This week no published decisions came down from either the BIA or the Ninth Circuit, but two things happened that can make practicing removal defense even more difficult. First, the Attorney General referred another case to himself (the fourth one this year) to review the granting of continuances in immigration proceedings. Second, the Supreme Court granted cert in Nielsen v. Preap, which deals with mandatory detention for noncitizens with criminal convictions. Neither one of these developments looks good for our clients.
First, the Attorney General referred a case to himself to determine what constitutes "good cause" for an Immigration Judge to grant a continuance in removal proceedings. The AG noted that the regulations provide the immigration judges with discretion to determine whether to grant a motion for a continuance for good cause. 8 C.F.R. §§ 1003.29 and 1240.6. But, the AG wants to better define "good cause." Under current law, the BIA has stated that the courts should grant continuances when there is a family-based immigration petition pending with USCIS. Matter of Hashimi, 24 I.&N. Dec. 785 (BIA 2009). Or, when there is an employment based immigration-petition pending with the Department of Labor. Matter of Rajah, 25 I.&N. Dec. 127 (BIA 2009). It is important to note, that the AG also referred to himself the issue of whether there was authority for the immigration courts or the BIA to administratively close cases. Matter of Castro-Tum, 27 I.&N. Dec. 187 (A.G. 2018).
This case is especially interesting given that Sessions blames the immigration courts’ low productivity levels and rising backlogs us stating: "representatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases" such as motions for continuance. Backgrounder on EOIR Strategic Caseload Reduction Plan available at, https//www.justice.gov/opa/press-release/file/1016066/download. And, he has urged the immigration courts to limit the grant of continuances stating that "the delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court system, exacerbate already crowded immigration dockets." Operating Policies and Procedures Memorandum 17-01 Continuances available at https://www.justice.gov/eoir/file/oppm01/download.
I think Sessions is simply going to clog up the immigration courts, the BIA, and the Circuit Courts even more. When everything is a priority, nothing is a priority. The parties are to submit their briefs on or before April 17, 2018 and the amicus briefs (if anyone is interested in filing an amicus brief) are due on or before April 24, 2018. For an excellent deep dive into this issue go to blog.cyrusmehta.com.
Matter of L-A-B-R-, 27 I.&N. Dec. 245 (AG 2018).
The Supreme Court granted cert in Nielsen v. Preap to determine what the phrase "when the alien is released from criminal custody" means for mandatory detention under INA § 236(c). Under the detention statute noncitizens who are inadmissible or deportable for having been convicted of a crime are subject to mandatory detention during the pendency of their immigration proceedings. For those of you who don’t regularly work with detainees, here is a little tutorial on Preap. Back in 2014, there was a class action lawsuit brought by the ACLU and a number of other nonprofits challenging mandatory detention for noncitizens with old criminal convictions who had not been immediately placed in ICE detention when they finished their state sentence. The plaintiffs argued that under the plain meaning of the statute, the noncitizens were not subject to mandatory detention unless they had been placed in ICE custody upon release from the state prison. The District Court judge and later the Ninth Circuit agreed with the plaintiffs and found that INA § 236(c) (the mandatory detention statute) states that the government is to "take into custody any alien who [commits an offense enumerated in subparagraphs (A)-(D)] when the alien is released from criminal custody." Preap v. Johnson, 831 F.3d 1193, 1195–96 (9th Cir. 2016). It is a very strict reading of the statute and it really helps our clients.
What this decision meant for practitioners is that when a noncitizen is detained we had to do a two-part analysis: 1) was the crime a removable offense? And, 2) had the noncitizen been taken into ICE custody immediately upon release from criminal custody? If the noncitizen did not meet both prongs, we were able to get a bond for the noncitizen. It was often a very high bond, but it was a bond nonetheless. For example, we have had lawful permanent resident clients who had old controlled substance convictions or old CIMTs from the early 2000’s but were never placed in removal proceedings. They were issued NTAs when they came back from a vacation to visit family outside the United States. Under Preap, these clients were not subject to mandatory detention since they were not taken into ICE custody upon release. It has been a wonderful tool to help our clients.
The BIA has held that the language should not be interpreted so strictly. In a case where the noncitizen was not placed in removal proceedings until two days after his release from state prison, the BIA found that he was subject to mandatory detention. Matter of Rojas, 23 I.&N. Dec. 117 (2001) (en banc). There is a split in the Circuits as to what this language requires and how strictly is should be interpreted. Does it mean that the noncitizen must be immediately placed in ICE custody? If not, how long is too long? The Ninth Circuit is one of the only circuits to read the language of INA § 236(c) so strictly. Moreover, the Government is arguing that the BIA’s decision should be granted deference under Chevron. Chevron deference (based on a 1984 Supreme Court decision) requires that where a statute is ambiguous, the judicial courts should defer the interpretation to the agencies who have been tasked with the interpretation and administration of the statute. As long as the agency’s decision is based on a reasonable interpretation of the statute, that is the interpretation that should stand. For a quick tutorial on Chevron deference here is a good link: https://www.law.cornell.edu/wex/chevron_deference. What is very interesting, is that Justice Gorsuch has gone on the record as being opposed to Chevron deference and some immigration attorneys are challenging this doctrine as being unconstitutional. On March 19, 2018, the Supreme Court granted cert to decide this case. It could be a very interesting decision. Until the case is decided, Preap is still good law within the Ninth Circuit.
Nielsen v. Preap, No. 16-1363, 2018 WL 1369139 (U.S. Mar. 19, 2018)