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."
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 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)