a client’s bond eligibility since ICE may get this determination wrong. In particular, always be critical if ICE has determined that your client is subject to mandatory detention. The minimum bond amount is $1,500. Example: Manny is in custody, and his bond has been set by ICE at $10,000. His brother can come up with only $3,000 to get him released. Manny has a bond redetermination hearing. Through evidence, he persuades the judge that he is likely to come back for all future hearings, and the judge agrees to lower Manny’s bond to $3,000. Manny’s brother can now post the bond and Manny will go free. In a bond hearing, the burden is on the noncitizen to show to the satisfaction of the immigration judge that he or she merits release on bond. Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). Judges will also consider the following factors: Whether the person has a fixed address in the U.S.; the length of residence in the U.S.; family ties; employment history; record of appearance in court; criminal history (including recency and seriousness); history of immigration violations; attempts to flee prosecution; and manner of entry into the United States.

Matter of Guerra, 24 I&N Dec. at 40. A judge may also give weight to pending criminal charges even if there has been no conviction. Matter of Guerra, at 40–41. The noncitizen may also request that the judge release him or her on conditional parole, otherwise known as release on recognizance. Immigration judges have traditionally denied that they had authority to grant this type of release. However, a class action lawsuit, Rivera v. Holder, ruled 9

See 8 CFR §§ 3.19, 236.1, 1003.19 and 1236.1.

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1. 2. 3. 4. 5. 6. 7. 8. 9.

that the plain language of INA § 236(a) permits immigration judges to grant conditional parole. Thus, under the ruling, immigration judges in Washington State must now consider whether to grant conditional parole instead of imposing a monetary bond. 10 Rivera is only binding in Washington State. However, it should be instructive for people across the country. 11 However, the immigration judge also has the discretion to increase the bond, so depending on the client’s equities and the assigned immigration judge, the client may want to assess whether a bond redetermination hearing is prudent. A person requests a bond redetermination hearing by signing a form entitled “Notice of Custody Determination” (Form I-286) at the time of the initially custody determination. Post-Immigration Judge Bond Decision. Following the immigration judge’s bond decision, an additional request for bond will only be considered by the judge if “circumstances have changed materially since the prior bond determination.” 12 Such a request must be made in writing. Additionally, both the noncitizen and ICE can appeal the immigration judge’s custody determination to the Board of Immigration Appeals within 30 days. 13 To do so, reserve appeal at the end of the immigration bond hearing. While the appeal is pending, the case will continue as normal. C.

Automatic Stay Regulations

Typically, an immigration judge’s decision to release an immigrant is not stayed by an appeal by DHS. However, the DHS may seek an “emergency” discretionary stay upon appeal in any case in which the IJ authorizes release of the noncitizen, on bond or otherwise, but the DHS disagrees, or where bond is set higher than $10,000. 14 DHS can obtain a temporary automatic stay of release by filing a Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) within one business day of the issuance of the IJ’s order. 15

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Depending upon the circumstances, the stay of release may lapse, or continue to be in place after the initial Notice of Service Intent to Appeal Custody Redetermination (Form EOIR-43) is filed: •

The stay lapses if the DHS fails to file an appeal with the BIA within 10 days of the IJ’s decision. 16

•

If the DHS does file an appeal, the automatic stay provision will lapse after 90 days if the Board has not acted on the appeal. 17

•

However, DHS may file a motion for a discretionary stay of release if the Board does not issue a decision on the custody appeal within the period of the automatic stay under 8

10

See Rivera, 2015 WL 1632739, at *11-12 (2015). For a practice advisory on Rivera v. Holder and a copy of DHS’ brief conceding this issue, see Rivera v. Holder Practice Advisory available at, www.aclu.org/immigrants-rights/rivera-v-holder-practice-advisory. 12 8 CFR § 1003.19(e). 13 8 CFR § 236.1(d)(3)(i), § 1003.19(f); 8 CFR § 1003.38. 14 See 8 CFR § 1236.1(d)(4); 8 CFR § 1003.19(i)(1) and (2). 15 8 CFR § 1003.19(i)(2). 16 8 CFR § 1003.6(c)(1). 17 8 CFR § 1003.6(c)(1). 11

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CFR 1003.19(i)(1). DHS may submit a motion for discretionary stay at any time after the filing of its notice of appeal of the custody decision, and at a reasonable time before the expiration of the period of the automatic stay. •

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If the Board authorizes a noncitizen’s release (on bond or otherwise), or denies a motion for discretionary stay, or fails to act on such a motion before the automatic stay period expires, the noncitizen’s release will be automatically stayed for five business days. If, within that five-day period, the Secretary of Homeland Security or other designated official refers the custody case to the Attorney General pursuant to 8 CFR § 1003.1(h)(1), the noncitizen’s release will continue to be stayed pending the Attorney General’s consideration of the case. 18

The automatic stay provision has been used extensively as part of the DHS initiative “Operation Predator” to automatically detain any noncitizen convicted of an offense relating to any sexual activity (including indecent exposure and statutory rape). It is also now commonly used as part of the initiative “Operation Community Shield” to automatically detain any noncitizen believed to be or to have been a gang member or to have engaged in gang activity. The stay has also been used to deter immigration from countries where DHS believes there is a large influx of immigrants (e.g., Brazil). Many courts have criticized the automatic stay regulations. Although some district courts have upheld the regulations, 19 many courts have granted petitions for habeas corpus on grounds that the automatic stay provision is unconstitutional. 20 § 9.3

Venue and Timing: Where and When to Request a Bond Hearing

Once the client has decided to request a bond or bond redetermination hearing, the next question is where to file such a request. Venue generally lies with the court having jurisdiction over the place of detention or with the court having administrative control over the case. 8 CFR 1003.19(c). PRACTICE TIP: Clients are sometimes transferred to different jurisdictions due to limited detention bed space. If you are concerned about your client being transferred out of your jurisdiction, use 8 CFR 1003.19(c) as the basis for requesting a bond hearing in the venue where your client is detained. This may turn into a race to the courthouse if your client is

8 CFR § 1003.6(d). See Hussain v. Gonzales, 492 F.Supp. 2d 1024 (E.D. Wis. 2007), Pisciotta v. Ashcroft, 311 F. Supp. 2d 445 (D.N.J. 2004); Marin v. Ashcroft, No. 04-CV-675 (JAP), 2004 WL 3712722 (D.N.J. 2004) (unpublished); Alameh v. Ashcroft, No. Civ.A. 03-6205, 2004 WL 3712718 (D.N.J. 2004) (unpublished); Ali v. Achim, 342 F. Supp. 2d 769 (N.D. Ill. 2004); Perez-Cortez v. Maurer, No. Civ.A.03-N-2244(MJW), 2003 WL 24277775 (D. Colo. 2003) (unpublished). 20 Zabadi v. Chertoff, No. C 05-01796 WHA, 2005 WL 1514122 (N.D. Cal. 2005) (unpublished); Zavala v. Ridge, 310 F. Supp. 2d 1071 (N.D. Cal. 2004); Uritsky v. Ridge, 286 F. Supp. 2d 842 (E.D. Mich. 2003); Ashley v. Ridge, 288 F. Supp. 2d 662 (D.N.J. 2003); Bezmen v. Ashcroft, 245 F. Supp. 2d 446 (D. Conn. 2003); Altagracia Almonte-Vargas v. Elwood, No. CIV.A. 02-CV-2666, 2002 WL 1471555 (E.D. Pa. 2002). 19

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detained in your jurisdiction but hasn’t yet been transferred! Pursuant to INA § 240, an individual in removal proceedings may request a bond hearing at any time after the person is in ICE custody. You can ask for a bond hearing before an NTA is filed with the court or your client has his or her first hearing. 21 Exception: The immigration judge has no jurisdiction over a bond hearing for individuals who have not been issued and served an NTA in relation to removal proceedings pursuant to 8 CFR 1240. 22 There is also no jurisdiction over Visa Waiver Program individuals in asylum-only proceedings. The bond hearing may be requested orally or in writing. 23 § 9.4

Mandatory Detention of Noncitizen Criminal Offenders during Removal Proceedings under INA § 236(c)

The 1996 IIRIRA, which went into effect on April 1, 1997, greatly expanded the number of inadmissible and deportable noncitizens who are subject to mandatory detention during removal proceedings, before a final order of removal has issued. By amending INA § 236(c)(1), IIRIRA provides that the Attorney General shall mandatorily detain, except in very limited circumstances, noncitizens who are charged with being inadmissible or deportable under certain grounds related to crimes. Persons who were released from criminal incarceration before October 9, 1998 are not subject to mandatory detention under INA § 236(c), but are subject to discretionary detention under INA § 236(a). See § 9.2. Who Is Subject to Mandatory Detention?

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The harsh “permanent” rules for mandatory detention went into effect on October 9, 1998. Under the permanent rules now in effect, the following groups of people are not entitled to a bond and must remain in detention while removal proceedings are pending against them. 24 However, for a person to be subject to mandatory detention, advocates should argue that all four of the following criteria must be met: First, the person must come within certain crimes grounds of deportability or inadmissibility. See INA § 236(c)(1)(A)–(D) A. Persons who are inadmissible for having committed an offense described in INA § 212(a)(2) [crimes of moral turpitude and drug offenses]; i.

Petty Offense Exception: If the individual has one crime of moral turpitude (CIMT), they may qualify for the “petty offense exception” and therefore not be

21

8 CFR 1003.14(a). Matter of A-W-, 25 I&N Dec. 45 (BIA 2009). 23 8 CFR 1003.19(b). 24 This section discusses mandatory detention for people who were within the United States when placed in removal proceedings. There are other rules governing detention of arriving aliens and people subject to expedited removal. See INA §§ 208.5 and 235(b)(1)(B)(iii)(IV); § 9.8. 22

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subject to mandatory detention. To qualify, 1) the individual must have only one CIMT, 2) the individual must not have been sentenced to a term of imprisonment in excess of six months, and 3) the offense of conviction carried a maximum possible sentence of one year or less. 25

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B. Persons who are deportable for having committed any offense in INA § 237 (a)(2)(A)(ii) [multiple criminal convictions], 237(a)(2)(A)(iii) [aggravated felony], 237(a)(2)(B)[drug offense] 237(a)(2)(C)[firearms offenses], or 237(a)(2)(D) [crimes related to espionage]; i.

Drug Offense Exception: Watch out for a possession of marijuana that is less than 30 grams or less. Your client will not be subject to mandatory detention based on this ground and might not be deportable or may be eligible for a waiver.

C. Persons who are deportable under INA § 237(a)(2)(A)(i) [has been convicted of a crime of moral turpitude that was committed within five years of admission] and has been sentenced to a term of imprisonment of at least one year; and D. Persons who are inadmissible under INA § 212(a)(3)(B) or deportable under INA § 237(a)(4)(B) [involved in terrorist activities]. Second, ICE arguably must take the person into custody when the person is released from criminal custody. INA § 236(c) states that “the Attorney General shall take into custody any alien who” comes within these grounds “when the alien is released.” The application of the “when released” language has been a point of dispute. The Government has argued that in order to subject someone to mandatory detention, ICE does not have to take the person into custody immediately upon release from criminal custody. Rather, ICE argues that mandatory detention applies even if it picks the person up days, months, or years after release. The BIA agreed with this reasoning in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). However, a growing number of courts 26 have held that “when released” requires ICE to detain the person immediately at the time of their release from criminal custody. Thus, the release must be from actual 27 criminal custody, and ICE cannot subject someone to mandatory detention when they pick him or her up in the community after their criminal release. Notably, the Ninth Circuit in Preap v. Holder 28 and First Circuit in Castaneda v. Souza 29 have taken this position.

25

See INA § 212(a)(2)(A) (II), 8 USC § 1182(a)(2)(A) (II). See, e.g., Nimako v. Shanahan, 2012 WL 4121102 (D.N.J. 2012); Khoury v. Asher, 2014 WL 954920 (W.D. Wash. 2014); but see, e.g., Sylvain v. Attorney Gen. of U.S., 714 F.3d 150 (3rd Cir. 2013); Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012); Olmos v. Holder, 780 F.3d 1313 (10th Cir. 2015). 27 For mandatory detention to apply, the release must be from actual, physical custody of the state. Matter of West, 22 I&N Dec. 1405 (BIA 2000) (where person was sentence to probation, he was not subject to mandatory detention because he was not released from the physical custody of the state). 28 Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016); see also Khoury v. Asher, 2016 WL 4137642 (9th Cir. Aug. 4, 2016). 29 Castaneda v. Souza, 810 F.3d 15 (1st Cir. 2015) (en banc). 26

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Advocates should research the relevant law in their jurisdiction and argue that “when released” requires apprehension immediately upon release from criminal custody.

Third, mandatory detention should not apply to persons sentenced only to probation on or after October 8, 1998, because “release” within that statute means release from physical confinement. 30 But see the BIA’s decision Matter of Kotliar, holding that release from physical custody following criminal arrest, regardless of whether the individual is sentenced to incarceration, qualifies as “release” under INA § 236(c). 31 Fourth, because the mandatory detention law went into effect October 9, 1998, the release must be from criminal custody after October 9, 1998. Fifth, the person must be in custody for an offense that triggers mandatory detention, at the time of release. 32 In Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2001), the Ninth Circuit found these mandatory detention provisions to be unconstitutional as applied to lawful permanent residents. The court held that a permanent resident in removal proceedings is entitled to an individualized bond hearing and cannot be automatically detained without bond under INA § 236(c). Much to the disappointment of immigration advocates, the U.S. Supreme Court, reversed this decision in a case called Demore v. Kim, 123 S.Ct. 1708 (2003), in which it upheld the mandatory detention provisions of INA § 236(c), even for lawful permanent residents. The Supreme Court said that these harsh provisions do not violate the Constitution. Nonetheless, there are many challenges to the mandatory prevention provisions. The ACLU and the Legal Action Center of the American Immigration Council provide resources for challenging mandatory detention. 33 § 9.5

Challenging Mandatory Detention and Prolonged Detention

ICE officers have the authority to exercise prosecutorial discretion to decide against removal proceedings, so that noncitizens are not subject to mandatory detention and/or removal. It may exercise prosecutorial discretion at any stage, before or during proceedings, even when a case is pending before the federal courts. While arguing for discretion will be increasingly difficult in the current Administration, advocates may consider exploring the option for clients who are suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, or who demonstrate that they are primary caretakers of children or an infirm person.

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A.

Joseph Hearings: Challenging Your Client’s Removability under the Ground(s) Triggering Mandatory Detention

Even if a person was released from criminal detention after October 8, 1998 and is being charged with removability for an offense listed in INA § 236(c), that does not automatically mean that the person is subject to mandatory detention, and practitioners should not concede that mandatory detention is appropriate. Such individuals may be able to argue that they have not been properly 30

See Tenrreiro v. Ashcroft, No. CV 04-768-PA, 2004 WL 1354277 (D.Or.2004) (unreported), order vacated on reconsideration on other grounds, NO. CV 04-768-PA, 2004 WL 1588217 (D.Or. 2004) (holding that for a petitioner who was never confined, probation should not be considered to be custody for purposes of mandatory detention). 31 24 I&N Dec. 124 (BIA 2007); see also Matter of West, 22 I&N Dec. 1405 (BIA 2000). 32 Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010). 33 See www.legalactioncenter.org and www.aclu.org.

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included within a mandatory detention category at a Joseph hearing. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Matter of Joseph held that a permanent resident is not properly included within a mandatory detention category if ICE is “substantially unlikely” to establish at the merits hearing that the charges that would subject the person to mandatory detention will be sustained. While counsel should try to meet that standard, counsel also should assert that the proper standard is simply the “likelihood of success on the merits of [the removability] charge.” Matter of Joseph, at 809. Therefore, arguments that one would raise to challenge the ground of removability alleged in the NTA should also be used to establish that your client is not properly included within the mandatory detention category. For example, the offense is not a crime involving moral turpitude or your client has a strong derivative citizenship claim.

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A Joseph hearing should be scheduled immediately after requested, or else it may be a violation of the person’s rights. 34 If the person prevails at the Joseph hearing, he or she is entitled to a bond hearing. 35 The results of the Joseph hearing, however, may be challenged in federal court. In Tijani v. Willis, the Ninth Circuit questioned the holding in Matter of Joseph, finding that imposing the burden of proving that ICE is “substantially unlikely” to establish the charges on the permanent resident is contrary to the Constitution. 36 When the fundamental right of liberty is at stake, the Ninth Circuit explained, the Supreme Court has consistently rejected laws that place the burden of protecting his or her fundamental right on the individual. 37 The Tijani court also criticized Matter of Joseph because it placed little weight on the deprivation of individual liberty through lengthy detentions. 38 Practitioners should therefore argue that when ICE alleges that a person is subject to mandatory detention under INA § 236(c), ICE should also bear the burden of proving that it would be substantially likely to prevail in sustaining the charges before a permanent resident client can be 34

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According to “Case Completion Goals” of the April 26, 2002 memo from the Office of the Chief Immigration Judge, all custody hearings should be completed within three days. See Memo, OCIJ, Case Completion Goals (April 26, 2002) www.aila.org/content/default.aspx?bc=8735|17026|9002. Therefore, if a hearing is requested but not scheduled soon thereafter, it can be argued that the detention violates due process. By failing to provide a prompt hearing, the government is also arguably violating the procedural protection that the Supreme Court used to justify the application of § 236(c) to lawful permanent residents in Demore v. Kim. See Kim, 538 U.S. at 531-32 (Kennedy, J., concurring). 35 Joseph, 22 I&N at 806. 36 Tijani v. Willis, 430 F.3d 1241 (9th Cir. 2005) (In concurrence, Judge Tashima stated that the Joseph standard is “egregiously” unconstitutional because the standard not only places the burden on the defendant to prove that he should not be physically detained, it makes that burden all but insurmountable. The concurrence goes on to state that the court should interpret § 236(c) to apply mandatory detention in a more narrow fashion, namely, only those immigrants who could not raise a “substantial” argument against their removability should be subject to § 236(c)). 37 Tijani, 430 F.3d at 1244-45 (Citing Addington v. Texas, 441 U.S. 418 (1979)); Cooper v. Oklahoma 517 U.S. 348, 363 (1996); and Foucha v. Louisiana, 504 U.S. 71, 112(1992); see also discussion in Singh v. Holder, 638 F.3d 1196, 2013-04 (9th Cir. 2011) (holding that the government must meet a heightened standard of proof—clear and convincing evidence—in bond hearing given the significant liberty interest at stake when detention is prolonged). 38 Id. at 1249.

denied the right to bond. Practitioners in the Ninth Circuit should cite to Tijani v. Willis, while practitioners in other jurisdictions should cite both to Tijani v. Willis and to the Supreme Court cases cited therein. B.

Casas-Castrillon Hearing

At a certain point in the appeal process, a noncitizen is no longer subject to the mandatory detention provision, but rather is subject to the discretionary bond provision under INA § 236(a) and is entitled to a bond hearing. 39 The court found that detention pursuant to § 236(c) is authorized through the administrative appeal of the removal order to the BIA; however, upon judicial review in the court of appeals, authority for detention shifts to § 236(a) (discretionary detention). This meant that the petitioner was entitled to a discretionary bond hearing. The court said, Because the prolonged detention of an alien without an individualized determination of his dangerousness or flight risk would be ‘constitutionally doubtful,’ we hold that 8 USC § 1226(a) (INA § 236(a)) must be construed as requiring the Attorney General to provide the alien with such a hearing. 40 In addition to requiring a bond hearing for prolonged detention, Casas-Castrillon seems to imply that the burden is shifted to the government to prove that the person should not be released because he is a flight risk or a danger to the community. 41 Practitioners report, however, that the burden is being placed on the noncitizen to show that he or she is not a flight risk or a danger. 42 C.

Rodriguez and Lora Hearings

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In Rodriguez v. Robbins, 43 the Ninth Circuit stated that all noncitizens, even those subject to mandatory detention, are allowed to request bond hearings after they have been detained for six months or more pending removal proceedings. Additionally, the government bears the burden of justifying continued imprisonment by clear and convincing evidence. The hearing must be accompanied by several other procedural safeguards as well. A similar decision, Lora v. Shanahan, 44 exists in the Second Circuit. To learn more about Rodriguez bond hearings in the Ninth Circuit, see Bond Hearings for Immigrants Subject to Prolonged Immigration Detention in the Ninth Circuit, Practice Advisory, ACLU (Dec. 2015). To learn more about Lora bond hearings in the Second Circuit, see Understanding Lora v. Shanahan and the Implementation of Bond Hearings for Immigrants in Prolonged Detention, Practice Advisory, NYU Law Immigrant Rights Clinic (Nov. 2015).

39

Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). Casas-Castrillon v. DHS, 535 F.3d at 950. 41 535 F.3d at 950. 42 Practice advisories on Casas-Castrillon are posted at www.immigrationadvocates.org in the Immigration and Crimes Resource Library, Detention subfolder (membership is required). 43 Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015). 44 Lora v. Shanahan, 804 F.3d 601 (2nd Cir. 2015). 40

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While these decisions have been a great success in the challenge against mandatory detention, advocates have raised concerns over the way that EOIR is processing these cases. For example, individuals released under Rodriguez v. Robbins have had their master calendar cases scheduled between 10 and 28 days after release from detention, increasing the potential for individuals to accidentally miss their hearings and receive orders of removal in absentia. For a practice guide meant to assist, especially pro se respondents in this situation, see www.aclu.org/feature/immigration-detention-resources.

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As of the date of this publishing, Rodriguez is under review at the U.S. Supreme Court. D.

Other Case Law Challenging Prolonged Detention

While not adopting the more bright line rules in Rodriguez and Lora, there are other appellate cases which provide respondents the ability to challenge prolonged detention. In Sopo v. U.S. Attorney General, 45 the Eleventh Circuit found that INA § 236(c) “‘authorizes detention for [only] a reasonable amount of time.” 46 The Court did not adopt a presumptive period of time at which detention becomes unreasonably prolonged. Instead, it laid out a series of factors to define the “triggering point” for a bond hearing. For example, the length of detention, the causes of case delay, and other factors (“likely duration of future detention”; “likelihood that [removal] proceedings will culminate in a final removal order”; foreseeability of the person’s removal if ordered removed; length of the person’s criminal sentence as compared to the length of his immigration detention; and conditions of immigration detention). Unlike Rodriguez and Lora, the burden of proof is on the respondent to prove that he or she is not a danger or flight risk. 47 In the Third Circuit, respondents have Diop v. ICE/Homeland Security, 656 F.3d 221 (3rd Cir. 2011); Leslie v. Attorney General of the United States, 678 F.3d 265 (3rd Cir. 2012); and ChavezAlvarez v. Warden York County Prison, No. 14-1402, 2015 WL 1567019 (3rd Cir. 2015). 48 Diop held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time.” Leslie clarified that Diop extends not just to individuals before the immigration judge and Board of Immigration Appeals, but also to individuals who have obtained a stay of removal pending judicial review of their removal orders. 49 Chavez-Alvarez further refined to point at which the bond hearing is triggered, discussing the existence of a good faith challenge to removal, the length of detention, and the prospect of future proceedings. 50 Finally, once a hearing is granted, the government bears the burden of proof. Distinguishing Your Client from Kim

Clients whose situations are distinguishable from the facts in Demore v. Kim should not be subject to mandatory detention. For instance, individuals with petitions for review pending and a

45

Sopo v. U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016). Id. at 1214. 47 For a practice advisory on Sopo, see ACLU, Practice Advisory: Prolonged Mandatory Detention and Bond Eligibility in the Eleventh Circuit (June 2016). 48 For a practice advisory on Diop, Leslie, and Chavez-Alvarez, see ACLU, Practice Advisory: Prolonged Mandatory Detention and Bond Eligibility in the Third Circuit (May 2015). 49 Leslie, 678 F.3d at 270. 50 Chavez-Alvarez, 2015 WL 1567019, at *7. 46

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E.

stay of removal from the Circuit Court of Appeals should no longer be subject to mandatory detention. 51 Counsel can also argue the following in a habeas petition: 52 •

Individuals detained for longer periods may argue that the detention is unconstitutional. It is notable that in Kim mandatory detention was upheld under the presumption (asserted in Zadvydas v. Davis) that the average detention lasts less than 90 days. 53 In reality, detention lasts much longer. A surge of new cases from the federal district courts and circuit courts of appeal have addressed whether § 236(c) is limited to “reasonable” periods of detention. 54 In instances when mandatory detention became excessive, the federal courts have granted habeas relief. 55

•

Individuals who can show that after the close of proceedings they fall under the rule in Zadvydas v. Davis 56 because the government will be unable to remove them, should argue that INA § 236(c) is unconstitutional as applied to them. 57 They may argue that mandatory detention has no purpose because it is unlikely that they will be removed from the United States.

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See § 9.7, below. See discussion of these arguments at AILF Practice Advisory, Mandatory Detention After Demore v. Kim, above. See also Jeff Joseph et al., Getting Out: Strategies for Challenging Unlawful Detention in Federal Court, in Immigration & Nationality Law Handbook, 181 (Stephanie L. Browning ed. AILA 200809). 53 See Kim, 538 U.S. at 529. In reaching its conclusion, the majority opinion relied in part on the fact that 85% of those subject to mandatory detention have their removal proceeding completed on an average of 47 days, and the remaining 15% who appeal the IJ decision, the appeal takes an average of 4 months. 54 Despite the distinction between pre-removal and post-removal custody, advocates can argue that prolonged, indefinite detention is barred under both pre-removal and post-removal detention; see also Diouf v. Napolitano, 634 F.3d 1081, 1092 n.13 (9th Cir. 2011) (stating that as a general matter detention becomes prolonged when it last 6 months or more). 55 See, e.g., Tijani v. Willis, 430 F.3d 1241, 1242 (9thCir. 2005)(finding it was “doubtful” that thirty-two months of detention was legal under the U.S. Constitution where the person contested his removability and thereby limited the scope of § 236(c) to only apply to the expeditious removal of criminal aliens); Ly v. Hansen, 351 F.3d 263, 268 (6th Cir. 2003)(removal proceedings were pending for 18 months while the person was detained and the court construed § 236(c) to include an implicit requirement that removal proceedings be concluded in a reasonable time, stating “If the process takes an unreasonably long time, the detainee may seek relief in habeas proceedings”); Scarlett v. DHS, 632 F.Supp.2d 214, 223 (W.D.N.Y. 2009) (concluding that 5 years detention under § 236(c) far exceeded the “brief” detention authorized in Kim); Judulang v. Chertoff, 535 F.Supp 2d 1129, 1134 (S.D. Cal. 2008) (finding that detention for two and half years is not reasonable and not authorized under § 236(c)); Tkochenko v. Sabol, No. 1:11-CV-449, 2011 WL 1481376, *7 (M.D. Pa. 2011) (unpublished) (finding that detention under § 236(c) that lasted 2 years raised profound constitution issues justifying habeas relief especially in light of the fact that the government’s litigation strategy prolonged removal proceedings); Fuller v. Gonzales, No. Civ.A.3:04CV2039SRU, 2005 U.S. Dist. LEXIS 5828 (D. Conn. 2005) (stating that the government can limit a noncitizen’s freedom only if the person is held for a reasonable amount of time). 56 See § 9.6, below. 57 See Zadvydas v. Davis, 533 U.S. 678, 701 (2001).

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Mr. Kim did not contest deportability or request a Joseph hearing, and the Court seemed to give this considerable weight in coming to its decision. 58 In light of this, it is arguable that until deportability is established, an individual should not be detained. Therefore, a noncitizen planning to deny deportability should clearly state his or her contention at immigration proceedings and in any habeas proceedings. 59

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Individuals applying for forms of relief that would nullify a finding of removability may argue that they are not “inadmissible” or “deportable” under INA § 236(c). Mr. Kim was applying only for withholding of removal, a form of relief that does not actually cancel a person’s removability. 60

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§ 9.6 Detention of Persons with Final Orders of Removal and No Stay of Removal from the Circuit Court of Appeals, Including Persons Granted Withholding or Deferral of Removal As noted above, for noncitizens who have filed appeals in the courts of appeal, but who have not been granted a stay of removal, the removal period begins on the date of the final administrative order (i.e., the date of the BIA decision), and their detention is therefore governed by INA§ 241(a). 61 Many persons in this situation find themselves in detention for prolonged periods of time. For some with final orders, detention lasts for months while they are waiting to be removed. Various reasons may exist for the delay. For example, many countries have no diplomatic relations with the United States and do not repatriate deportees (e.g., Laos); 62 some countries have ceased to exist as nations; some persons are stateless (Palestinians, native Germans with no blood lineage); and some countries are notoriously slow to issue travel documents (Cambodia, India, Jamaica, Afghanistan, etc.) Depending upon whether removal is reasonably foreseeable, the person may be able to obtain release from custody despite having been actually ordered removed from the United States. During the 90-day removal period, ICE will typically allow a person to request release in what has come to be known as the “Ninety Day Review.” If the request for supervised release is denied, the person may in certain circumstances challenge that decision in federal court.

Kim, 538 U.S. at 513-14, 522 n. 6, 531. Tijani, 430 F.3d at 1242 (weighing as an important factor that petitioner had contested his removability). 60 Under the withholding of removal provision, INA § 241(b)(3), the government is prevented only from removing a person to a country in which his or her life would be threatened on account of one of the enumerated grounds; the statute does not preclude removal to another country. 61 See INA § 241(a)(B)(ii).Note also that for those who never filed an appeal to the BIA, the removal period begins on the day of the immigration court order, and for those who failed to appeal from an adverse BIA decision, the removal period begins on the date of the BIA order. 62 Vietnam used to be one of these countries. However, on Jan. 20, 2008, ICE Assistant Secretary Julie L. Myers recently signed a historical Memorandum of Understanding (“MOU”) with Vietnam. The MOU allows for the repatriation (or deportation) of Vietnam Citizens who entered the United States on or after July 12, 1995 and have a final order of deportation. See South Asian Resource Action Center, Frequently Asked Questions About the U.S. and Vietnam Repatriation Agreement, available at www.detentionwatchnetwork.org/usvietnamrepatriationfaq. 59

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Once a final administrative order exists, the immigration judge is generally divested of jurisdiction to grant a bond, with some exceptions. 63 The appropriate forum to challenge custody after a final order is the federal district court through a petition for writ of habeas corpus. Immigration authorities are required to detain noncitizens subject to a final order of removal during a 90-day “removal period.” 64 This period begins on the date the removal order becomes administratively final, or if appealed to federal court, on the date the court issues the final order. 65 If the person is incarcerated, the removal period could also begin on the date he or she is released from incarceration. 66 Common DHS practice in non-detained cases is to begin counting the 90day period only after the person has been taken into custody for execution of the removal order. 67 Any bond that has been posted will be canceled unless it has been breached. 68 During the removal period, the DHS may not release any noncitizen with a final order who has been found inadmissible under INA §§ 212(a)(2) [criminal and related grounds] or 212(a)(3)(B) [terrorist activities]. 69 Similarly, the DHS may not release anyone with a final order who has been found deportable under INA §§ 237(a)(2) [criminal offenses] or 237(a)(4)(B) [terrorist activities]. If the person is not removed from the United States within the 90-day removal period, the statute provides for release, subject to an order of supervision. 70 However, people who are inadmissible and those who have committed certain criminal offenses must meet a higher burden before they are released. 71 These include those who are inadmissible under INA § 212(a) or deportable under the following grounds: INA §§ 237(a)(1)(C) [violated nonimmigrant status or condition of entry]; 237(a)(2) [criminal offenses]; or 237(a)(4) [security and related grounds]. The statute provides that these persons may be detained beyond the 90-day removal period if they present a “significant risk of noncompliance with the order of removal.” 72 They may be held until they demonstrate by clear and convincing evidence that their release would not pose a danger to the community or a significant flight risk. 73 A.

Restrictions Imposed on Indefinite Detention: Zadvydas v. Davis

As noted above, in Zadvydas v. Davis, the Supreme Court found an implicit restriction in the statute’s post-removal period detention provision, defining it as “the period reasonably necessary to bring about [the individual detainee’s] removal.” 74 Since the statute designates 90 days for this

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See, e.g., § 9.7. INA § 241(a)(2); 8 CFR § 241.3(a). The removal period is defined in INA § 241(a)(1). 65 INA § 241(a)(1)(B)(i), (ii). 66 INA § 241(a)(1)(B)(iii). 67 Jeff Joseph et al., Getting Out: Strategies for Challenging Unlawful Detention in Federal Court, in Immigration & Nationality Law Handbook at 187. 68 8 CFR § 241.3(b). For directions regarding how to obtain a bond refund, see Catholic Legal Immigration Network, Inc. Immigration Bond: How to Get Your Money Back, at www.cliniclegal.org/resources/immigration-bond-how-get-your-money-back. 69 INA § 241(a)(2). 70 INA § 241(a)(3). The statute provides that these aliens “shall be subject to supervision under regulations prescribed by the Attorney General.” 71 INA § 241(a)(6). 72 INA § 241(a)(6). 73 INA § 241(a)(6). 74 533 U.S. 678, 689 (2001). 64

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removal period, a detainee’s claim of indefinite detention does not ripen until at least after the initial 90 days. The Court, however, did not cut off this “removal period” at the statutory 90 days, but provided a six-month period for the government to effect removal. 75 In other words, the 90-day post removal period of detention under INA § 241(a)(6) may be extended by a second 90-day period and still comply with Zadvydas. After that, the Court held that persons who are detained under INA § 241(a)(6) but can show that there is “no significant likelihood of removal in the reasonably foreseeable future” must be released. It noted that “for detention to remain reasonable, as the period of prior post-relief confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” This holding has also been extended to inadmissible immigrants in Clark v. Martinez, 543 U.S. 371 (2005). Thus, noncitizens who may not be removable in the “reasonably foreseeable future” because, for example, the U.S. lacks a repatriation agreement or the consulate refuses to issue travel documents, should be granted supervised release. B.

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Regulations Implementing Zadvydas

In 2001, the Service published a regulation to implement the Supreme Court’s decision in Zadvydas. 76 The regulation lays out the procedure under which a detained noncitizen can request and the government can determine eligibility for release pursuant to Zadvydas. Specifically, a detainee requesting release pursuant to Zadvydas must show that there is no significant likelihood that he or she will be removed in the reasonably foreseeable future. The detainee may submit a written request for release any time after the removal order becomes final.77 If the detainee files the request during the 90-day removal period, the Headquarters Post-order Detention Unit (HQPDU) may postpone its decision until after the 90 days has passed. 78 It should, and arguably is required to, make the determination within six months from the date of the commencement of the removal period. 79 The HQPDU then looks at whether the detainee has made “reasonable efforts” to comply with the removal order. 80 It may consult with the Department of State as to whether country conditions permit removal. 81 If the request for release is denied, the person continues to be held, without the availability of administrative appeal.82 However, detainees may file a habeas petition in a federal district court to challenge the agency’s decision to deny supervised release.

Zadvydas, 533 U.S. at 701. 8 CFR § 241.13 and amendments to 8 CFR § 241.4 were published at 66 Fed. Reg. 56967-82 (Nov. 14, 2001). See discussion in 78 Interpreter Releases 1777 (2001). Since the creation of DHS, EOIR Regulations parallel, but are separate from, DHS regulations. The parallel to 8 CFR § 241.13 is found at 8 CFR § 1241.13. 77 8 CFR § 241.13(d)(3). 78 8 CFR § 241.13(d)(3). 79 See 8 CFR § 214.13(b)(2)(ii). See also Zadvydas, 533 U.S. at 701 (“as the period of prior post-relief confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink”). 80 8 CFR §§ 241.13(f) & 1241.13(f). 81 8 CFR §§ 241.13(f) & 1241.13(f). 82 8 CFR §§ 241.13(g)(2) & 1241.13(g)(2). 76

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The government has taken a conservative approach to Zadvydas and is attempting to create a categorical exception to the Supreme Court’s limits to indefinite detention. Specifically, 8 CFR §§ 241.14 (and corresponding EOIR regulations at 1241.14) provide that the government may continue to detain a person who meets any of the following criteria: 1. The person has a highly contagious disease that is a threat to public safety; 2. The person is detained on account of serious adverse foreign policy consequences of release; 3. The person is detained on account of security or terrorism concerns, or 4. The person is determined to be “specially dangerous.” “Specially dangerous” is defined as those who have committed one or more crimes of violence described in 18 USC § 16, persons for whom no conditions of release can reasonably be expected to ensure the safety of the public, and persons with mental disorders that makes them likely to engage in future acts of violence. 83 Noncitizens continually detained pursuant to these regulations, except for the “specially dangerous” category, are subject to a semi-annual review but are not permitted further administrative review. However, “specially dangerous” immigrants may file form I-863 with the government (Referral to immigration judge) to review their continued detention. Within 10 business days, the immigration court will hold a reasonable cause hearing to determine whether to hold a full merits hearing on whether the Service is justified in detaining the “specially dangerous” immigrant. Either party may appeal the IJ’s decision. 84 In a merits hearing, the government would bear the burden to show by clear and convincing evidence that the person is specially dangerous and should not be released. 85

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Detention of “specially dangerous” immigrants under 8 CFR §§ 241.14 has been successfully challenged. In Thai v. Ashcroft, the Ninth Circuit held that the Supreme Court’s construction of INA § 241(a)(6) did not authorize the continued and potentially indefinite detention of a person based on a determination that the noncitizen’s mental illness made him specially dangerous to the community. 86 The court also held that the danger of criminal conduct by a noncitizen was not automatically a matter of national security as that term was used in Zadvydas. 87 Immigration counsel who encounter problems with DHS’ implementation of the Zadvydas rule should contact a litigation center. The Immigrant Rights Project of the ACLU provides information about habeas actions both before and after final orders of removal and is monitoring Zadvydas compliance. The Florence Immigrant & Refugee Rights Project (www.firrp.org) as well as the ACLU have also developed pro se writ of habeas corpus materials to assist detainees. In addition, many federal public defender offices in high immigrant populated states have units that work on indefinite immigration detention habeas cases.

83

See 8 CFR §§ 241.14(f) & 1241.14(f). See 8 CFR §§ 241.14(g)–(i) & 1241.14 (g)–(i). 85 8 CFR §§ 241.14(i)(1) & 1241.14(i)(1). 86 366 F.3d 790 (9th Cir. 2004). Accord Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008). But see Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1248 (10th Cir. 2008). 87 See Zadvydas, at 796-97. 84

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C.

Zadvydas and Withholding or Deferral of Removal

Even before the Zadvydas decision, the government liberalized its official policy toward detained persons granted withholding or deferral of removal who ordinarily would be subject to mandatory and indefinite detention (although not pursuant to a final order of removal and therefore not directly governed by the Zadvydas case). A memo from General Counsel Bo Cooper, dated April 21, 2000, stated that if the government is not “actively pursuing” a noncitizen’s removal, the noncitizen is not subject to mandatory detention and could be released from detention.

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Noncitizens who have been granted withholding or deferral of removal to a specific country come within this category, unless the government is actively pursuing their removal to some third country. The government’s decision whether to release such a person must take into consideration “all appropriate factors, including whether the alien poses a threat to the community or flight risk.” 88 Many ICE offices, however, still detain persons for the 90-day removal period even though they have been granted withholding or deferral of removal and therefore cannot be removed to their countries of origin or citizenship. § 9.7

Detention of Persons with Final Orders Who Have a Motion to Reopen Pending

After the expiration of the 90-day removal period, the INA permits continued detention for noncitizens who are inadmissible under INA § 212(a) or deportable under the following grounds: INA §§ 237(a)(1)(C) [violated nonimmigrant status or condition of entry]; 237(a)(2) [criminal offenses]; or 237(a)(4) [security and related grounds]. 89 The statute provides that these inadmissible or deportable immigrants may be detained beyond the 90-day removal period if they present a “significant risk of noncompliance with the order of removal.” Under the regulations, DHS must conduct periodic custody reviews. The first is before the expiration of the 90-day removal period and another is required 180 days after the commencement of the removal period. 90 Noncitizens may be detained until they demonstrate by clear and convincing evidence that their release would not pose a danger to the community or a significant flight risk. 91

In Diouf v. Napolitano, the Ninth Circuit held that a person detained under INA § 241(a)(6) whose detention has lasted six months is entitled to a bond hearing before an immigration judge 88

The memo is reproduced in 77 No. 39 Interpreter Releases 1445 (October 9, 2000), and available from AILA InfoNet. 89 INA § 241(a)(6). 90 8 CFR § 241.4. 91 INA § 241(a)(6).

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Although a final order of removal may be in effect, a person may not be removable because they continue to challenge the removal order, through a motion to reopen with the BIA, and have obtained a stay of removal pertaining to the motion to reopen. Such persons who collaterally challenge the removal order face being detained beyond the removal period INA § 241(a)(6) until the resolution of their case and appeals. Note that individuals with a final removal order who are not removable in the foreseeable future because, for example, the U.S. lacks a repatriation agreement or the consulate fails to issue travel documents are controlled by the Court’s decision in Zadvydas. See § 9.6.

to challenge the continued detention if release or removal is not imminent. 92 Concerning the timing of the bond hearing, the court stated that “DHS should be encouraged to afford an alien a hearing before an immigration judge before the 180-day threshold has been reached if it is practical to do so and it has already become clear that the alien is facing prolonged detention. When, for example, this court grants a stay of removal in connection with an alien’s petition for review from a denial of a motion to reopen, the alien’s prolonged detention becomes a near certainty.” 93 Further, whereas the noncitizen bears the burden to show that release is warranted in the DHS custody review procedures, the government bears the burden of proof in the bond hearing before the IJ. 94 The government must prove that the individual is a flight risk or a danger to the community. The procedural safeguards established in Singh v. Holder should also apply in bond hearing afforded pursuant to Diouf; 95 that is, that the burden should be placed on the government to prove by clear and convincing evidence that continued detention is justified and that an audio recording be made available to the noncitizens should she or he decide to appeal the IJ’s bond decision. § 9.8

Detention of “Arriving Aliens”

Most arriving aliens are subject to expedited removal. 96 However, the detention of arriving aliens who are not subject to expedited removal 97 is governed by INA § 235(b)(2)(A), which provides that if the immigration officer determines that an immigrant seeking admission is not clearly and beyond a doubt entitled to be admitted, the immigrant must be detained for a removal hearing under INA § 240. As we saw in Chapter 1, under INA § 101(a)(13)(C), a lawful permanent resident who arrives at the border is deemed to be seeking admission if he or she has:

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1. 2. 3. 4. 5. 6.

abandoned or relinquished LPR status, been absent from the U.S. for an excess of 180 days, has engaged in illegal activity after having departed the United States, has departed the U.S. while in removal proceedings, has committed an offense in INA § 212(a)(2), or has entered or is attempting to enter without inspection. 98

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634 F.3d 1081 at 1092 fn. 13 (9th Cir. 2011). See also ACLU Practice Advisory on Diouf v. Napolitano available at www.aclu.org/files/assets/Diouf_Practice_Advisory.pdf. 93 Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (emphasis in original). 94 Diouf, 634 F.3d at 1091-92. 95 Although Singh v. Holder concerned a Casas-Castrillon bond hearing, the same rules extend to Diouf bond hearings. Both Casas-Castrillon and Diouf concern prolonged detention under the immigration statutes while individuals challenge their removal order. Furthermore, in both cases the court applied the same standard and held that the noncitizen is entitled to release on bond if the government fails to show that the individual poses a flight risk or is a danger to the community. 96 See INA § 235(b)(1). 97 Such as those returning on advance parole. 8 CFR § 1001.1(q). 98 See INA § 101(a)(13)(C).

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For example, a long-time permanent resident who has been convicted of possession of under 30 grams of marijuana, which is not a deportable offense, and who travels outside the United States, will be considered to be “seeking admission” upon return for having committed an offense in INA § 212(a)(2), and will therefore also be subject to mandatory detention under INA § 235(b)(2)(A).

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Nonetheless, in the Ninth Circuit and Second Circuit, arriving aliens should be entitled to hearings at six months of detention. In Rodriguez v. Robbins, 804 F.3d 1060(9th Cir. 2015), the Ninth Circuit held that individuals detained pursuant to INA § 235(b) are also entitled to bond hearings after six months because individuals these individuals are also vulnerable to prolonged detention as “arriving aliens.” Rodriguez is currently being heard by the U.S. Supreme Court. The Second Circuit case Lora v. Shanahan, 804 F.3d 601 (2nd Cir. 2015) should similarly apply in this context. For further discussion on these cases, see § 9.5. § 9.9

Detention of Persons with Credible Claims to U.S. Citizenship

Some people may be U.S. citizens and not know it. For example, a person who was under the age of 18 years old when a parent naturalized, may have automatically become a U.S. citizen at the same time. 99 In 2009, Immigration and Customs Enforcement (ICE) issued a memorandum establishing procedures for investigating claims of U.S. citizenship and determining whether the person should be detained. 100 The ICE memorandum states that if probative evidence supports a person’s claim that she or he is a U.S. citizen, ICE officers must not detain the person even if removal proceedings are ongoing. The memo instructs ICE officers to investigate claims to U.S. citizenship as soon as practicable after encountering the person claiming citizenship. If the evidence supporting the citizenship claim outweighs evidence to the contrary, ICE officers and agents should not take the person into custody. However, the person may still be placed in removal proceedings. If someone who is detained after issuance of Notice to Appear (NTA) claims citizenship, the officers must fully investigate the merits of the claim. After investigating the claim, the officer must prepare a memorandum and should include it in the A-file. Detained individuals should be released from detention if the claim is credible on its face and the ICE investigation results in probative evidence supporting the claim.

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See INA § 320; see also Chapter 8, § 8.5, Acquisition and Derivation of U.S. Citizenship. U.S. Immigration and Customs Enforcement Memorandum, “Superseding Guidance on Reporting and Investigating Claims to U.S. Citizenship” (November 19, 2009). AILA InfoNet Doc. No. 10050769 (posted 05/07/10). 101 See discussion of Joseph hearing in § 9.2.B.2. 102 548 F.3d 708, 712 (9th Cir. 2008). 100

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Persons with citizenship claims have other avenues to challenge the legality of detention. They can first seek review before an immigration judge in a Joseph hearing, arguing that the DHS lacks the authority to detain persons with credible claims to citizenship.101 In the Ninth Circuit, persons may file a petition for habeas corpus to challenge the legality of their detention based on the citizenship claim. In Flores-Torres v. Mukasey, 102 the court held that a person may file a habeas petition before there is an administratively final order of removal. The court strongly suggested that DHS does not have the authority to detain individuals with nonfrivolous claims to citizenship

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during the removal proceedings. 103 Advocates in other jurisdictions may cite Flores-Torres as persuasive authority that the federal courts have jurisdiction to review citizenship claims and to grant release while removal proceedings are pending.

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“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Flores-Torres v. Mukasey, at 712 (citing U.S. v. Salerno, 481 U.S. 739, 755 (1987)).

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CHAPTER 10 WORKING WITH CLIENTS AND PRESENTING EVIDENCE: HOW TO MAKE THE BEST CASE POSSIBLE

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This chapter includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9

The Advocate/Client Partnership ..................................................................... 10-1 Creating a Partnership with Our Clients........................................................... 10-3 Dealing with Your Client’s Feelings ................................................................ 10-6 Preparing the Case for Hearing ........................................................................ 10-9 Important Duties for Client and Advocate ..................................................... 10-14 Introduction .................................................................................................... 10-15 Extreme Hardship ........................................................................................... 10-16 Equities ........................................................................................................... 10-28 Proving Rehabilitation: The Three Story Approach....................................... 10-30

There are two parts to this chapter. The first discusses how to work with your clients to elicit the information you need to present a successful case. The second part discusses the relevant factors that are common to almost every form of relief discussed in this manual, and how to prove them. PART ONE: WORKING WITH CLIENTS TO MAKE THE CASE § 10.1 The Advocate/Client Partnership As an immigration practitioner, you will encounter all kinds of individuals as clients. Some will have little experience with legal matters and will be bewildered by the process they find themselves in. Others will expect you to be a “fixer” who can magically make things right. Sometimes you will run across clients who are disenchanted with anyone who appears to be an authority figure and are both skeptical of anything you say and reluctant to put any effort into their cases. Winning any kind of immigration case, no matter what the evidentiary requirements are, is going to depend a great deal on a having a close working relationship with your client. This means you’re going to have to educate the client about both the legal requirements that need to be met and how both of you need to work together to prepare to meet those requirements. It also means that, over time, you will have to establish a rapport with your client so that you can effectively work together.

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Although it’s tempting, as the one with the legal expertise, for you to want to take charge of the case and decide what’s best for the client, or simply tell the client what to do, this “traditional” image of the relationship between the practitioner and client places you and your client on very unequal footing. As a result, the client may end up feeling put-upon, oppressed, or exploited, and may resent the things you ask him to do, as well as resent the fact that he may have to pay you what can seem to him to be an enormous amount of money. Clients may also resent having to

disclose personal details about their lives, and may experience your questions, however legitimate, as an invasion of privacy. This traditional approach can do a real disservice to clients—and their advocates. The client actually knows more than you do about the facts of the case, while you know more about the law and procedure. By working together as equal partners, you and your client can build a better case than either of you could do alone. By working in partnership, you and your client will have a better understanding of one another and what needs to be done to prepare the case, and a therefore a better rapport. Your client will feel more comfortable with you and therefore more likely to tell you things that could prove crucial to the case. The key is for the client to be actively involved in the case. Ways in Which Clients Can Contribute to Making the Case •

The client has access to all the facts and details about his or her life that might contribute to the case.

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The client may have ideas which would not occur to you about what documents exist that would support his or her case and how to get them.

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The client may understand many facts about his or her country that you do not know and cannot find easily by doing research.

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Clients can tell their stories well because it is real to them. Very often clients’ own words and descriptions get their stories across in a more persuasive, dramatic manner than the words we might make up for them to use.

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The client understands what it is like to be a foreigner caught up in a case against USCIS or ICE, facing possible deportation and/or family separation. If we listen to how the client feels we may be able to work with him to reduce his and his family’s anxiety, while at the same time allowing him to use his strong feelings to tell his story persuasively.

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The client will learn from the process the more he or she is involved in it. By being involved in the process, clients will gain confidence and be better able to raise their voices about issues that affect them. The client will also take more responsibility for the case and therefore, be less likely to blame or resent you as the advocate for any adverse outcomes in the case.

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It is the client’s life, and therefore the client deserves the right to be involved in the preparation of and decision making for his or her case.

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If we treat our clients as partners and encourage them to take an active role in becoming their own advocates, they will gain confidence in us and a better understanding of the legal process. This, in turn, will make them more likely to cooperate, will increase the likelihood of success, and make the practitioner’s job much easier. Why should this be so? There are many ways in which working in partnership with an informed client benefits both the client and the practitioner, some of which are listed below:

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Ways in Which Client Involvement Makes the Case Better and the Practitioner’s Job Easier •

A client who understands what he or she has to prove is more likely to tell you what you need to know to make the case, and less likely to omit something that may be important.

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A client who understands what he or she has to prove will make a better witness, because he or she will understand the purpose of the questions being asked. He or she will also be less likely to be tripped up on cross-examination.

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A client who understands the nature of his case is more likely to be emotionally invested in the process of preparation, and therefore more motivated to find evidence and witnesses that support the claim for relief.

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A client who understands the nature of his case is more likely to be willing to pay for and undergo medical and/or psychological evaluations, because he will better understand the need for them.

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The more involved a client is in his or her case, the more efficiently the case can be prepared.

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A client who understands the nature of his case is less likely to have unrealistic expectations of what you can do, and what you cannot do, in order to prevail. In other words, the client will understand that you cannot magically make things better, and that you need his help to win.

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A client who is treated with respect and dignity as an equal partner is likely to feel more empowered, and therefore will take a stronger interest, in making his or her case. This is especially true of those who have felt marginalized or dismissed by society.

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A client whose representative treats him with respect and dignity, and readily answers his questions, is more likely to trust the representative and therefore more likely to open up about difficult or embarrassing facts that either bolster the claim or could potentially undermine the case if revealed for the first time at the hearing.

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§ 10.2 Creating a Partnership with Our Clients A.

The Initial Interview with Your Client: Interviewing Basics

The initial interview of your client is extremely important. Not only does it function as a time to collect biographical and factual information, but at this time you need to lay the foundation for a constructive working partnership with your client. In Chapter 1, we discussed how to go about analyzing the case, starting with determining whether your client might have a claim to U.S. citizenship and ending with how to prepare both the client and witnesses for cross-examination.1 This of course, is very important, and cannot be ignored. However, you won’t get very far in acquiring the information you need to analyze the case until you set the foundation for working with your client in a partnership relationship.

See Chapter 1, § 1.7.

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1

First of all you and your client must be able to speak freely. If you do not speak the same language as your client, get an interpreter. Find someone who is fluent in both languages. This could be someone the client already knows and trusts, such as a family member. However, be sensitive to the fact that having family members at the interview may prevent some clients from speaking freely about some things, such as previous arrests. You or your agency might have staff members who can translate. You can compile a list of interpreters who work in your area. In order to speak comfortably, you should not be interrupted. Do not take phone calls during an interview or be interrupted by co-workers. To protect your client’s confidentiality, meet with your client in a quiet, private place where the client will not be overheard by others. Keep a detailed record of the interview. The client needs to know what he can expect of you. Begin the session by introducing yourself. Explain who you are, and what your role will be if you take the case. The more details you can provide, the better. Let the client know what paperwork you will be submitting and why, what hearings you will attend, and how often you reasonably expect to meet or communicate with the client in the preparation of the case. Whether you’re an attorney, a paralegal supervised by an attorney, or BIA accredited representative, explain what these terms mean. After you introduce yourself, you will want to get some basic information about the client. You will need to know the client’s name, address, phone numbers, and someone to be contacted in case of an emergency. It is also advisable at this point to gather the key details of your client’s life, e.g., when and why he or she came to the United States, received legal status, had immigration problems, etc., so that you can develop a chronology of his or her life. This chronology will not only help you get a big picture of the legal case and analyze it, but also explain the case to your client. During this first meeting, you can begin to establish trust with the client, explain the client’s legal situation so that he can understand it, and help the client gain a sense of control over his situation. B.

What You and the Client Expect of Each Other

After this first meeting, both you and your the client should understand clearly what you expect of each other. The client should understand the nature of your role as the representative in the removal process, how that process will unfold, and what your client can expect of you. You also need to tell the client what you expect of him and why these expectations are important. For example, you will want the client to: •

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• •

maintain regular contact with you and immediately tell you of any change of address or phone number (important to keep in touch and inform the client of any important court or USCIS interview appointments); take responsibility for knowing and keeping all court dates and appointments with you; do certain tasks to help prepare his case, as discussed in Subsection D below.

At this point, you may not know if you can help the client, particularly if your client has been charged with a criminal ground of inadmissibility or deportability. You may not know if he or she is eligible for any relief at this point, and you may need to obtain the criminal records first. You need to be clear with the client about this, and you need to be clear about what, if anything, the

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client will be expected to pay for your initial investigation, and that this will be separate from the fee the client will pay if you take the case. Once you have decided that you can take the case, you also need to tell the client what will be expected to pay for your services and what they will entail. Your office should have a policy about fee agreements, and use a standard written form. C.

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Explain the Theory of the Case and the Legal Procedures to the Client in a Way That the Client Can Understand

As practitioners, we understand the law and procedure and can explain it to the client. The client can only do his part if he understands what the case is about and what the legal issues are. A client who understands these things will also be much better able to tell his story at an interview or hearing. Since immigration law is complex, it may require some simplification and repetition before a client fully understands what will be involved in his or her case, particularly for those who have little education or legal experience. Think about how long it took you to understand some of the legal concepts that are prevalent in immigration law. Even for educated clients, the fact that immigration law is often arbitrary and illogical, not to mention unfair, can be difficult to comprehend. Therefore, it is best to both explain the law orally and also provide the client with a written explanation (in his or her own language unless the client is proficient in English). Explaining legal procedure includes explaining and making sure the client understands the penalties for failing to comply with biometrics requirements, failing to report a change of address, or failing to appear timely for hearings. Don’t forget these important details, since, as we know, there are severe penalties for such failures. 2 D.

Ask the Client to Do Work on the Case

Giving clients and their family members written tasks will help them think hard about the case. After you have explained to your client and her family what they need to prove and what the process of the case will be like, have them return home and describe their lives in writing. It’s helpful if you have a written list of the types of things you want them to focus on (for example, family ties, medical conditions) for them to take home with them. Also, ask them to list the activities they do together, how the applicant and the family support each other financially and emotionally, and what they like best about being together. Second, ask the family to write about what would be missing from their lives if the applicant were removed. Ask them to include the exact details of what they would miss and why. Ask them to explain how separation will affect each family member, not only the applicant. When a client explains his hardship to a judge in terms of hardship to the entire family, the effects of separation will be greatly increased. Encourage every family member to be active in the preparation of the case, even if he or she is not in danger of being deported. Ask each one separately to list what the impact of separation would be, and ask them to write down all their ideas.

2

See § 10.3 below.

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Example: Gilbert, a citizen of Guatemala, has lived in the United States as a permanent resident since 1982. Gilbert was placed in removal proceedings after returning from a trip

abroad because he had a 1990 conviction for possession of marijuana on his record. He is eligible for 212(c) relief, and in addition may be eligible for a 212(h) waiver or LPR cancellation of removal. He is married to Helen, who is also a lawful permanent resident, and they have a U.S. citizen child, Albert. You ask Gilbert and his family to show (1) that there is a real chance that Gilbert might have to be separated from Helen and Albert if he is deported; and (2) how separation from Helen and Albert will cause them all hardship. 1. To show that the family might have to separate, Gilbert could describe what life would be like for Albert to grow up in Guatemala instead of the United States. He could also present details of Albert’s life here in the United States, and show the judge that he could not remove Albert from his life here to face a whole new life in Guatemala. He might also show Helen’s life here, and the opportunities she has had that she would not have in Guatemala. 2. Gilbert and Helen are really the only ones who can explain and express the extreme hardship they would feel being separated from one another. But recognize how hard it can be for people to discuss this painful and frightening scenario. How could you encourage Gilbert and Helen to discuss their feelings about the possibility of Gilbert having to leave his family in the United States? Some questions you might ask Gilbert and Helen are: What are the things that you do together now? What is your daily life like together? What special activities do you like to do together? Who has childcare responsibilities? Who has responsibilities for household chores? Now, try to imagine how all of this would change if Gilbert were no longer here. How would your lives change? How would each of you feel? Where your client is threatened with removal because of a crime, he and his family need to discuss how he got involved in criminal activity, why he must be remorseful and how he must show he has been rehabilitated. The client needs to understand that the judge must accept the fact of his conviction as the truth about his guilt. The client also needs to understand how crucial it is for him to turn over a new leaf, and how engaging in positive activities while the hearing is pending can help him to win his case. Ask both the client and his family members to think about what skills he has, and what types of things he could do in his community that would utilize those skills and benefit his community. 3 It will also be important in this process for the family members to think about the ways in which he has changed. Having the client complete a draft of the application form is also helpful, and will save you time. § 10.3 Dealing with Your Client’s Feelings

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The threat of deportation obviously creates tremendous anxiety for clients and their loved ones. It means the threat of destroying life as they’ve known it, potentially separating their families, and moving to a place that may have a lower standard of living, or a radically different way of life. Clients are understandably worried about how they will survive if they have to return to a country where they have to start over and their way of life will be completely different.

3

See § 10.6 below for a discussion on how to show remorse and rehabilitation.

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Most, though not all, permanent resident clients will come to your office because they are threatened with removal because of a crime. It is important to keep in mind several things when working with clients who have criminal records. Frequently they have been living in the United States since they were children and have known no other country as an adult. This can have numerous implications. The applicant may have become an LPR so long ago that he takes his immigration status for granted, and cannot believe that the U.S. government can and would actually deport him. Deportation may seem to be an unfathomable and unrealistic possibility to such a client, and as a result he may underestimate the severity of his predicament (though many clients understand what’s at stake all too well).

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On the other hand, the thought of deportation might become so frightening to the client that he gives up any hope of prevailing in the case, and may even be tempted to commit another criminal act. Some clients may need therapy to deal with the threat of deportation. It may help to tell the client that in spite of the seriousness of his situation, he will get his day in court, and beyond that appeals are available to avert immediate deportation. Your client may also feel a great deal of anger, particularly where the offense he committed doesn’t seem so severe that it should carry such drastic consequences. For those placed in removal proceedings due to criminal convictions, there is often a sense that they have already done their time and their lives have already been turned upside down by the criminal justice system. They may therefore (justifiably) feel that they are being punished a second time for the same crime. A client may maintain that he is innocent of the crime that forms the basis for the immigration charges against him, and may wish to relitigate his convictions in immigration court. Some may not readily show remorse. Still others admit their guilt but are acutely embarrassed by their criminal history. All of these feelings can create barriers to a productive client-practitioner working relationship. There are a number of things you can do in initial and subsequent interviews to address these issues and contribute to a good working relationship with the client. One thing that is absolutely essential is that you make the client understand that whether he maintains innocence or admits guilt, the immigration judge will accept any criminal convictions as valid and will not relitigate the client’s guilt or innocence in immigration court. Your explanation of what’s at stake for the client (loss of permanent residence, deportation, and often the possibility of never being able to return to the United States without facing serious federal criminal penalties) should convey the seriousness of the situation. At the same time, you should acknowledge and empathize with the client’s anger, the sense that the system is unfair, and that the client’s entitlement to remain in this country is being infringed upon. Nevertheless, you must also bring the client back to the reality that an attitude of entitlement will probably backfire in immigration court, and that a certain amount of humility and acceptance of responsibility will go a long way. By doing so, you will likely contribute to the client’s confidence in you as an advocate and enhance your own ability to view the situation from your client’s perspective.

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Even as you empathize with your client, however, you must make it clear that your understanding of his perspective does not obviate the need to present a case that will meet the legal requirements for obtaining relief from removal.

It is important to stress to your client that while the predicament he finds himself in is serious, you respect the value of your client’s experience and recognize it as one of the keys to winning the case. You should emphasize to the client that only your client possesses the information that will allow both of you to present a sympathetic story to the immigration judge. Supplant any notion your client may have that he or she will play only a passive role in the case with the notion of partnership and a cooperative relationship. Be sure you recognize, and let the client know you recognize, the value of his past exposure to courts, judges, lawyers, social workers, children’s teachers, other institutions, etc. These past experiences contribute substantially to the problem-solving skills your client will bring to bear in the case. It is important for the client to understand that he will need to use those skills once again in the immigration setting. Listen to the client, both to gain his trust and because he may tell you something surprising that contributes to the case. Detained Clients Some of your clients will be subject to mandatory detention. Obviously, detention is a barrier to establishing a good working relationship with your client. If at all possible, you should visit your client personally. Face to face communication, even if it’s behind a barrier, is a much better way to establish a rapport than a telephone conversation. Making the effort to visit someone in jail may impress upon him or her that you really care about his case and about him as an individual. You need to bear in mind that a detained client is going to be desperate to be released, and may doubt your effectiveness as an advocate if you cannot secure his release. You need to be patient in explaining the harsh mandatory detention provisions that exist in immigration law. On the other hand, you need to explore any way that you can argue your client is not subject to mandatory detention (see Chapter 9). DHS is well aware that detaining immigrants, particularly LPRs with criminal convictions, in remote detention centers (Eloy Detention Center in Eloy, Arizona is a notorious one) far away from their families, makes it easier to deport them. Either they give up because of the desperation to be free, or are so demoralized by the separation from all they’ve known that they are not able to be effective witnesses in court. Access to counsel is obviously a huge problem for this population, making it difficult to prepare a good case. Access to family is also a huge problem. The expense of transporting witnesses to a remote location is another obstacle to the effective presentation of your client’s case. Though telephonic hearings are conducted, your client is at a distinct disadvantage in a telephonic hearing.

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Nevertheless, detained clients can be very effective partners in preparing their cases. First of all, there is little else for them to do, and so they have time to think about how to strategize their cases. Allowing them some measure of control over their situation can help boost their confidence and motivate them to fight for their rights. If your client is detained in a remote detention facility, try to get him bonded out if at all possible, or, if not, try to get ICE to agree to an ankle bracelet instead of physical incarceration. If your client is subject to mandatory detention and you can’t be him released under an alternate form of detention, try to partner with pro bono organizations in the area of detention. This can help in a number of ways. First of all, local organizations will know more about the immigration judge handling your client’s case than you do. Local organizations also know about procedures at the

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facility that can help you and your client’s family avoid pitfalls. For example, they can help you find out what kind of information the detention facility requires about your client’s family members in order for them to visit him, what the phone system is like, or how you can improve your client’s access to his family. You may even be able to get a law student or volunteer in the area to visit your client personally. Making this extra effort will boost both the client’s morale and his confidence in you as his advocate.

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Some nonprofit organizations can help. Organizations such as CIVIC, www.endisolation.org, provide a free hotline for immigrant detainees, coordinate regular in-person visits in detention centers throughout the country, and arrange a pen pal program. Detention Watch Network at www.detentionwatchnetwork.org/members. Detention Watch Network also has a very useful map of all the detention centers, ICE offices, immigration courts, and community organizations in the United States. You can use this map to determine what organizations are in the area of your client’s detention, and to find out contact information and phone numbers for EOIR and ICE. Go to: www.detentionwatchnetwork.org/dwnmap. If your client is detained in a remote facility, you are probably going to be in direct contact with one or more of his family members, especially for obtaining documentation, etc. It’s important to have a good working relationship with the client’s family, though you have to be mindful of your client’s right to confidentiality. If you can establish a good rapport with a family member that the client trusts, then the client will be more likely to have confidence in you. § 10.4 Preparing the Case for Hearing A.

Obtaining Documents and Finding Witnesses

Once you have a basic picture of the client’s and his family’s life, based on your initial interview and their subsequent written explanations, you and your client can begin to ascertain what documents will be needed to support the case, and whom you should call on to be witnesses. Your client may have suggestions that you hadn’t thought of. You also need to ask the client and his family to help you acquire the evidence needed and contact the witnesses. It is sometimes helpful to explain why each document is important, and how it will be used to support the case, although in a partnership relationship this may not always be necessary. For example, if you want to obtain medical records of a particular family member to show hardship to that person, you need to explain why they are needed and ask your client to obtain them from the doctor or medical institution involved. You will likely want your clients to obtain birth and school records of their children, and evidence of employment and income of family members. Having your clients obtain these records themselves will save you time and give them the opportunity to take some control over the case. Whatever documents you and your client believe to be necessary and/or helpful to establishing the case, prepare a to-do or checklist of those documents for both yourself and the client, and be clear about when you need to receive those documents so that they can be submitted to the court on time.

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You may want to explain why you think a certain person should be a witness, and how his or her testimony can help the case. This may get the client thinking about other potential witnesses who could bolster the case. Ask your client to request each witness’ help, and give your client a

deadline to make the contact so that you can interview the witness and get his or her statement, and determine his or her availability at the time of the final hearing. You may also want to ask your client and/or his family members to undergo psychological evaluations to prove hardship. You need to explain very carefully why such examinations, which can be costly, are necessary. Otherwise your clients are going to be skeptical, and reluctant to pay. They may also be reluctant to really talk openly about their worries and fears unless they are convinced that the professional’s help is necessary and will help them to win the case. B.

The Declaration and Its Use as Preparation for the Direct Examination

By the second or third interview with the client, after you have had the client and the client’s family describe their lives and the impact that separation would have on them (using the worksheets you’ve provided), you can begin to explain to them what facts will be most relevant to their cases, and why, in more detail. At this point, the client and his family should have a pretty good understanding of what’s required to win the case, and be ready to draft their declarations. You can describe the declaration to them as a letter to the judge, and ask them to tell the judge, in their own words, why they should be granted relief from deportation. Having the client and family members write a draft of their declarations is very important. It gives them an opportunity to tell their own story, in their own words and at their own pace. Often clients will reveal more facts in writing than they may have thought to reveal in person. Something about the solitude and privacy of writing encourages this. In addition, once you have read the draft, it will help you to ask more questions and elicit more important information, as well as to clear up confusion and eliminate discrepancies. Make sure you go over the facts and sequence of events several times to make sure that everything is correct. The client’s declaration provides an excellent basis for the direct examination. A good declaration contains all the facts and circumstances that are necessary for the immigration judge to know in order to grant the requested relief. It is a critical component of any request for relief from removal. The length of the client’s declaration can range from 5–25 pages, depending on the complexity of the client’s story and the type of relief requested. The declaration should contain the client’s story in his words and in a tone that are comfortable to the client. If you must suggest words or phrases for legal purposes that are unfamiliar to the client, make sure the client understands them. When the client reads over the final version of the declaration, you want it to sound familiar to him. Since the purpose of both the declaration and the direct exam is to get the client’s story across to the immigration judge, you can use the declaration, as well as the process you and your client went through in its preparation, as the framework for the direct exam. A sample declaration is included in this chapter as Appendix 10-A. C.

Preparing for Direct Examination

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1. Drafting questions As you no doubt know, you cannot suggest the answer to a question asked in the direct examination. Therefore, in drafting questions for direct examination, you need to think of a question that will most likely elicit the response you are hoping for from the client. Using the contents of the declaration as a guideline will make it easier to frame the questions, because the

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client will be familiar with the contents of the declaration and will know where you are going with your questions. For example, suppose that when preparing the declaration your client went into detail about the relationship he has with his family, and how they depend on one another for many things. In order to get the client to say something similar in direct examination, you would likely want to ask questions about what relatives he has in the United States and ask about his relationship with them. Imagine what the natural response is to particular questions (this will become easier as you practice with the client) because those responses will lead you to natural follow-up questions.

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2. Practice the direct exam with your client With your completed direct examination draft, meet with your client to try it out. Just as your client played an integral role in the creation of the declaration, ask him what he thinks in order to better plan and prepare the final direct examination. Before the first run-through, read the declaration together again. It may have been awhile since the declaration was prepared, and the details contained in it may be stale to the client by that time. Hearing the contents of the declaration will help refresh your client’s memory and clarify the way the story needs to be presented to the judge. By going over the declaration, your client will feel more comfortable answering the questions you have prepared for the direct examination since the answers should be similar to what’s in the declaration. After you and the client have gone over the declaration (perhaps more than once), you are now ready to ask the questions you’ve prepared. Since the client’s story is fresh in his or her mind, the direct exam will proceed more smoothly than if you had not gone over the declaration. The success of the direct examination depends on practice. Sometimes, the witness may be shy and not sound as forceful as you would like when answering the questions. A judge could misconstrue the shyness and think the client is being evasive. Thus, when practicing the direct exam, think of ways to get your client to act in a way that comes across more directly and persuasively. Sometimes it can be helpful to switch roles with the client, in order to demonstrate how the answers should be presented. However, although this technique may work with some clients you should be very sensitive to your client’s own style and remind him that the way you do things is not necessarily the most effective way for the client. The client will be nervous in court; therefore, you don’t want add to the anxiety by asking your client to act in a way that to him or her seems unnatural.

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Pay attention to the client’s gestures and body language, since the judge may construe certain motions negatively, affecting credibility. For example, if the client looks down at the ground a lot when practicing, you should explain that the judge could interpret this as being evasive or suggestive of lying. Warn your clients that in the United States looking someone in the eye is considered a sign of forthrightness and honesty; therefore the judge and ICE attorney might be more likely to think a person who looks directly at them is credible, and that a person who looks elsewhere is being evasive. You should be aware that in some cultures looking at someone, especially a person of authority, directly in the eye is considered the height of insolence. Clients from such cultures might find it extremely difficult to look directly at an authority figure such as an immigration judge, but must be encouraged to do so, at least from time to time, especially when the judge is speaking directly to the client. If your client finds it impossible to do this, an explanation of their cultural roots to the judge might be a good idea.

Warn your client about behavior that the immigration judge might find annoying or offensive, such as inappropriate loudness, laughter, or other undignified behavior. Advise them to dress and act modestly in the courtroom. 3. Describe the courtroom, hearing process and behavior expected in court As part of your direct examination preparation, describe the hearing process and procedure. For most clients, the idea of “performing” in a courtroom is intimidating. Understanding what must be proven during the hearing helps the client develop confidence for both direct and crossexamination. But learning about the hearing logistics and physical layout of the courtroom is also helpful to most clients. Some clients have benefited from observing an actual hearing. For those who cannot do so, you might want to draw, on a piece of paper, a diagram of where the judge sits, where the interpreter sits, and where you will sit, and where the ICE attorney will be sitting. It is also worthwhile to share with the client what you have found out about the judge who is deciding the case; for example, what her personality is like, whether she is formal or informal, and whether she is known to be a stickler or more lenient. Share any information you have concerning the government attorney as well. The idea is to try to reduce as much of the uncertainty related to the hearing as possible. Give the client time to ask you questions about the hearing process. In addition, don’t forget to inform your client that if you, the immigration judge, or the ICE attorney asks a question that the client does not understand, he has the right and the duty to ask that it be repeated, and he must not ever answer a question unless he understands it. D.

Preparing for Cross-Examination

Discussions on the basic strategy of the case and preparation for direct examination aids immensely in the client’s performance during cross-examination by the ICE attorney and in answering questions from the immigration judge. By the time you have finished writing the declaration, you should have a good idea of the weaknesses in your client’s case. This is where most of the questions from ICE and the immigration judge will come from. You can best prepare your client for cross-examination by coming up with a list of likely questions that the ICE attorney and the immigration judge will ask, and suggested responses based on the facts in your client’s declaration.

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Explain to your client that the role of the government attorney during cross-examination is to convince the judge that he should not be granted the relief requested. Explain that the ICE attorney will try to do this by showing that the client is not statutorily eligible for relief, and/or that the client is not credible, and, if the relief is discretionary, that the client is not the type of person we want in the United States. If the client understands the purpose of the crossexamination, he or she will likely perform better on the witness stand. You must also explain that unlike in direct examination, the ICE attorney on cross can ask questions that suggest the answer, like “isn’t it true that you were a gang member for many years?” Clients should be prepared on how to debunk the impression that the ICE attorney is trying to make on the judge, and to keep cool, even when the questions are annoying or obnoxious. Clients should be warned that the ICE attorney wants to confuse and rattle them, and that they need to be on their guard when answering questions. Again, let your clients know that they must not answer questions that they do not completely understand, and, in the case of cross-

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examination, that they must think carefully before they respond. Tell your clients that one way to buy time while you’re trying to think is to ask for a question to be repeated. You should tell your client key phrases to use if he gets stuck on a question. For example, in cases of clients with criminal records, the ICE attorney may badger the witness by saying things such as “why did you use drugs,” trying to elicit some type of weak response such “uh, I don’t know” from your client. However, you can tell your client that if he is stuck on a question like that he can say, “I’m sorry that I did it and I regret my actions. I know I will never do it again.” With such a response, your client is maintaining his assertion that he has been rehabilitated.

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To successfully go through a cross-examination, a client should know what the other side is trying to make him say. This will help the client become aware of what kinds of statements he should avoid saying during the cross exam. For instance, in criminal cases, a client should avoid downplaying the seriousness of his crime, or of his own responsibility for it. If a client knows what needs to be proven in his case, such as rehabilitation and remorse, he will improve his chances of having a successful cross-examination. It is important on cross-examination, just as it is on direct examination, that your client maintains his credibility. Clients must be told that the ICE attorney will try to show that they are not credible and/or that they are lying. This is another reason why the client must be completely familiar with the facts stated in his declaration and stated in his direct examination. If direct examination and cross-examination are on different days, as sometimes happens, the client must be prepared by going over the declaration and/or direct exam again so the facts are fresh in his mind. You don’t want to give the immigration judge or ICE attorney an opportunity to find a discrepancy in the testimony. To help your client maintain his credibility, try to anticipate as many questions that may be asked on cross-examination or by the judge as possible. If most of the cross-examination questions are practiced then there will be less likelihood that the client will become confused during the hearing. Confusion often happens around dates of events and the sequence of events; therefore, you need to review them until the client is clear about them. Remember that our American preoccupation with dates of events is not shared by many other cultures. If there are lots of dates and the client is having trouble remembering them, then it may be best for him not to mention dates at all or as little as possible. Tell your clients that if they can’t remember a specific date, it’s best to say so rather than trying to make one up to please the judge. That can be disastrous! Practicing for the cross-examination is just as important as practicing the direct examination. Practitioners should play the role of the ICE attorney and practice asking the client questions on cross-examination. Make sure before practicing that you explain to the client that you are playing the role of the ICE attorney, and that you are not actually in doubt about their testimony. This way you will not lose any of the trust you have been building with your client over time.

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§ 10.5 Important Duties for Client and Advocate A.

Get—and Keep—Current Address Information from Your Clients

Clients and their representatives are required to give ICE and the immigration courts up-to-date addresses. • • • • • • B.

Always get a relative’s or friend’s name, address, and phone in case you lose touch with your client. Keep on hand a large number of change of address forms. When you send in a change of address, keep evidence that it was sent in your file. Get into the habit of checking your client’s address and phone number every time you meet or talk. Make sure the client knows, in no uncertain terms, how critical it is to get that information to you, ICE, USCIS, and the courts. Check with ICE, USCIS, and the immigration judge on the information that they have on the client’s address and on your representation. If the client changes his or her address, make sure to go through the appropriate process to change the address that the immigration court, ICE, and/or USCIS has for the client. Inform Your Client of His or Her Responsibility to Show Up for All ICE and USCIS or Immigration Court Hearings, Interviews, Etc.

Let your clients know that their failure to show up on time for these could result in the USCIS denying clients applications or the judge ordering the clients deported in their absence, and possibly bar them from asking for relief from deportation. • • •

C.

Put these requirements in writing for your clients so that there is no uncertainty about whether they have been told. Arrange with your clients for them to meet you early for any interviews or hearings. That way, if they are late, they will still not miss their hearing. With out of town clients you may even have to ask them to come to town the night before their hearing. Make sure your clients know that the courts and ICE may not forgive their failure to show up even for something that may seem like a serious emergency to them, like their child being ill. Inform Your Client of the Need to Update His Biometric Information (Fingerprints) in Accordance with the Immigration Judge’s and/or DHS Instructions

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Make sure your client is fully aware of the date(s) for updating biometrics, and that failure to do so can be considered abandonment of his application for relief from removal. 4

4

See 8 CFR § 1003.47.

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D.

If You Need to Get a Hearing or Interview Date Postponed, or You Are Requesting a Change of Venue, Make Sure That You Make a Formal Request for It and That It Is Made Far in Advance; Make Sure to Follow Instructions in the Immigration Court Practice Manual 5 Governing Such Requests

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These requests should be formally made in writing and sent certified mail, return receipt. Just requesting the continuance or change of venue does not mean, however, that it has been granted. Check in advance to make sure that it has been granted. If it hasn’t, your client must show up at the hearing or interview, even if it is far away. PART TWO: EVIDENTIARY CONSIDERATIONS § 10.6 Introduction A.

Three Critical Points for Every Case

There are three key points that you should emphasize to the immigration judge in every case. First, the immigration judge must consider all of the evidence that is relevant to the case. Second, the immigration judge must specifically consider the evidence offered to support the applicant’s case, rather than just relying on how immigrants generally would be affected by the same or similar factors. Third, the immigration judge must consider the evidence “cumulatively.” This is true whether you’re applying for LPR cancellation of removal or former § 212(c) relief, where the positive and negative factors must be weighed, or you are seeking § 212(i) or other waiver relief where you have to show extreme hardship to a statutory relative. See Matter of Marin, 16 I&N Dec. 581, 582-83 (BIA 1978) and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). 6 B.

Evidence That Must Be Shown in Most LPR Cases: Hardship, Positive Equities, and Remorse or Rehabilitation

No matter what type of application for relief you will be filing on behalf of your LPR client, the chances that relief will be granted in the exercise of discretion will be enhanced if you are able to show that your client and/or his family will suffer significant hardship if the client is deported. This is true whether or not a showing of “hardship” to the client or a statutory relative is actually required by the statute in question. In addition to analyzing hardship, it is also important to show that your client deserves the relief she is seeking in the exercise of discretion. What are the equities in her case? This inquiry is broader, and distinct, from a hardship analysis. Many forms of relief explicitly require the applicant to demonstrate a certain level of hardship to a certain relative. Even if that hardship has been shown, the applicant will want to show other positive equities in her case. Whereas a hardship inquiry involves an evaluation of how the qualifying relative would suffer if the applicant were denied admission or removed, positive equities can include a wider range of factors (such as the length of time in United States, family ties, employment history, community involvement, good moral character, etc.) Oftentimes one factor may be a positive equity, as well as a reason for hardship. For example, say your client has been a permanent resident since the age The Immigration Court Practice Manual is available on the EOIR website, at: www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htm. 6 See also Chapters 4, 5 and 6.

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of three, cannot speak the language in his home country, and knows no other way of life. His long-term residence is an equity, and could potentially cause him cultural, social, and economic hardship if he were deported. Hardship and equities play a significant role in the balancing test, where the immigration judge must weigh the person’s positive and negative factors to determine whether she deserves relief in the exercise of discretion. As we have seen in this manual, this balancing test is a requirement for the majority of § 212(c), § 212(h) and § 240A(a) LPR cancellation of removal cases. 7 As a general matter, it is wise to attempt to show that the equities balance in your client’s favor in each and every type of case. Finally, if your client has prior criminal violations, showing remorse and rehabilitation is critical. For example, even though the BIA holds that rehabilitation is not a requirement for relief under § 212(h), there are no known published cases in which an individual who could not show rehabilitation was granted relief. Because these concepts are so important to success in the majority of cases involving permanent residents, this section discusses them in some detail. § 10.7 Extreme Hardship Many immigrants living in the United States wish to stay at least in part due to the hardship that they or their families would suffer if they had to return to their country of origin. The hardship an immigrant may face upon removal comes in many forms—economic, social, medical, psychological, and educational, to name a few. Each type of hardship rarely exists in isolation, and one type of hardship may create, amplify, or complicate others. The hardship that each individual or family faces on a daily basis, or especially following a deportation, will vary a great deal in degree, breadth, and duration. Rarely, however, will you find an individual fighting deportation from the United States who would not face any personal or familial hardship if she were deported. While this hardship is often a reality for many immigrants in removal proceedings, proving hardship is a specific eligibility requirement for certain forms of immigration relief and waivers. In these contexts, our laws have determined a specific degree of hardship required, and specific relatives who must face the hardship for a person to qualify for relief. Proving that a certain person or people will suffer hardship plays a crucial role in these applications for discretionary relief and often presents the greatest challenge to winning the case. As legal advocates, our job is thus not only to identify a possible immigration benefit or relief from removal a client might qualify for, but also to work tirelessly with the client and her family and friends to explore and document the many ways her deportation would cause hardship.

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There are two standards of hardship that clients may encounter and be required to prove in order to win a case, one more stringent than the other: “extreme hardship” or the stricter “exceptional and extremely unusual hardship.” USCIS issued specific guidance on “extreme hardship” in November 2016. 8 If your client’s case requires extreme hardship, make sure to read this guidance 7 8

See Chapters 4, 5, and 6. 9 USCIS-PM B, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartB.html.

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thoroughly for pointers on how adjudicators may view a hardship determination. As a quick reference, please see the chart below on what hardship standard applies, and to whom, for most types of relief and waivers requiring hardship. For more information on these standards and hardship cases in general, please see the ILRC’s manual, Hardship in Immigration Law: How to Prepare Winning Applications for Hardship Waivers and Cancellation of Removal. Form of Relief

INA

Hardship Standard

Whose Hardship Qualifies?

Suspension of Deportation

Old INA § 244(a)

Extreme

Applicant or USC or LPR Spouse, Parent, or Child of Applicant

Suspension of Deportation for cases involving certain crimes

Old INA § 244(a)(2)

Exceptional and Extremely Applicant or USC or LPR Unusual Spouse, Parent, or Child of Applicant

Non-LPR Cancellation

INA § 240A(b)

Exceptional and Extremely USC or LPR Spouse, Unusual Parent, or Child of Applicant

VAWA Cancellation

INA § 240A(b)(2)

Extreme

Applicant or Parent or Child of Applicant

NACARA Cancellation/ NACARA Suspension

NACARA; 9 8 CFR §§ 240.61-240.66

Extreme

Applicant or USC or LPR Spouse, Parent, or Child of Applicant

NACARA Cancellation/ NACARA Suspension in cases involving certain crimes

NACARA; 8 CFR § 240.66(c)

Exceptional and Extremely Applicant or USC or LPR Unusual Spouse, Parent, or Child of Applicant

212(h) waiver

INA § 212(h)

Extreme

212(h) waiver in cases involving violent or dangerous crimes

INA § 212(h); 8 CFR § 212.7(d)

Exceptional and Extremely USC or LPR Spouse, Unusual Parent, Son or Daughter of Applicant

212(i)

INA § 212(i)

Extreme

USC or LPR Spouse or Parent

212(i) for VAWA selfpetitioners

INA § 212(i)

Extreme

Applicant or LPR, USC or “qualified alien” parent or child 10

212(a)(9)(B)(v)

INA § 212(a)(9)(B)(v)

Extreme

USC or LPR Spouse or Parent

Extreme

Applicant

Waiver to remove conditions INA § 216(c)(4) on residence

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USC or LPR Spouse, Parent, Son or Daughter of Applicant

9

Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997). The “qualified alien” listed under this section of INA § 212(i) also refers to someone who is: an asylee or refugee; a person paroled into the country for at least one year; an alien granted withholding of deportation or removal; an alien granted conditional entry under INA § 203(a)(7) as it existed prior to April 1, 1980; and Cuban and Haitian entrants. 8 USC § 1641(b). 10

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Note that many waivers and forms of relief in the INA do not require a showing of hardship. For example, cancellation of removal for Lawful Permanent Residents (also known as “LPR cancellation”) under INA § 240A(a) does not require a showing of hardship. As mentioned above, however, best practice is to bring up hardship whenever it can help a case, even if it is not an explicit requirement. See § 10.8 for a discussion on how hardships can be used to demonstrate equities. The discussion that follows identifies common themes in hardship cases. These themes have been developed over the years by case law, particularly the laws governing suspension of deportation under former § 244 of the INA, and most recently by USCIS’s 2016 extreme hardship guidance. A.

Family Issues 1. Introduction

To show hardship to family members, several important possibilities should be considered. They include the hardship of family separation, the possible “deportation” or forced departure of U.S. children, and the loss of a family member’s lawful permanent resident status. Each of these issues is relevant not only to the hardship of the applicant herself, but to the hardship of her qualifying family members as well. The possibility of family separation may be the single most influential factor in deciding whether deportation will cause extreme hardship. 11 Some old suspension cases held that family separation alone might be enough to establish extreme hardship. 12 And, of course, the hardship of family separation is relevant not only to show the applicant’s extreme hardship, but to the hardship of a spouse, parent or child as well. However, where the balancing test is employed, the BIA or the immigration judge can still deny relief in the exercise of discretion, even though deportation will cause extreme hardship to a client’s spouse and children. 13 Preventing family separation has traditionally been a long-standing concern of Congress, the courts, and immigration officials. The legislative history of the Immigration and Nationality Act (INA) “clearly indicates that the Congress … was concerned with the problem of keeping families of United States citizens and immigrants united.” 14 Federal courts have also consistently found that family unity is of the utmost importance. 15 The client must prove the ways in which separation will cause her and her family hardship. She must be specific. She cannot rely on generalizations. She must prove the ways in which separation will cause hardship by providing letters, affidavits, testimony, or other kinds of

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See, e.g., Salcido-Salcido v. INS, 138 F.3d 1292 (9th Cir. 1998); Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir. 1981). 12 Mejia-Carrillo, 656 F.2d at 522. 13 See Matter of Mendes-Moralez, 21 I&N Dec. 296 (BIA 1996), discussed in Chapter 6, § 6.6. 14 H.R.Rep No. 1199, 85th Cong., 1st Sess. 7, reprinted in 1957 U.S. Code, Cong. & Admin News 2016, 2020. 15 “The existing case law uniformly emphasizes the importance of the question of the separation of family members from each other for purposes of a § 244(a)(1) extreme hardship determination … [requiring] close and careful scrutiny.” Bastidas v. INS, 609 F.2d 101 (3rd Cir. 1979).

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evidence that speak about the effect of deportation. She must provide facts that reveal a real chance that her family would have to separate if she were deported. 2. Separate or live together in another country?

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Sometimes it is not clear from the family situation whether separation will result or not. Clients may have some family members who are living in the United States legally and others who are not living in the United States legally. Often practitioners, ICE, and judges assume that family members will leave the United States with the client if she is deported. (See Subsection 3 below for a more detailed discussion regarding U.S. citizen and LPR children). This is not always true. If a person is going to be deported, she and her family will have to decide whether to separate, or to leave the United States together. This dilemma is an important factor in determining hardship. Because of this dilemma, it may be necessary to prepare arguments for each possibility. In cases where the family will be (or might be) separated, the applicant, her family and you must explore: a) how the applicant will suffer hardship if she is forced to live in a different country from particular relatives and b) how the applicant’s statutory relatives will suffer if they remain in the United States after the applicant is deported. Additionally, they must show why they will separate. Immigration judges will pay scant attention to the hardship of family separation unless the client demonstrates an intent to separate. If, on the other hand, the family chooses not to separate and to move together to another country, the applicant, her family and the legal worker must explore how the family will suffer by living in another country. Example: Roberto is a lawful permanent resident facing removal because he has a deportable firearms conviction. Assume he is eligible to re-adjust through his wife but will need a 212(h) waiver. His wife is also a lawful permanent resident. Both of his wife’s parents are also lawful permanent residents. Roberto, his family, and you discuss the dilemma of separation. In this case, you must show the immigration judge the dilemma facing Roberto’s wife. The dilemma is two-fold. If Roberto is deported, not only must Roberto’s wife decide whether to separate from her husband or go with him and lose her lawful permanent resident status, but she must also choose between separating from her parents or her husband. Either way, the hardship to her will be significant. Roberto too, will suffer hardship either way. If his wife stays with her parents, he will be without his life partner. If she goes with him, she will be torn between him and her parents, and that, in turn, will cause anguish to him. If they have children, the children will either be deprived of a father if they stay in the United States, or be deprived of their grandparents if they go with their father. 3. Hardship factors specifically relevant to children Many applicants for relief, particularly those who have been in the United States for a number of years, have U.S. citizen or LPR children. Hardship to children can be particularly sympathetic, and it often becomes a central focus of these cases, assuming that the parent has a close relationship with the children and provides them with both emotional and financial support. In its hardship guidance, USCIS recognizes “substantial displacement of care of applicant’s children” to be a special circumstance that weighs heavily in favor of a finding of hardship. 16 Many factors 9 USCIS-PM B(5).

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are specifically relevant to the extreme hardship of children whose parent faces deportation. Obviously, U.S. citizen and lawful permanent resident children have a right to remain in the United States. When facing deportation, the parent faces a terrible choice. He or she can take the children to a home country which is strange to the children and in which the children will likely not have the same opportunities as in the United States, or the children can be left behind with relatives or friends in the United States. To document hardship to children, you and your client must do two things. First, provide a good description of the child’s life in the United States to the immigration judge. For example, the client should gather: affidavits from the child’s teachers, neighbors, ministers, and other family friends; report cards, and other school records; letters about his other activities—for example, from coaches, music lesson instructors, karate teachers, after-school program directors, drama teachers, tutors, band leaders; and letters from any other adults whom he sees on a regular basis (such as friends’ parents, or counselors). If the child suffers from any unique physical, mental or medical conditions, the client should obtain letters from the psychologist or doctor describing the child’s current condition and any treatment that he is receiving. Second, you and your client must show what the child’s life would be like if she were forced to live in the other country. The judge will want proof that deportation will harm the child. Affidavits by psychiatrists or counselors can help document psychological or emotional hardship. This kind of expert testimony can be very persuasive to judges. Any evidence showing that the child does not speak the language of the foreign country very well, that the child will be unable to continue with her favorite activities, or that the child’s education will suffer will help prove hardship. a. Medical conditions Whether your client intends to take her children with her if she is deported or leaves them behind, any evidence of a learning disability or any special medical condition that a U.S. citizen or LPR child has should be presented. For example, if the child is unable to learn a foreign language, this is strong evidence that the child would not be able to assimilate to the new culture. Also, if the child suffers from a medical condition that can only be treated in the United States you can show that the child would suffer extreme hardship if she were sent abroad. If that same child must remain in the United States even if the parent is deported in order to receive adequate treatment, she would suffer emotional hardship due to separation from the parent, which in turn may exacerbate the child’s medical condition. If your client has a child that suffers from conditions that are not commonly seen, it would make the claim for extreme hardship to the child much stronger. b. Hardship due to separation from the parent

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If your client has children in the United States, it is important to consider two possible scenarios: (1) if they would stay in the United States even if your client is deported; and (2) if they would accompany your client to her native country if she were deported. Be sure to identify what is required for the form of relief you are seeking. The application forms for certain forms of relief specifically ask whether the applicant’s spouse and children would accompany the applicant if

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she were deported. 17 Application forms for other types of relief, such as waivers, do not ask the question specifically, but the immigration judge, DHS attorney, or adjudicating officer may ask your client what she and her family would do.

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Separation from a beloved parent can cause extreme trauma to a child. Most of the time, parents will not contemplate separation from their children. Such a thing is unthinkable to most parents. However, there may be times when separation will seem to be in the best interest of the child, and the parent facing deportation will be willing to make that sacrifice so as not to thwart the child’s education and future. If this is the case, you and the client need to convince the immigration judge that the prospect of separation is not just speculation, but is a real possibility. Again, you and the client have to explain why separation is being seriously contemplated, and what effect it may have on the child. Example: Rodrigo is a permanent resident in removal proceedings who is applying for LPR cancellation of removal. He is a widower and has a 16-year-old son, Jaime. Although hardship is not a required element of LPR cancellation of removal, Rodrigo should show the hardship his son would suffer if Rodrigo were deported. Jaime was born in Mexico; he came to the United States at the age of five and is an LPR. If Rodrigo is deported, he is seriously considering leaving Jaime behind in the United States, although father and son are close and Rodrigo does not want to live apart from his son. However, Jaime would lose his LPR status if he moved to Mexico with his dad, and he really wants to remain in the United States. He is hoping to go to junior college, and then transfer to a four-year college afterwards. He speaks some Spanish, but cannot write it very well. He wants to be a software engineer, and cannot envision starting over with his education in Mexico. He would be years behind his peers if he did that. Rodrigo would never forgive himself if he ruined Jaime’s chances of a successful future by making him return to Mexico with him, yet both he and Jaime are devastated at the prospect of having to live apart. Rodrigo has no idea how he will support Jaime from Mexico. c. Relocating with the parent The hardships children may suffer if forced to leave the United States may include having to adjust to another culture, language, and school system. Many of your LPR clients will have children who are U.S. citizens and who have known no life outside the United States. Others will have children who are LPRs but came to the United States at a very young age and have become completely “Americanized.” The older the children are, the more likely it is that they will suffer extreme hardship if they relocate. Evidence that the children primarily speak, read, and write in English and/or that they are not proficient in the parent’s native language is very important, as is evidence of the social and cultural hardship they may face, as well as evidence of their extracurricular activities and interests. For example, does the client’s son play football in high school, and/or is he an avid American football fan? Are the client’s children involved in gymnastics, music, dance, theater, sports, or other extra-curricular activities? For older children, what are their interests (science, sports, nature, computers, drama)? Do they have close friends that they would

See, e.g., Form EOIR-42B, Question 44; Form EOIR-40, Question 44; and Form I-881, Part 9, Question

6.

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miss? How often do they see their friends? What do they like to do together? How would the client’s child be impacted by moving to the parent’s home country? Losing all they are accustomed to by moving to a foreign country may result in significant emotional trauma to children. It is extremely important to submit psychological reports documenting the fear and trauma that the prospect of a parent’s deportation is having on a child. In addition, declarations from parents, aunts and uncles, and other family members that document a child’s special ties to a relative who would be left behind in the United States can be very powerful evidence of emotional hardship. If your client’s children would be unable to obtain the same educational and economic opportunities abroad, your client should try to obtain letters from relatives abroad describing the lack or difference in educational and other opportunities in the town where the child would live. Your client could ask a relative abroad to describe the school in the town (e.g., what grade it goes up to, how far away the nearest school is where the child could continue her education, how much it would cost for her to attend). A friend or relative might also have information about the number of children who actually continue with school, and the number of children who go to work instead (and at what age). The client could also give testimony on the educational opportunities in his home region from his personal knowledge and experience. Internet searches can also reveal relevant information on educational and economic opportunities in the home country. Example: Your client’s daughter Teresa is 13 years old. Teresa is worried that if her dad is deported and she has to relocate with him to Honduras, she will not be able to play her favorite sports or play in the school band. Teresa was worried so she wrote a letter to her cousin, who lives in Honduras. The letter explained how much Teresa likes playing football and baseball, and playing trumpet in the school band. Her cousin wrote her back telling her how lucky she was because girls in Honduras are not allowed to play football and baseball and her school does not have a band. The cousin’s letter may be used as evidence to show Teresa’s hardship. Additionally, Teresa can use letters from the coaches of the sports teams and the band director at her school to show her participation in these activities here. Former suspension of deportation cases have held that the hardship to both parent and child are relevant even if the parent does not live with the child. 18 These cases also found that hardship to children born out of wedlock must be considered as it would for any other child. 19 Even outside of the suspension of deportation context, these cases are relevant to the way extreme hardship is defined for all remedies in which hardship plays a role. B.

Hardship to the Applicant and to Non-Immediate Family Members

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Extreme hardship to the applicant’s spouse, child, or parent who is a U.S. citizen or lawful permanent resident is relevant to any application for relief. Even if it’s not a statutory requirement (for example: § 212(i) waivers of inadmissibility for misrepresentation, where a U.S. citizen or LPR child’s hardship does not count), it’s going to be relevant to whether the judge is inclined to grant relief in the exercise of discretion. 18 19

Bastidas v. INS, 609 F.2d 101, 103 (3rd Cir. 1979). Contreras-Buenfil v. INS, 712 F.2d 401 (9th Cir. 1983).

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Hardship to extended family members may also be relevant, even though the hardship to such relatives is not included in the statute. This is because their hardship is likely to impact and cause hardship to those whose hardship does count, whether the application is for a waiver of inadmissibility under § 212(i) or an application where the balancing test is employed. The 2016 extreme hardship guidance explicitly recognizes that hardship to the applicant or other nonqualifying relatives can itself cause hardship to qualifying relatives. 20

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When there are close ties between the statutorily recognized relatives (or the client herself, in the balancing test) and an extended family member or even a friend, the argument should be couched in terms of how the qualifying relative would suffer extreme hardship because of the separation from that person with whom a special relationship exists. 21 Furthermore, such a relationship is also relevant to whether relief should be granted as a matter of discretion. Example: Helen is applying to re-adjust status after being placed in removal proceedings for a deportable crime that is also a ground of inadmissibility for which she will need a 212(h) waiver. Her parents, brother, and sister-in-law are lawful permanent residents. Helen is very close to her brother and sister-in-law. She takes care of their children every day after school, while their parents are working. You explain the legal requirements of the 212(h) waiver to her. Helen tells you that her siblings, nephews, and nieces depend on her and would miss her if she had to leave the United States. She further explains that she would also miss them a great deal. The court cannot consider the hardship Helen’s brother, sister-in-law and their children would suffer due to Helen’s deportation. The court also cannot consider Helen’s hardship. However, you can ask Helen how her parents would suffer knowing that their grandchildren would no longer benefit from Helen’s guidance, love, and affection. Maybe her parents would suffer from the increased responsibilities of looking after the grandchildren themselves, especially if they are elderly or in poor health. C.

The Health of the Client and of Family Members

Sometimes a client, or someone in his or her family, will have a medical condition that requires special care and attention that can only be found in the United States, or that is difficult to obtain in the native country. The effects of deportation on these health and medical care issues are of course relevant to extreme hardship, both because difficulty in obtaining adequate medical care is a hardship, and poor health can cause other hardship, such as impacting the ability to make a living or care for loved ones. Also, if the client or a family member (especially a statutorily recognized family member) is presently undergoing treatment for a medical condition, the interruption of the treatment and any trauma which may be associated with having to travel may add to the hardship he or she suffers. Evidence of a client’s poor health is generally more effective when it is expanded beyond the simple fact that the person is ill. For example, showing that the client’s health will get even worse if she is forced to leave tends to be more forceful, if such a showing can be made. Documentation 9 USCIS-PM B(4); see also Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) (addressing the relevance of the applicant’s hardship in non-LPR cancellation as it affected the applicant’s statutory relatives). 21 See, e.g., Zamora-Garcia v. INS, 737 F.2d 488 (5th Cir. 1984).

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must be provided on this issue from the doctor or facility where the person is undergoing treatment. Research and document if the home country has reduced availability or quality of health facilities or medical workers, prohibitive cost of facilities or medicine, bad water, poor sanitation conditions, or even a bad climate which exacerbates the conditions. The poor medical conditions of an applicant’s close family members, whether they are “statutory relatives” or not, is very important. Often the relative depends on the LPR client for support, transportation to doctors, assistance with household chores and companionship. Whether the relative would travel with the applicant or not if there is a deportation order, the relative may suffer hardship and this, in turn, will cause the applicant hardship as well. For instance, a sick relative who stays in the United States will suffer because the LPR client is unable to take care of him. On the other hand, an unhealthy relative who leaves the United States with the applicant may suffer due to inadequate medical care in another country. This issue often comes up where the client or his or her spouse has elderly relatives who are legally in the United States and who have chronic or severe medical conditions such as cancer, heart disease, diabetes, Parkinson’s disease, or a host of other ailments that make it necessary for them to receive frequent medical care. Frail or ill elderly family members are vulnerable to the disruption that a family member’s deportation would cause, and the impact on them should be brought forth to the immigration judge or adjudicator. D.

Loss of Family Member’s Lawful Permanent Resident Status

As part of the extreme hardship equation, never forget to emphasize the deleterious consequences of a loss of permanent residency status to your client’s statutory and extended family members. If a permanent resident client is deported, family members who are also lawful permanent residents (as well as U.S. citizens) might have to leave with the client in order to keep the family together. Many times, your clients will have lawful permanent resident spouses who would be forced to leave with them, or forced to choose between foregoing their legal status in the United States and maintaining the marital relationship. This is unfortunately a fairly common situation, and one that should be documented and demonstrated as a hardship in your client’s case, if applicable.

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The threat of this loss is an important factor in determining whether an applicant’s deportation will cause her lawful permanent resident family members extreme hardship. You need to ask both the client and the affected family member what that loss would mean to them. Has the family member lived in the United States since an early age? Does that family member have close ties in the United States, whether to other family, a church, friends, or a community organization? What kind of job does the family member have in the United States? What are his or her job prospects abroad? Would the family member suffer diminished job prospects in the home country due to age, sex, or other factors? How different would the family member’s economic situation be abroad? Does he or she speak the language in the home country? Is he or she even from the same country as the client? In the case of spouses especially, explore issues of job prospects, child care, and integration into the community in the United States in order to show the immigration judge just how drastic an impact the de facto deportation of the spouse would be on everyone in the family, but especially on the family member who stands to lose permanent resident status if the client is deported.

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E.

Length of Time in the United States, Integration into U.S. Society, and Community Ties

The longer an applicant or qualifying relative has been living in the United States, the greater the hardship will be if she must leave. Long-term residence has been identified as a key positive factor/equity in § 212(c) and LPR cancellation of removal cases. 22 It has been identified in § 212(c) cases as an “outstanding equity.” 23

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The longer a person has lived in the United States, the more likely it is that she has severed or lost her ties with her home country. This makes her return to the country of origin all the more difficult. This is particularly true where the person came to the United States at a very young age and has really known no other life. However, it is also true where someone has spent her working years in the United States, and therefore has diminished prospects for starting over in the home country. Therefore, any time you have a long-term permanent resident client or family member who has been in the United States for many years, you and your client need to emphasize this fact, and submit persuasive evidence that deportation will cause this person specific hardships that will be particularly difficult to endure. The extent to which a person has integrated into U.S. society, as well as the ties she has to the community in which she is living is likely to be greater the longer she has lived in the United States, although that is not always the case. Sometimes a person who has been a permanent resident for a relatively short time can also show a substantial amount of integration and community ties in the United States. As a general rule, the client’s case becomes stronger to the extent that she can demonstrate how “Americanized” she is. Close ties to a community are important to all of us; they give us the sense of being at home in the world, of connectedness. It is critical to brainstorm with your clients about their community ties and how to show that the close ties they have to their community would be broken if the client and her family were forced to leave the United States. When documenting community ties, the goal is to show how attached your client and her family are to the United States and therefore how extremely difficult deportation of the client would be for them. Thus, the documentation and testimony should include evidence of their hobbies, community and neighborhood activities and service, English proficiency, bonds with friends and neighbors, church participation, and membership in clubs and organizations. Many parents help out at their children’s schools. Maybe your client or her spouse is on a neighborhood soccer team or volunteers at the YMCA or Red Cross. Discuss the importance of community ties and community service several times with the client early in your relationship with him. This may be necessary to jog her memory about things, or it may give her ideas on how to get involved in some public service during the months prior to the hearing that will increase her chances of being granted relief in the exercise of discretion. Moreover, the value of community ties is not limited to proving hardship. The judge will also be more inclined to exercise discretion in favor of an applicant who is a valuable and productive 22

See Matter of Marin, 16 I&N Dec. 581 (BIA 1978); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). Id.

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member of her community, despite the mistake(s) that caused him or her to become deportable. 24 See § 10.8. F.

Economic Hardship

Economic hardship, whether to the applicant or to statutory family members, is not likely, in and of itself, going to win your case for relief. However, it is relevant and adds to the equation in determining whether “extreme hardship” to a statutory relative exists, as well as factoring into the balancing test for LPR cancellation of removal and § 212(c). The more severe the economic hardship that is likely to occur to the client and/or his or her family if the client is deported, the more relevant economic hardship becomes. Therefore, in cases where the applicant and/or a statutory relative would be disadvantaged by advanced age, poor health condition, lack of proper job training, and/or lack of education, these facts must be documented. Practitioners should also present information to the judge on economic and social conditions in the client’s native country. Factors such as high unemployment rate and poor economic development in the native country are relevant for the judge to determine if the client and/or his family members will be unable to find employment to support themselves if he the client is deported. Evidence of economic hardship may take two forms that are actually interrelated. One form has to do with the economic situation here in the United States that the applicant and/or a statutory relative will be severed from, such as the type of work, economic opportunities, and the like. For example, say that the client’s spouse has a job that he loves and that cannot be duplicated in the native country. This leads to the other form, which has to do with the economic conditions in the country of deportation. The training that a person has may be useless in the native country, or the unemployment rate so high that the person may not be able to find a job or will have to settle for a job for which he or she is overqualified. For both forms, you will need to work with the client to show why this would cause hardship. The economic conditions in the native country, especially when they are depressed, serve two purposes: (1) a certain amount of sympathy flows from such facts, and (2) they make what the person will be deprived of in the United States stand out. In extreme situations, for example, the complete inability to find work in the country of deportation may be a powerful factor in the case. A client or family member’s age and/or disability are likely to contribute to such dire prospects for employment in the home country, and should be emphasized to the adjudicator where these conditions exist.

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When economic conditions in the country of deportation are poor, explore how these conditions impact other areas of life. A bad economic situation can have negative consequences for your client and her family, such as poor health care, limited educational opportunities, little job training, inadequate public transportation, and the like. By introducing evidence about these conditions, you may be able to move away from having your arguments labeled purely economic in nature, and you can get the adjudicator to pay more attention to them.

24

See Zheng v. Holder, ___644 F.3d ___, 2011 WL 1709849, Nos. 06-75258 & 08-71663829 (9th Cir. May 6, 2011).

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The financial status and the educational level of the client and his or her family are relevant to any argument about economic hardships that will result from deportation. For example, a person with a low level of education and a low salary may have financial difficulty withstanding a deportation, because his or her lack of skills and education will diminish job prospects in the home country. On the other hand, be aware of the fact that if the client is financially well off, the government might argue that he has enough resources to cushion the financial hardship of being deported. However, someone with a good education and good resources might not be able to pursue his or her career in the home country.

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To document the economic conditions in the home country, you might consider asking for affidavits from people who have recently immigrated from or visited the area. If your client has friends or relatives who still live in the home country, he can ask them to write about the educational opportunities, the economic situation, and the availability of work, particularly the work that the client and/or his statutory family members have been trained to do in the United States. They could write about how families are coping with the employment situation (for example, if they are being forced to leave the area), and the effects of the employment situation on the availability of food, medicine, or schooling. Internet searches are great for locating information on economic, as well as political conditions, in the home country. One excellent source, for example, is the University of Minnesota’s Human Rights Library, which can be accessed in various languages. 25 The U.S. State Department’s Reports on Human Rights Practices 26 also contain useful information on both human rights violations and economic conditions in the home country, although they are often biased in favor of U.S. foreign policy goals. G.

Political Conditions Abroad

Closely related to the economic conditions which may cause hardship to a client and his family upon deportation are the political conditions in the home country. For example, say your client comes from El Salvador, Honduras, Nicaragua, Liberia, or another country in which some of its nationals can apply for Temporary Protected Status (TPS). There you can make the argument that the political and/or economic conditions in that country are severe and will contribute to the hardship to your client and his family if he is deported. If your client is from a nation at war, such as Syria, or a nation without a government, such as Somalia, political conditions, and the economic conditions they engender, are especially relevant to a claim of hardship. It is not necessary to prove that your client might be persecuted or tortured or is otherwise eligible for asylum or restriction on removal; only that the overall political conditions in the country of origin will cause him and his family significant difficulties if they are deported. If your client is from a country that does not commit widespread human rights abuses, or where there is no significant political upheaval, political conditions there may still impact your client. For example, if your client is an unmarried Mexican woman who is over forty, discrimination based on sex and age may contribute to the difficulties she would experience were she to return to Mexico. Clients who are gay, lesbian, or transgender might suffer discrimination, harassment, or Go to: http://www1.umn.edu/humanrts/ or simply do a Google Search under University of Minnesota Human Rights Library. 26 Go to: www.state.gov/j/drl/irf/rpt/index.htm.

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abuse if they return to certain countries. There are a number of reasons why political conditions could severely impact your client and his family if he were deported. You need to research those conditions, using the same resources mentioned above, to determine whether such conditions exist, and to document them to the immigration judge. Example: Hamida is from Saudi Arabia. She is an ardent feminist, and has disavowed both her family’s Muslim faith, and the strictures placed on her behavior by her parents. She eloped with Joaquin, who is Mexican-American and Catholic. Hamida’s feminist stance and marriage to a non-Muslim, in addition to her renunciation of Islam, would severely impact her if she were returned to Saudi Arabia.27 § 10.8 Equities Some forms of immigration relief require the adjudicator to balance positive equities against negative equities when deciding whether to grant a person relief, while other forms of immigration relief require the applicant to demonstrate hardship. It is important to understand the distinction between hardship and equities and not to confuse the two. Demonstrating hardship is a specific statutory requirement for certain forms of relief, which involves an evaluation of how certain family members would suffer if the applicant were removed. See § 10.7. Equities are aspects of a person’s life, such as the length of time living in the United States, employment records, criminal history, community involvement, and other positive or negative factors that the adjudicator can consider when making a discretionary determination. Showing that a person has many positive equities will not satisfy a hardship requirement, and showing hardship may not be sufficient to outweigh negative equities. For instance, the courts have found that LPR cancellation requires a balancing of positive equities against negative equities. A representative preparing a client for this type of case should not focus only on hardship per se, although that might be a part of the argument, but should instead emphasize any ties the person has to the United States and positive characteristics the person may have. Likewise, in a case requiring hardship, showing that the person is deserving and has substantial family ties in the United States will not meet the hardship standard. There is nevertheless a great deal of overlap between the factors and evidence a client would use to show hardship and to show positive equities. For instance, the fact that an applicant for a waiver requiring hardship is the primary caretaker for his ill, elderly, LPR parents might be offered as evidence that his deportation would result in extreme hardship to his qualifying relatives. That same fact—his role as primary caretaker—should also be presented to the judge as a positive equity to go towards discretion. The factors discussed in § 10.7 above can and should be presented, where applicable, in all cases even if a showing of hardship is not required.

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Example: Graciela is a native of Mexico applying for a waiver for re-adjustment. She has an eight-year-old U.S. citizen daughter, Ana, who has severe asthma that requires trips to the emergency room several times per year. Fortunately, those visits are covered by the health insurance Graciela has through her job, where she has worked for almost 11 27

Under these circumstances, Hamida could apply for asylum, but she does not need to do so if she is eligible for another form of relief; she can nevertheless use this information as a hardship and equity to show how difficult it would be for her to return to Saudi Arabia.

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years. If Graciela were deported, she would lose her health insurance and have to pay Ana’s medical costs out-of-pocket. It is also unlikely that Graciela would be able to earn as much in Mexico, and the hospital near her hometown does not have the type of equipment that Ana is treated with in the United States.

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A creative advocate will present Graciela’s situation as one in which her U.S. citizen daughter will clearly suffer economic and medical hardship if Graciela is deported, but will also highlight Graciela’s steady employment, maintenance of health insurance, payment of taxes, and careful monitoring of her daughter’s health condition as positive equities that are relevant to the adjudicator’s discretionary decision. In Matter of Marin, 28 the leading case on the balancing test employed in § 212(c), LPR cancellation of removal and § 212(h) cases, BIA held that: “The exercise of discretion in a particular case necessarily requires consideration of all the facts and circumstances involved. There must be a balancing of the social and humane considerations presented in an alien’s favor against the adverse factors evidencing his undesirability as a permanent resident.” Matter of Marin at 584. In Matter of Recinas, 29 the leading BIA case on non-LPR cancellation of removal, the BIA emphasized that in analyzing whether a person’s hardships rose to the “exceptional and extremely unusual” level, the hardships must be considered cumulatively. Similarly, in Matter of Edwards, 30 one of the key § 212(c) cases involving “unusual and outstanding equities,” the BIA looked at the respondent’s long-term permanent residence, U.S. citizen immediate and extended family members, and other factors in his favor and found that these equities cumulatively rose to the level of unusual and outstanding equities. Therefore, whether your application for relief depends on the balancing test or the hardship to a statutory relative, the immigration judge and the BIA must weigh the hardships and “social and humane considerations” in favor of your client cumulatively. In other words, the immigration judge should not consider each hardship or equity separately from the others, but should view them as part of a whole, which together form a picture of your client’s and his family’s life and how they would be impacted by the client’s deportation. Some judges will attempt to isolate the positive factors in the client’s case, and give each little weight. This is an incorrect analysis, and if you have an immigration judge that does this you must point out that this is error, and why. Immigration judges must view the totality of the circumstances surrounding an individual’s life. In the balancing test, the totality of the client’s positive factors, including hardships, must be balanced against the totality of the negative factors present in the case. Even though judges have broad discretion in whether or not to grant applications for relief, they must not act arbitrarily, but must weigh the pros and cons of each case individually. Therefore, it is critical for you not only to document each equity and hardship factor in your case, but also summarize the cumulative effect they have on each other, and explain why these factors, taken 16 I&N Dec. 581 (BIA 1978); see Chapter 5. 23 I&N Dec. 467 (BIA 2002). 30 20 I&N Dec. 191 (BIA 1990). 29

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together, outweigh the negative factors in the case. Usually, there will be one major negative factor, which will be the offense that rendered the client removable. Sometimes there are more, such as a client’s history of unemployment or arrests, or failure to take responsibility for his actions. Your job is to show how these negative factors are outweighed by the positive ones, which include the potential hardships that would be brought about by deportation. § 10.9 Proving Rehabilitation: The Three Story Approach31 Many permanent resident clients end up in removal proceedings because of a criminal conviction. Although the BIA has repeatedly said that rehabilitation and remorse are not essential for a grant of discretionary relief, and that cases must be evaluated on a case by case basis, 32 as a practical matter your client is unlikely to be granted relief without a showing of rehabilitation unless the deportable offense is an extremely minor one and the client’s equities are substantial. Moreover, a lack of remorse or rehabilitation is a substantial negative factor that can ruin your client’s chances of a favorable exercise of discretion, even where substantial equities have been shown. 33 Therefore, a showing of rehabilitation and remorse is critical; in fact, it is probably the single most important element you need to prove to obtain relief. As we have discussed, in the balancing test for § 240A(a)(1) LPR cancellation of removal, § 212(c), and § 212(h) relief, the judge must weigh all positive factors against the negative factors in making the decision to grant or deny relief. Nevertheless, since judges have broad discretion in these cases, and the courts of appeal have no jurisdiction over discretionary decisions, it is incumbent upon you and your client to demonstrate remorse and/or rehabilitation in order to impress upon the judge that your client deserves relief in the exercise of discretion. To show rehabilitation the client must demonstrate that she has changed from the kind of person she was when she committed the crime. She must convince the judge that she will not commit any more crimes. One way to explain this change to a judge is the “three story approach.” In this approach the client and practitioner present three stories as follows: 1) a story showing the client’s past life when she committed the crime; 2) a story expressing the client’s remorse for her wrong doings; and 3) a story providing a positive and different picture of the client’s present life. The purpose of the “three story approach” is to show that the circumstances that caused the client to become involved in crime no longer shape her life. Only your client knows what these factors are. You can suggest factors which have been present in other cases. Ultimately, however, it is your client’s story that matters. Listen to your client, her family and friends to develop the three stories. Don’t be concerned if parts of the stories overlap.

31

An in depth discussion on proving rehabilitation and remorse is also found in Chapter 4 § 4.6(B). See Matter of Arreguin, 21 I&N Dec. 38, 40 (BIA 1995); Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Edwards, 20 I&N Dec. 191, 196 (BIA 1990); Matter of C-V-T-, 22 I&N Dec. 7, 12 (BIA 1988). 33 Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

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Story 1: The Applicant’s Past Life The first story presents the reasons why the client became involved in crime. For example, for many people the pressure of the first years in a new culture makes life very difficult. People may make friends with “undesirable types.” The isolation and alienation of life in urban America may contribute to joining a gang or using drugs. Many recent immigrants face serious economic pressure. A person who in less stressful circumstances would never consider the option, may see using drugs or stealing as a way out.

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For long-term permanent residents, there may be other factors that led to the client’s criminal history. Perhaps he was abused as a child, or perhaps he grew up with immigrant parents who were so busy working that they had little time to pay attention to him as he grew up, and therefore he turned to a gang for companionship and support. You and your client should expose these negative factors. It is a good idea to stress that these factors no longer exist. Although you must be honest, try not to tell the story in such a negative way that the judge will think the client can never be rehabilitated or that all immigrants have these problems. Story 2: Remorse for Past Mistakes In the second story, the client shows remorse for past wrongs. Recognizing mistakes and making a commitment to a new and changed life are good evidence of the client’s rehabilitation. Often the client may want to admit to the immigration judge that she committed the crime and is sorry for having done it. She must understand that she was wrong and made a mistake. WARNING: You and your client should think hard before admitting to a crime that she did not commit, or a crime for which she has not been arrested or convicted. Although it does not occur often, things that your client says or admits to in a deportation hearing could be used in a future criminal case. When admitting to the immigration judge that they were wrong, clients often talk about how going to jail or prison or simply being on probation changed their lives. Clients say that whatever they gained from committing a crime is not worth losing personal freedom and contact with loved ones. They say jail/prison gave them time to think about their actions and to recognize the harm they have caused themselves and others. When a judge hears these things, it helps convince her to grant the waiver. Story 3: The Client’s New Life In the third story, the client shows new influences in his life and what he has done to rehabilitate and change himself. It is important to show any concrete steps taken towards rehabilitation, especially in cases where there was a history of alcohol or drug abuse or violence. This can be shown with evidence of participation in a rehabilitation program and/or completion of such a program, individual counseling or group therapy classes, acceptance of responsibility and achievements while in criminal custody, such as voluntarily pursing GED studies, having no prison infractions, and being involved in church activities.

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Stable family life, relationships with new friends who have not been in trouble with the police, and steady employment are other important factors to present. Parts of a client’s life that are

boring or unimportant can be presented to the judge as positive factors. For example, spending time at home, eating meals with the family or watching television demonstrate that the client is not out on the street. Spending time with family and making new friends shows that the client has developed new and positive attitudes. Family members and friends can testify to the changes they have seen in the person. Again, proving this while the client is in detention is challenging but not impossible. 34 The client can present hopes and plans for her future in the United States, what he has done to begin achieving them and how and why she will not go back to old ways. These goals show that the client has a new direction in life. Your client also should state how important it is to her to remain in the United States, how she much she cares about this country and how she identifies herself as an American, in addition to the hardship she and her family would suffer if she were deported. Example: Francois, a lawful permanent resident from France, was convicted for grand theft and possession of cocaine. He was sentenced to six months in jail for the theft and three months for the drug possession charge. Now he is applying for LPR cancellation of removal under § 240A(a)(1). You explain the requirements for a waiver to Francois and his family. With the law in mind Francois, his family and you decide to tell his three stories this way: Story 1: Francois and his family started having financial problems three years ago when his wife Giselle became disabled. Francois began to steal small items for the house, and then began to steal more expensive articles to sell to make money. He became depressed and began to use cocaine and began not showing up for work. He was arrested when he tried to steal an expensive leather jacket. Cocaine was found on him at the arrest. Story 2: After spending several months in jail and attending drug-counseling programs, Francois now admits he had a drug problem. He took lots of time to think about his life when he was in jail. He admits that he jeopardized the well-being of himself and his family and says he will never do it again. Giselle and his son visited him regularly in jail. While he loved seeing them, he hated putting them through this and swears he would never do such a thing again. Story 3: Francois’ life has changed. He and Giselle have communicated with his employer, who has decided to offer him his job back. The family finances are under control. He wants to spend lots of time with his son. Before he went to jail, even when he was having drug problems, he always kept a good relationship with his son. They do homework together, play ball at the park, and watch television. Francois and his son are absolutely devoted to each other. Francois will not associate with his drug user friends and wants to spend most of his time at work or at home with his family.

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People who knew Francois before his troubles began will submit affidavits, one of them may testify. These people will say that Francois ignored them when he ran with his drug-

34

See Zheng v. Holder, ___ F.3d ___, 2011 WL 1709849, Nos. 06-75258 & 08-71663 (9th Cir. May 6, 2011).

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using friends. These old friends now say that Francois has called them from jail, and he is a changed man. He has rekindled these old friendships. Francois also can discuss his goals. He wants to continue drug therapy and plans to continue to go to Narcotics Anonymous once a week for many years to come. His family wants to save money to buy a house.

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Use declarations from your client and client’s friends and family to show the judge that the client has genuinely changed, in addition to psychological reports, and/or declarations from counselors, parole officers, or the prison warden, or even the criminal defense attorney where these individuals have witnessed a change in your client’s attitude since the arrest and conviction. Be creative about showing rehabilitation and remorse. Ask your client a lot of questions. You may be pleasantly surprised at what you learn, and can therefore use, to help your client avoid the devastation of deportation. In many cases, clients with criminal convictions will not be released on bond and will have to prepare their cases from jail. This, of course, makes it much more difficult for the person to demonstrate the “new life,” as well as to collect evidence and get support from friends. It is crucial in such cases that the applicant, his family, and any support network that your client has (except the old “bad” friends) take responsibility for the case to overcome this challenge. It is also crucial for you and your client to brainstorm about how he can show his remorse and rehabilitation even if he is still in detention. Are there any programs at the jail? Is there a library he or she could use to obtain reading materials about the problems he faced and how to rehabilitate himself, e.g., Alcoholics or Narcotics Anonymous book? Does he have a job in the jail, or could he apply for one? (Or did he, while in state custody?) Is he participating in any church or religious activities? Is he helping other immigrant inmates with language problems or access to materials that may help their cases? Has he expressed regret and remorse for his past actions to his family and friends? Has he been on good behavior while incarcerated? Does he have job prospects if he gets released? The “three story approach” is one of the clearest and most effective ways to demonstrate to the judge that the client has been rehabilitated. It is also a very effective way to explain to your client what you and he need to show the immigration judge in order to have a reasonable chance at being granted relief.

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APPENDIX 10-A DECLARATION OF JS (A# 000-000-000) IN SUPPORT OF APPLICATION FOR CANCELLATION OF REMOVAL

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I, J S, declare: 1. I submit this declaration in support of my application for Cancellation of Removal. I am 39 years old and have spent almost my entire life in the United States of America. My parents brought me here when I was only three months old. On July 5, 1981, I became a Lawful Permanent Resident of the United States. Since that date, I have resided in this country. Everything I have worked to create and everything that I love in life, including my three United States citizen children and my United States citizen wife, is here. While I have made mistakes in the past, I am proud to say that I have been clean of drugs and alcohol for seven years and three months. During this time I have been the most devoted father and husband that I can be. Please recognize the extreme hardship that I, my wife, children and extended family, including my Lawful Permanent Resident parents, would suffer if I am deported from the United States. 2. Since I was taken into the custody of Immigration Customs Enforcement, in June of 2010, my family’s life has been turned upside down. My children are confused by our separation and my wife, M, has struggled to take care of herself and our children as a single mom. M has undergone immense stress due to financial hardship and our separation. Just when we thought the situation could not get any more stressful, M had to undergo emergency surgery to remove a mass of tissue from her breast. Our family wants nothing more than to be reunited so that we can continue to care for and support one another. 3. I have been married to my wife, M, for almost twenty years. We were high school sweethearts and married in 1990, shortly after high school graduation. M has stayed by my side through thick and thin. We have two healthy, growing sons, ages ten and eleven, and do our best to provide them with a loving, caring home. 4. Several years after I married M I became involved with the wrong group of friends. During that time I made a series of poor decisions which have now resulted in my being placed in removal proceedings. In short, I developed a dependence on drug and alcohol use that got out of control. Methamphetamine is a horrible and addictive substance and I believe that I became addicted the first time I used it. Over time I began to use the drug more and more until the addiction took control of my life. Methamphetamine use affected every part of my life from my relationship with my wife to my ability to keep a job. I lost sight of my goals and what was important to me. My judgment became skewed to the point where I barely knew right from wrong. 5. In 1995 I was arrested and charged with violations of California Penal Code Sections 182(a)(4) and 488. This arrest stemmed from an incident in which a co-worker asked me to help him carry boxes from our place of employment to his car. I later pled guilty to one count of petty theft.

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6. The more I became addicted to methamphetamine the more my life went wrong. I began to have more problems with the law. In 2000 I made the terrible decision to drive my car while I

was high. On my way home I crashed the car. I was arrested for driving under the influence and failed a drug test. I pled guilty to a violation of California Vehicle Code 23103, Reckless Driving, and was placed on probation. As part of my sentence, the court ordered me to attend Narcotics Anonymous and continue being tested for drug use. Even though everyone around me was beginning to see that I had a real problem, I was still not willing to accept it myself. I continued to use. Several weeks later I was found to be in violation of probation for failing a court-ordered drug test. 7. Sometime in 2001 my parents and wife sat me down for an intervention. They expressed how concerned they were about me and told me that if I continued down this path I was going to lose my whole family. They asked me to enter a one month in-patient drug rehabilitation program. I entered the program but left after only one week. I was not yet ready to accept help for my addiction. 8. In February 2002 I was pulled over for driving under the influence. When police searched the car they found a quantity of drugs in my possession. My original drug charge from 2000 was re-instated and I was charged with a new violation of Health and Safety Code 11364. Before the case concluded I failed yet another drug test for my third and final probation violation. The Superior Court Judge could see that leniency was not having an effect and he finally sentenced me to three years and eight months in state prison. Looking back I am sad about how much pain I caused my family. I can see that everyone kept giving me second and third chances but because of my addiction, I neglected and ignored them. I am grateful that the judge finally told me that enough was enough, and sent me to prison. Ultimately it was my time in California State Prison that caused a profound change within me. 9. In 2002 my problem with drugs and alcohol abuse culminated when I was arrested, convicted and ordered to spend time in a California State Prison. I served almost a full year in at Norco State Prison complex from July 2003 until June 2004. Although this separation from my family was extremely difficult for us, spending time in prison caused me to reflect deeply on my path in life. 10. As part of my sentence the Superior Court Judge ordered me to participate in a rehabilitation program while in prison. I enrolled in a program called FOCUS. There were ten men in my group and we met every day from 8 a.m. until 11 a.m. During the meetings we talked about the reasons why we had turned to drug or alcohol use. Then we discussed how to face the challenges in our lives without substance abuse. After the morning meetings I would spend the rest of the day thinking about what we had discussed and reflecting on all I had done wrong, and how I could change.

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11. The first thirty days of FOCUS were awful for me because I was filled with shame and felt unworthy of my family. When I was abusing alcohol and drugs I never worried about the pain I was causing my family. Now that I was sober, I had to face the truth about the pain that I caused my wife, siblings, parents and children. After the first month passed I began to think less about the past and more about the future. I began to realize what a wonderful father and husband I could be.

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12. I started going to church as often as I could, which in Norco, was four times per week. I began to pray to God every day for the strength to get my life back on track. I called my wife every day and we would pray together, for me to find the strength to change my life.

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13. In addition to FOCUS I enrolled in other programs offered at Norco including a parenting class and an anger management course. At first I did not think I needed these classes, but sure enough, once I attended I realized how much I had to learn. These classes taught me how to be a better husband and father. I learned the skill of communication; I learned that a little can go a long way when it comes to family. I learned that the most important part of being a good husband and dad is simply spending time with your family. These things may sound simple but to me, they were a revelation. I could not wait to get back home to my family! 14. By the time I was released from prison, in June of 2004, I had been sober for eleven months. I was released into an in-patient rehabilitation program called West Care. I continued to learn and grow. I was at West Care for three months, during which I attended rehabilitation classes all day every day. 15. Thanks to God, my family and rehabilitation programs, I have now rid myself of the desire to use drugs and alcohol. I have been one hundred percent sober for seven years and four months. While I have made plenty of mistakes, I feel as though my life has come full circle during the past seven years. Since becoming sober I have done everything within my power to show my wife and children how much I love them and to make sure that they are happy and healthy. 16. I can proudly say that since my release from prison I have been an upstanding member of society and my priorities are straight and correct. I have not relapsed once since 2003. Being sober is such an integral part of my life now that even my children know, and tell people when we go to parties or family events, “Dad does not drink.” My only activities are working to support my family, spending time with my family and strengthening my relationship with God. The chance that I will relapse into my old ways is next to zero. 17. When I was done with my rehabilitation programs I got to work making up for lost time with my wife and children. My boys, B and S, are ages ten and eleven. I am so proud of those boys. They are excellent students and good kids all around. I spend as much time with them as I can, going to the park or to the movies. I pick them up from school and get them home to make sure they get home to work on their homework. After school I prepare their food while we wait for M to come home. I am there for them every moment of every day. On the weekends we go to church together as a family and attend the boys sporting events. Much of our family lives nearby in M, CA so we are constantly invited to family events. Otherwise I am doing yard work with the boys at home or playing sports in the yard.

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18. I am so thankful for my new relationship with my sons and I can tell that they are enjoying it too. They always want me to be around. Every time the boys have a field trip they beg me to take time off to go with them. I always try to get those days off because I can see how happy it makes my sons to have me there with them. Last year we went to the Zoo and the Planetarium together. I have also volunteered at the kids’ school many times, mostly during fundraisers. I have counted laps at the annual jog-a-thon race, in which students run laps around the track to raise money for the school. I want to be there for my kids in this way

because it is the right thing to do. My parents were not able to support me in activities like this when I was young and I think it is important for my boys to feel my presence there with them at school, or wherever they are, to know that I am looking after them. I think it will help them make the right decisions. 19. I am very concerned about the future of my sons if I am not permitted to stay with them here in the United States. Since I have been away M has reported that they are more sensitive and missing me a lot. More than anything else I want them to feel my presence in their lives and know how much I love them. I want them to continue to have me as a role model, teaching them right from wrong, as they grow older and become men. I want to see my sons graduate from high school and go to college. They are both so smart and have a lot of potential. I know that I can be a role model for them as they enter their teen years, and that I can teach them from my own life experience about avoiding drugs and alcohol. I am scared that without me their lives might go down a different path. I know that B and S are confused about why I am not at home so I want to get back to them as soon as possible. They deserve to have the love and support of both of their parents. 20. Finally, I am very concerned about the wellbeing of my wife, M, should I be deported from the United States. M has been under a huge amount of stress since I was taken into ICE custody in June. She has stayed by my side during my worst moments and I want to show her that I will be there for her and support her too. She is a wonderful wife and mother and she deserves only the best. She is a patient, forgiving woman, and I am grateful for her support of me when I did not always deserve it. 21. The financial strain on M since our separation has been immense. She has been forced to borrow almost $5,000 from family members during the past four months, just to keep running our household. Before I was taken into custody I was earning approximately $3,500 per month. This was enough to support the family and save a little at the end of the month. My friend and former boss, AC, told me just last week that when I return home I have a job offer waiting for me. I will pick up right where I left off. Since I have been away the family has had to live off of M’s salary of approximately $1,200 per month. Between our mortgage, bills, transportation and food, it is not enough. We are very fortunate to have the financial support of our family but my family cannot depend on them forever.

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22. M is extremely worried about our financial situation. Every time we talk she always asks me what we are going to do. She tells me that bills are going unpaid and that she is up all night worrying about our finances. I try my best to ease her mind, saying that everything will be fine and that I will be home soon to help. We had saved a little bit of money for our boys’ college education but before long that money will be gone. M will have to start selling some of our belongings just to make ends meet. If I am deported I will no longer be able to contribute financially to the family and M will likely have to sell our house. M will likely be supporting me in Mexico. I do not have any job prospects available there and have no idea what I would do to support myself if I am forced to return there. 23. In addition to the bills piling up, M recently received a notice from her employer, the Unified School District, that she is being laid off in December. She has been offered a position that would allow her to work 17.5 hours per week without benefits. In contrast to her current full

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time position, the new position would not offer medical coverage. Both of our sons are currently covered under M’s health insurance plan through work. 24. Adding to all of M’s stress, on a recent doctor’s visit, she was found to have a lump in one of her breasts. On October 24, 2010 she underwent emergency surgery to have it removed and tested. The cells were found to be precancerous, meaning that if they were not removed they would develop into cancerous cells in the future. I feel devastated that I could not be there for M in this time of need. She was scared and upset and needed my support. M has needed me with her during these weeks, but all I have been able to do from here is pray and keep myself if in good spirits so that when I talk to her, I can encourage her to stay strong.

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25. My family ties extend far beyond my immediate family. My parents, siblings, cousins, aunts and uncles all live in M, California. I talk to my parents every day on the phone and routinely stop by their house, taking care of whatever odd job needs tending to. I wash their car, pick up medicine from the store and tend to their yard. I also help my mother-in-law, who is an elderly widow that lives alone. I give her rides to wherever she needs to go, cut her grass and stop by to make sure her house is in order. We are a true community. 26. I respectfully request my application for Cancellation of Removal be approved so I may continue taking care of my family, as they have always taken care of me.

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APPENDIX 10-B LIST OF HARDSHIP FACTORS 1. 1.a

1.d

Family Possibility of a U.S. Citizen Child Suffering Hardship by Accompanying Deported Alien Parent(s) Possible Separation of the Family Possibility of Separation from a “Family” Even Though Alien is not Related to the Family Family Ties in the U.S. and Abroad

2. 2.a 2.b

Adjustment Difficulty of Adjustment to a New Country Psychological Hardship Created by Deportation

3. 3.a 3.b 3.c

Community Ties Adverse Effect Where Alien has Integrated into U.S. Society Whether of Special Service to the U.S. or Community Position in the Community

4. 4.a 4.b 4.c 4.d

Economics Inability to Provide for Self Inability to Provide for Family Members Residing Abroad Inability to Provide for Family Members Residing in the U.S. Financial Status of the Alien

5. 5.a 5.b 5.c

Residence Length of Residence in the U.S. Nature of Residence in the U.S. Residence Begun at Early Age

6. 6.a 6.b 6.c 6.d 6.e 6.f 6.g 6.h

Others The Advanced Age of an Applicant or Her Relatives The Heath of an Applicant or Her Relatives Economic Conditions in the Country to which the Alien will be Deported Decreased Educational Opportunity in the Country to which the Alien will be Deported Decreased Access to Health Care in the Country to which the Alien will be Deported Decreased Employoment Opportunities in the Country to which the Alien will be Deported Sexual Orientation Fear of Persecution and Political Condition

7. 7.a

Cumulative Effects Of All Facts Consider All Facts as a Whole

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1.b 1.c

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