This week Texas and six other states filed a lawsuit in Federal District Court in Texas moving the court to enjoin DACA. The Trump administration is refusing to defend the case and the Mexican American Legal Defense and Education Fund (MALDEF) will likely intervene to represent the DACA recipients. The case will be heard by Judge Hanen in Brownsville Texas. You might remember that Judge Hanen is the judge who enjoined DAPA back in 2015. Two District Courts, (one in New York and one in San Francisco) have ruled that DACA is a lawful exercise of executive power, and it is likely that the Texas District Court will rule the other way. These cases will likely end up in the Circuit Courts and eventually in the Supreme Court. Closer to home, it was a quiet week for immigration law within the Ninth Circuit and the Board of Immigration Appeals. No cases came down from the BIA, the Attorney General, the District Courts or the Supreme Court. Only one case came down from the Ninth Circuit.
Ninth Circuit – Physical Presence for Special Cancellation NACARA – Start Counting Time from the Latest Disqualifying Act
The Ninth Circuit held, to qualify for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA) the noncitizen must show that he has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of the latest disqualifying act. The ten-year period ends when the noncitizen files an application for special rule cancellation of removal.
In order to understand this case, we need a mini lesson on NACARA. In 1997, Congress enacted NACARA in 1997 to ameliorate the harsh consequences of IIRIRA for certain Salvadorans, Guatemalans, and Eastern Europeans as it related to cancellation of removal for nonpermanent residents. To go back in time even further, we need to understand "suspension of deportation." Prior to 1996, noncitizens in the United States who had been living in the United States for seven years or longer, who could establish good moral character, and who could establish extreme hardship to him or herself or to a U.S. citizen or lawful permanent resident parent, spouse, or child, could apply for suspension. The clients called it the "seven-year green card." It was a discretionary form of relief, but there were no limits on the numbers of people who could be granted suspension. In San Francisco, if you had a client who had been living in the United States for at least seven years, had paid taxes, and had U.S. citizen children, it was pretty easy to get suspension.
IIRIRA got rid of suspension and replaced it with cancellation of removal. But, less than a year later, Congress enacted NACARA which had the more generous rules to benefit Central Americans and Eastern Europeans. Special rule cancellation allows for relief from deportation if the noncitizen can establish 1) seven years of residency in the United States; 2) good moral character during the statutory period; and 3) extreme hardship to the noncitizen or to the lawful permanent resident or U.S. citizen parent, spouse, or child. If a noncitizen has been convicted of certain crimes then they have to show ten years residency, and good moral character and exceptional and extremely unusual hardship. It is the same standard as suspension of deportation.
Now back to 2018. Mr. Campos-Hernandez is a native and citizen of El Salvador. In 1990 or 1991 (when he was in his 20’s) he entered the United States without inspection. He is married to a U.S. citizen. In 2003, 2005, and 2008, he was convicted of drug-related offenses in California. He applied for NACARA and the BIA held that he did not qualify. The BIA held that the physical presence requirement of ten years (he had the heightened standard because of the convictions) ran from the time of his most recent disqualifying conviction – 2008 rather than 2003.
Mr. Campos-Hernandez appealed the decision contending that the time to start counting the ten years was from the date of his earliest conviction, not the last conviction. His argument was based on a suspension of deportation case from 1962. In that case the noncitizen had applied for the suspension of deportation and the law at that time required ten years of physical presence. The Ninth Circuit examined what date and which unlawful action by the noncitizen started (yes, started) ten years of physical presence? Was it when he accepted employment even though he was here on a nonimmigrant visa? Was it later when he overstayed his visa? Or, was it when he failed to send his change of address to the Attorney General. The Ninth Circuit ultimately held that the earliest date of unlawful action started the clock for the noncitizen to acquire the necessary ten-years physical presence. The Ninth Circuit held, that because the way the statute was worded left it open to two possible constructions, that it should be strictly construed in favor of the immigrant. The Court held, "Although not penal in character, deportation statutes as a practical matter may inflict ‘the equivalent of banishment or exile’… and should be strictly construed.'" Fong v. Immigration & Naturalization Serv., 308 F.2d 191, 194–95 (9th Cir. 1962). I’ll just let that language stay there.
While Mr. Campos-Hernandez’s appeal was pending before the Ninth Circuit, the BIA issued a precedential decision on this issue, Matter of Castro-Lopez, 26 I.&N. Dec. 693 (BIA 2015). Castro-Lopez holds that for purposes of special rule cancellation of removal continuous physical presence should be measured from the noncitizen’s most recently incurred ground of removal. The decision is in direct contradiction to Fong. So, does the BIA’s interpretation of the statute control or does the Ninth Circuit’s interpretation control? Do you start counting time from the date of the first conviction in this case or the date of the last conviction? Fong holds the date of the first conviction to try to avoid the harshness of exile, while Castro-Lopez states the latest date. The Ninth Circuit engaged in an exhaustive analysis of Chevron deference, Brand X, and Auer deference. Until I read this case I did not even know about the existence of Auer deference. (Auer deference holds that an agency’s interpretation of its own regulation is entitled to deference by the circuit courts. It’s like Chevron deference for regulations. Auer v. Robbins, 519 U.S. 452 (1997)). The Ninth Circuit found that under Chevron, Brand X, and Auer, it had to defer to the BIA’s decision in Castro-Lopez.
For a deep dive into Chevron deference, Brand X, and Auer deference, this is the case.
Campos-Hernandez v. Sessions, No. 14-70034 (9th Cir. May 2, 2018).