WEEKLY UPDATES 02.16.2018
No decisions came out of the BIA this week, but there were two very interesting decisions out of the Ninth Circuit that can really help our clients. The first case that I discuss, holds that the Immigration Court and the Board of Immigration Appeals both have jurisdiction to decide whether or not to administratively close a case under Matter of Avetisyan regardless of what ICE wants. The second case holds, that the age of a noncitizen child on the date that his or her parent naturalizes is the statutory age under the Child Status Protection Act (CSPA), not his biological age. This case can be the difference between a young adult immigrating to the United States immediately or waiting over twenty years to immigrate as the adult son or daughter of a U.S. citizen.
The Immigration Courts and the BIA and the Ninth Circuit All Have Jurisdiction Over Administrative Closure Cases Under Matter of Avetisyan – Sadly, it Did Not Help the Noncitizens in this Case
In a very interesting decision, filled with useful tidbits of information, the Ninth Circuit found that the Immigration Courts, the BIA, and the Ninth Circuit all have jurisdiction to decide administrative closure cases. The Ninth Circuit strongly reaffirmed Matter of Avetisyan, 25 I.&N. Dec. 688 (BIA 2012). By way of background, Matter of Avetisyan allows the Immigration Court to administratively close a case. I have heard many stories of Immigration Judges thinking that they did not have jurisdiction to close a case under Avetisyan if ICE disagreed with the motion for administrative closure. The Ninth Circuit resoundingly said "NO!" The Ninth clarified, that the issue of whether or not to close a case rests solely with the Immigration Court and with the Board of Immigration Appeals. ICE opposing the motion for administrative closure is just one factor to consider in adjudicating this decision. "Allowing the Department [DHS] or a petitioner to have absolute veto power over administrative closure is an impermissible violation of the IJ and BIA’s delegated authority and responsibility to adjudicate cases. Gonzalez-Caraveo v. Sessions, No. 14-72472, slip op. at 9, (9th Cir. February 14, 2018). Here the noncitizen husband and wife and their two young daughters were picked up during a traffic stop and placed in removal proceedings for overstaying their visas. They requested administrative closure, but ICE objected. Both the IJ and the BIA said they couldn’t close the case if ICE objected. The Ninth Circuit denied this argument and found that they too had jurisdiction to determine if a case was qualified under Matter of Avetisyan for administrative closure. The Ninth looked at the six factors under Avetisyan and found that they were "particularly relevant to the efficient management of the resources of Immigration Courts and the Board and … are routinely evaluated by Immigration judges, the Board, and the circuit courts. Id., at 11.
Sadly, for the noncitizens, while the Ninth Circuit found that they had jurisdiction, they also found that the clients did not qualify for relief under the other Avetisyan factors. In other words, it does not appear that the noncitizens really qualified for any relief from removal.
In an interesting aside, the Ninth Circuit noted that while the noncitizens argued before the BIA that the IJ showed bias and abandoned his neutrality by questioning witnesses, the noncitizens failed to make this argument in their opening brief on appeal before the Ninth and thus waived it. "Petitioners do not raise this claim on appeal and have waived it. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n. 5 (9th Cir. 2003) (holding failure to raise arguments in opening brief constitutes waiver). So, when you are writing your opening brief to the Ninth, include every argument that you can think of so that it’s not waived.
The other interesting tidbit is about the noncitizens claim for relief under the Convention Against Torture. The Ninth Circuit held that generalized evidence of violence – not particular to the noncitizens – is insufficient to establish that torture is more likely than not.
It’s a good statement of law is very good for our clients, but it did not help the noncitizens in this case.
Gonzalez-Caraveo v. Sessions, No. 14-72472 (9th Cir. Feb. 14, 2018).
The Age of a Noncitizen Child on the Date of Their Parent’s Naturalization is the Statutory Date Under the Child Status Protection Act Overruling the BIA’s Decision in Matter of Zamora-Molina, 25 I.&N. Dec. 606 (BIA 2011) – Continue Reading – It’s a Great Case
Whenever I see that a Ninth Circuit decision is authored by Judge Stephen Reinhardt I do a little dance of joy. I know that whatever sentences and paragraphs come next will make me very happy. My dance of joy was slightly tempered when I realized that this case deals with the Child Status Protection Act (CSPA) (one of the most confusing pieces of legislation ever written) but, with a few deep breaths, I was able to get through it and do a full-on dance of joy. First a little background. In 2002 Congress passed the CSPA which provided the following: 1) you calculate a beneficiary’s age for F2A (minor child of a lawful permanent resident) visa purposes by subtracting from the beneficiary’s actual age the number of days during which his visa was pending. 2) a U.S. citizen child’s eligibility for immediate relative status is determined by the age of the child on the date that the petition is filed. And, 3) if a permanent resident naturalizes while an F2A petition is pending for his or her minor child, the child’s eligibility for immediate relative status is determined by the age of the child on the date of the parent’s naturalization. Stay with me here; my eyes just glazed over re-reading that paragraph, but this case is important.
Here, the father petitioned filed an F2A petition for his son (minor child of a lawful permanent resident) when the son was 18 years old. Five years later, the father naturalized and the son was 23 years old. But, under the CSPA, the son was only 19 years old because of the number of days that his immigrant visa petition had been pending. See, I told you it was worth it to continue reading. The BIA had held that under Matter of Zamora-Molina you had to look at the son’s biological age and not his statutory age. The BIA held that at best, the son could choose to transfer from the F1 category (unmarried son of a U.S. citizen) to the F2B category (unmarried son of a lawful permanent resident). According to the March visa bulletin, DOS is currently processing F1s from Mexico that were filed on or before July 22, 1996 and they are processing F2Bs from Mexico that were filed on or before October 15, 1996. However, had the father not naturalized, everyone agreed that the son would have been able to use his statutory age which was 20 at the time the visa became available. The Ninth Circuit found this result to be patently absurd.
The Ninth Circuit held that in determining whether a son or daughter is an immediate relative you look at their statutory age, not their biological age at the time of the naturalization.
Then, just when you think you understand a concept in the law that all arguments must be made in the opening brief before the Ninth Circuit or they are forever waived, (See, Gonzalez-Caraveo v. Sessions) the footnote in the next case changes it all. Here, the government argued that the noncitizen waived any claim to immediate relative status by not raising it before the Ninth Circuit, even though the BIA ruled on that issue. The Ninth Circuit said nonsense. "[I]mmediate relative status is not a separate claim that can be waived.*.*.*. Moreover, even if immediate relative status were a separate waivable claim, we could reach it in this case because the government briefed the issue." Rodriguez Tovar v. Sessions, No. 14-73376 slip op. at 11 n. 3 (9th Cir. Feb. 14, 2018). So, no matter what the previous case just said, if you forgot to make an argument in your opening brief to the Ninth, just keep fighting.
Rodriguez Tovar v. Sessions, No. 14-73376 (9th Cir. Feb. 14, 2018).