It has been a busy week at the BIA and at the Ninth Circuit. This week
we have found out that a wave through admission counts for being admitted
in any status for cancellation of removal and that a driving under the
influence conviction (or three) can result in no bond being granted for
immigration proceedings. In one of the most odious decisions, I have ever
read, accompanied children are not entitled to court appointed government
counsel when they are in removal proceedings. They can be represented
by their mothers. Remember, not everyone’s mother is an immigration
attorney. Armed bank robbery is a crime of violence, but car-jacking is
not a crime of violence, and second-degree robbery is not a violent felony.
And, the FBI can withhold a lot of documents on FOIA requests.
Board of Immigration Appeals Decisions
A Wave Through Admission Counts for Being Admitted in Any Status for Purposes
of INA § 240A(a) But Only in the Ninth and in the Fifth – AKA
Never Let Your Clients Move to Georgia
The BIA held that a wave through admission constitutes an admission "in
any status" for cancellation of removal for lawful permanent residents
but only in the Ninth and in the Fifth Circuits. To qualify for cancellation
of removal for permanent residents, the noncitizen must show that 1) the
s/he has been an LPR for not less than 5 years; 2) s/he has resided continuously
in the United States for 7 years after having been admitted in any status;
and 3) s/he has not been convicted of an aggravated felony. In this case
the noncitizen had entered the United States in October 1991. She had
been waved through the port of entry. In April 2003, she adjusted her
status, and, in January 2010, she was served with a Notice to Appear for
alien smuggling. The question was whether the 1991 wave through admission
qualifies as being admitted in "any status." In a rather confusing
decision, the BIA held that the wave through admission qualifies as being
admitted in "any status" in both the Ninth Circuit and the Fifth
Circuit because those Courts of Appeals have already adjudicated this
issue and found that it qualified as an admission in any status. But,
the BIA held, "In all other circuits that have yet to address the
issue, we hold that aliens must show that the possessed some form of lawful
immigration status at the time of admission to establish that they were
"admitted in any status" under Section 240A(a)(2) of the Act.
The BIA engaged in a very weird case analysis. First, it noted that both
the Ninth and the Fifth Circuit found that the underlying statute 240A(a)(2)
was not ambiguous and was not subject to
Chevron deference. [Remember under
Chevron the federal courts must defer to administrative agencies’ interpretations
of federal law where the law may be ambiguous, and the agency’s
position seems reasonable]. The BIA then went on to find that the statute
was ambiguous and that in other jurisdictions the BIA’s interpretation
should be entitled to
Chevron deference. That said, I think that practitioners outside of the Ninth
and the Fifth should continue to argue that Section 240A(a)(2) is not
ambiguous and that this particular BIA decision does not apply.
Matter of Castillo Angulo, 27 I.&N. Dec. 194 (BIA 2018).
Family Ties, Mitigation, and Extenuating Circumstances Generally Do Not
Mitigate a Noncitizen’s Dangerousness in Bond Proceedings –
Don’t Drink and Drive; Especially if You are not a Citizen
Bad news for our bond cases. "Dangerous aliens are properly detained
Matter of Urena, 25 I.&N. Dec. 140, 141 (BIA 2009). If you have a client who has a
conviction for driving under the influence, make sure to submit tons of
evidence of rehabilitation – otherwise the Immigration Court will
likely not issue a bond. The BIA clarified that family ties, and mitigating,
and extenuating circumstances generally do not mitigate the issue of a
noncitizen’s dangerousness in bond proceedings. In this case, the
noncitizen is a visa overstay from Lithuania. He has been here since 2000.
He has a USC daughter and is married to an LPR. He had three convictions
for driving under the influence (DUI) between 2006 and 2007 and was arrested
for a DUI in 2017. The IJ originally set bond at $25,000 but ICE appealed
the issuance of any bond and the BIA agreed. The noncitizen had a lot
of close ties to the United States, but the BIA found that "[c]onsiderations
such as a fixed address, a residence of long duration, a history of employment,
and other community ties may similarly impact an alien’s risk of
flight. However, the respondent was not found to be a flight risk. The
issue in this case is whether the respondent is a danger to the community
and family and community ties generally do not mitigate an alien’s
Matter of Siniauskas, 27 I.&N. Dec. 207, 209-210 (BIA 2018). The most important sentence
in this decision is this: "an Immigration Judge should only set a
monetary bond if the respondent first establishes that he is not a danger
to the community."
Matter of Siniauskas, 27 I.&N. Dec. at 210.
Ninth Circuit Decisions
No Right to Court Appointed Government Funded Counsel for Accompanied Juvenile
Respondents and The IJ Is Not Required to Inform Respondents About SIJS
Eligibility Absent a State Court Order Finding that the Child is a Ward
of the State
"Mom, if a kid had cancer, you would not expect that kid’s mother
to operate on him, would you?" Those words came out of the mouth
of my 16-year-old son at dinner when I was ranting about this Ninth Circuit
decision that came down this week. (Yes, my family often discusses recent
Ninth Circuit decisions at dinner table – along with sports trivia).
As you read about this case, think about a lay person performing cancer
surgery on their child and how ludicrous that situation would be –
then compare it to what actually happened here. It’s not all that
different. The Ninth Circuit, in an odious 52-page decision, found that
children in removal proceedings are not entitled to government-funded
court appointed counsel. And, that the Immigration Judge was not required
to inform the child and his mother of the child’s apparent eligibility
for Special Immigrant Juvenile Status (SIJS), because, at the time of
the hearing, the child did not have a state court order that could have
made him apparently eligible for SIJS. These are the important two holdings
of the case. If you want to read more about it, I have gone into some
of the striking details of the case.
Here are the facts. Thirteen-year-old C.J. and his mother Maria fled Honduras
after C.J. was approached by the Maras and asked to join the gang. C.J.
testified that the Maras approached him three times and during the third
confrontation, one of the gang members put a gun to C.J.’s head
and gave him one day to decide to join the gang. If he did not join the
gang then C.J., his mother, his aunt, and his uncles would all be killed
by the gang. C.J. and his mother did what any normal person would do -
they fled. C.J. and his mother came to the United States and applied for
asylum. They were placed in removal proceedings and the case was continued
three times to allow the mother to obtain counsel for her son. When the
mother went to court and explained that she could not afford counsel,
"the IJ told her that she would proceed with the case and that Maria
could "represent your son here today." Maria said that she understood."
C.J.L.G. v. Sessions, No. 16-73801, slip op at 9 (9th Cir., Jan. 29, 2018). Now, here is the
part where you think about what my son said, would you have a mother operate
on her child who had cancer? Of course not! It’s inhumane. It’s
ludicrous. It’s beyond ridiculous. So, why would you have a mother
represent her child in a complex asylum proceeding? I have been practicing
immigration law for years and I know asylum law quite well. Nonetheless,
it would take me a few hours of research to figure out the asylum claim
for this child. I know it is there, I just have to figure out how to present
it to the court so that the court can grant this child asylum and save
his life. Needless to say, the child’s mother was unable to competently
represent her child in court, just like I would not be able to competently
perform cancer surgery on anyone’s child – let alone my own.
Not surprisingly, the IJ, the BIA and the Ninth Circuit all agreed that
Maria was not able to articulate a proper legal theory to grant her child
asylum. She could not establish the nexus between the persecution and
the protected ground for asylum. C.J. and Maria got a lot of expert representation
at the Ninth including the ACLU, the Northwest Immigrant Rights Project,
the National Lawyers Guild, and the American Immigration Counsel, plus,
a few attorneys from large firms, but it was too late. The Ninth Circuit
did an extensive review of whether C.J. was denied his right to due process
by going through the test set forth by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319 (1976). Under
Mathews the courts must determine what process is due by balancing 1) the private
interest at stake, 2) the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional
safeguards, and 3) the government’s interest, including the burdens
of any additional process.
C.J.L.G. slip op at 22. The Ninth found that CJ had a private interest at stake
because his liberty and "indeed, he alleges his very life –
may be at risk."
C.J.L.G. slip op at 25. However, the Ninth found that the risk of erroneous deprivation
of his rights and the government’s interests of any additional process
outweighed C.J.’s interest. In what might be one of the most odious
and stomach churning passages ever written the Ninth Circuit held:
Mandating free court-appointed counsel could further strain an already
overextended immigration system. IJs would be tasked with locating and
appointing counsel, which takes time. And government attorneys would need
to expend additional resources communicating with opposing counsel, filing
responses to motions, and preparing what would likely be a longer administrative
record – all of which come at considerable expense.
C.J.L.G., slip op. at 40. Right, so let’s send children to their deaths because
we don’t want to burden government attorneys with communicating
with opposing counsel. Then, in an incredibly nonsensical aside the Ninth
The government also warns of potential unintended consequences from such
a mandate: juveniles that could afford attorneys would opt for government-funded
counsel instead, and organizations offering
pro bono legal services would shift scarce resources elsewhere.
C.J.L.G. slip op. at 39. So, going back to the childhood cancer analogy, we should
not have CHIP or emergency MediCare for children with cancer because then
St. Jude’s Hospital which provides cancer treatment free of charge
for children would shift their resources elsewhere? And, because children
with means would not seek the best treatment through their insurance plans
but instead would rely on MediCare or CHIP? WHAT????
The Ninth then goes on to justify its horrific decision under the separation
of powers doctrine. Yes, you read that right – separation of powers.
More specifically, the Ninth found that by requiring the IJs to fulfill
Congress’s direction yet demanding no more, they are acting consonant
with rather than beyond the scope of Congress’s prescribed policy
in an area over which it exercises plenary control. It also satisfies
the judiciary’s independent duty to say what the law is by articulating
the scope and contours of Congress’s full and fair hearing guarantee.
And, third, the court is checking any violations of individual liberty
where an IJ fails to provide the amount of process guaranteed by Congress.
C.J.L.G. slip op. at 42-43.
Finally, the Court denied C.J.’s claim for SIJS status because he
did not have a state court order deeming him to be a dependent of the
juvenile court and found that the IJ had no duty to inform Maria and C.J.
about SIJS status absent such an order. Then they denied C.J.’s
withholding claim and CAT claim because his mother was not able to articulate
a judicial theory for CAT or withholding.
There is a lot more to this decision. But, the take away is that children
have no right to court appointed government attorneys in removal proceedings.
However, there might be a glimmer of hope for unaccompanied minors. The
one-page concurrence holds that while the Due Process Clause does not
mandate government-funded counsel for an accompanied minor, it might mandate
counsel for unaccompanied minors.
C.J.L.G. slip op. at 53-54 (Owens, CJ, concurring). If you want to read the case
I recommend having a bottle of wine or scotch on hand for when you are
C.J.LG. v. Sessions, No. 16-73801 (9th Cir. Jan. 29, 2018).
A California Conviction for Carjacking is not an Aggravated Felony Crime
And now, in the on-going saga of what constitutes an aggravated felony
crime of violence thanks to Jayashri and her law students at Stanford,
we now know that carjacking under Cal. Penal Code § 215(a) is not
a crime of violence – no matter what the prior law held. This case
is rather amazing, because there is a 2010 Ninth Circuit decision,
Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) "which squarely held that "a
conviction for carjacking under California Penal Code § 215 is categorically
a ‘crime of violence’ under 8 U.S.C. § 1101(a)(43)(F).
Solorio-Ruiz v. Sessions, No. 16-73085 slip op. at 5 (9th Cir. Jan. 29, 2018). The Ninth Circuit
found that the Supreme Court in
Johnson v. United States, 559 U.S. 133 (2010) overruled
Johnson the Supreme Court held that the physical force that a crime of violence
entails must be violent force – force that is capable of causing
physical pain or injury to another person. The Ninth found that to decide
whether California carjacking constitutes a crime of violence under
Johnson "we must consider whether
every violation of the statute
necessarily involves violent force.
Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)."
Solorio-Ruiz, slip op. at 7. The Court noted that the level of force required was only
force in excess of that required to seize the vehicle, however slight
that may be.
Solorio-Ruiz, slip op. at 8. So, the moral of this story, is for every case where the
client is being charged with an aggravated felony crime of violence argue
that the amount of force required for a conviction under California law
is not violent force. But, before you get too excited, the Ninth Circuit
remanded the case to the BIA to determine whether California carjacking
is an aggravated felony theft offense.
Solorio-Ruiz v. Sessions, No. 16-73085 (9th Cir. Jan. 29, 2018).
Armed Bank Robbery is a Crime of Violence
However, just because we can never get enough of figuring out what constitutes
a crime of violence, the Ninth Circuit came down with one more crime of
violence decision and one more violent felony decision in a non-immigration
context this week. First, a conviction for armed bank robbery under federal
law is a crime of violence. In a well-argued case, the defendants said
that the federal bank robbery statute was not a crime of violence because
it can be committed by intimidation. The Ninth rejected this argument
because even in its least violent form, it requires an implicit threat
to use violent force. The defendants next argued that bank robbery by
intimidation does not meet the
mens rea for a crime of violence. But, the Ninth Circuit found that the elements
of the offense entail the knowing use, attempted use, or threatened use
of violent physical force. Finally, the defendants argued that bank robbery
is an indivisible offense with three alternative means of commission:
1) by force or violence; 2) by intimidation; or 3) by extortion. They
argued that the least violent form of the offense, bank robbery by extortion
does not qualify as a crime of violence under the Supreme Court’s
Moncrieffe v. Holder, 569 U.S. 184, 190-191 (2013). I love this argument, but the Ninth Circuit
did not. The Ninth Circuit found that the statute was divisible with respect
to these offenses and that the defendants were convicted of bank robbery by force.
United States v. Kalani, No. 16-15357 (9th Cir. Feb. 1, 2018).
Second Degree Robbery under California Law is Not a Violent Felony
A violent felony is similar in theory to a crime of violence. Under the
Armed Career Criminal Act (ACCA) which imposes sentencing enhancements
for defendants convicted of violent felonies, the Ninth Circuit held that
second degree robbery under California law is not a violent felony. We
can use this case by analogizing it to a crime of violence. The ACCA defines
a "violent felony" as any crime with a term of imprisonment
exceeding one year that "(i) has as an element the use, attempted
use, or threatened use of physical force against the person of another;
or (ii) is burglary, arson, or extortion, or involves use of explosives;
or (iii) otherwise involves conduct that presents a serious potential
risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
These three clauses are known as the "force clause," the "enumerated
clause," and the "residual clause." Some of you might remember
that in one of Justice Scalia’s last decisions, he held that the
residual clause was unconstitutionally vague.
Johnson v. United States, 135 S.Ct. 2551 (2015). The issue of whether the same clause in the INA
is unconstitutionally vague, is before the Supreme Court and we are awaiting
a decision. The case is
Dimaya v. Sessions. Anyhow, the issue in this case is whether second degree burglary is a
violent felony under the force clause. The statute at issue prohibits
"the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished
by means of force or fear." Cal. Penal Code § 211. The Ninth
held that the statute is indivisible and is not a violent felony because
it can be committed where the force is only negligently used. So, if you
have a client with a PC § 211 conviction, you can argue it is not
a crime of violence using this same logic.
United States v. Walton, No. 15-50358 (9th Cir. Feb. 1, 2018).
The ACLU, the Asian Law Caucus, and the San Francisco Bay Guardian submitted
FOIA requests to the FBI for disclosure of documents and data about surveillance
and infiltration regarding the Muslim community. Shockingly, the FBI did
not comply with the FOIA request and the ACLU, et al filed a law suit
against them. The FBI then released 50,000 full or redacted pages and
withheld 47,794 pages under various FOIA exemptions. Not surprisingly
the parties filed cross-motions for summary judgement on whether the FBI
could withhold the documents. The Ninth Circuit found a law enforcement
agency only has to establish a rational nexus between the withheld documents
and its authorized law enforcement activities. Once the agency makes that
showing, the district court can then determine whether disclosure would
cause any specific harm. The Ninth Circuit limited this decision to the
FBI, "an agency with a clear law enforcement mandate." They
express no opinion about "mixed" agencies with both administrative
and law enforcement functions.
ACLU of N. Cal. v. FBI, No. 16-15178 (9th Cir., Feb. 1, 2018).