After a very long hiatus, “Top of the Ninth” is back – though maybe at a slightly different pace. In an attempt to get more work/life balance, I stopped blogging. I went full-on Marie Kondo, thanked everything in my life for giving me joy, and eliminated things that were no longer giving me joy. But lately, I realized that I missed the blog. Now I am going to try to blog when I see cases that interest me. This week has been an exceptional one for interesting cases!
First, the Board of Immigration Appeals held that a person who is subject to the ten-year bar can spend those ten years in the United States. Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023). The BIA’s decision tracks with a recent policy memo put out by USCIS holding that the ten-year period starts when the person departs the United States and that it is irrelevant where those ten years are spent. See Policy Alert PA-2022-15 (June 24, 2022).
We have been arguing this issue for years and USCIS, the Immigration Judges, and the BIA have been all over the place on the ten-year bar. The decisions seemed to be based on how the adjudicator was feeling that day. But now we have some very good news for those rare clients who lived in the United States without status for over six months, left, and then reentered the United States after inspection and admission. To be clear THIS DECISION DOES NOT APPLY TO THE PERMANENT BAR. (And, yes, I realize that I am shouting at all of you gentle readers, but this distinction is important). People who are subject to the permanent bar still must spend the ten years outside of the United States before they can apply for a waiver. This decision will not help all that many of our clients. That said, I am a lifelong Cubs fan and I celebrate all of the wins. I am going to revel in this one.
The second interesting case is a Ninth Circuit case that holds that where DHS appeals an Immigration Judge’s decision to the BIA and the noncitizen does not file a cross-appeal on a different issue in the case, the noncitizen has waived that issue on appeal. The Ninth Circuit basically says, ‘everyone knows about this unwritten rule, and we are going to enforce it.’ Lopez-Hernandez v. Garland, No. 20-71956 (9th Cir. Feb. 16, 2023). I often think that Stephen Colbert was right when he coined the term “truthiness” and said that “[w]e are divided between those who think with their head and those who know with their heart.” It seems that in this decision, the Ninth might be “knowing with their heart.” For those who want to watch that clip, please click here.
Let’s dig into these two cases!
BOARD OF IMMIGRATION APPEALS
Let’s start with the happy case. In June 2000, Jorge Duarte-Gonzalez was admitted to the United States and authorized to stay for thirty days. Instead, he stayed for over a year and left the United States in August 2001. Later that month he was inspected and admitted again using his border crossing card. He was authorized to stay for another thirty days but he never left. When his U.S. citizen son turned twenty-one, he filed an immigrant visa petition for his father. Mr. Duarte-Gonzalez applied for adjustment of status.
What Happened in Immigration Court?
The Immigration Judge (IJ) found that Mr. Duarte-Gonzalez was ineligible to adjust status because he did not remain outside of the United States for the entire ten-year period of inadmissibility under INA § 212(a)(9)(B)(i)(II). The IJ stated that allowing Mr. Duarte-Gonzalez to satisfy the ten-year period of inadmissibility while he was unlawfully present in the United States would undermine the purpose of INA § 212(a)(9)(B)(i)(II) – deterring unlawful presence. Personally, I think living in the United States for ten years without legal status and without a work permit is deterrence enough for most people. Back to the case, the IJ reasoned that the ten-year period is analogous to the requirement that people applying for consent to reapply for admission after deportation or removal must remain outside of the United States for the time period for which they are inadmissible unless they are granted a waiver. 8 C.F.R. § 1212.1(a). Seriously IJ? Don’t you see the difference? The IJ found that Mr. Duarte-Gonzalez lacked a qualifying relative and was ineligible for a waiver of inadmissibility under INA § 212(a)(9)(B)(v). (Remember that USC children don’t count for this waiver. Only extreme hardship to USC or LPR parents or spouses is considered. The cruelty of this law is breathtaking – and don’t even get me started on the permanent bar). Mr. Duarte-Gonzalez appealed.
Mr. Duarte-Gonzalez argued that there was nothing in the plain reading of the statute that says that the ten-year bar has to be spent outside of the United States. And, it turns out, that he’s right. The statute provides:
“Any [noncitizen] (other than a [noncitizen] lawfully admitted for permanent residence) who . . . has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such [noncitizen’s] departure or removal from the United States is inadmissible.”
INA § 212(a)(9)(B)(i)(II). The Board noted that on its face the statute did not state whether the person must spend the ten-year bar outside of the United States. By contrast, the permanent bar provides:
“Any [noncitizen] who has been unlawfully present in the United States for more than one year, or who has been removed . . . and who enters or attempts to reenter the United States without being admitted is inadmissible.
Exception. – Clause (i) shall not apply to a [noncitizen] seeking admission more than ten years after the date of the [noncitizen’s] last departure from the United States if, prior to the [noncitizen’s] reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the [noncitizen’s] applying for readmission.”
INA § 212(a)(9)(C). (There is also an exception for a VAWA self-petitioner who can show between the battery and extreme cruelty and the reentry or attempted reentry to the United States without being inspected or admitted). These two statutes are different on their faces.
The BIA had previously contrasted section 212(a)(9)(B)’s periods of “temporary inadmissibility” with the “permanent inadmissibility” in section 212(a)(9)(C). Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006). But, they had not previously addressed whether a person must remain outside of the United States during the relevant period of inadmissibility under 212(a)(9)(B). The BIA held that it had a duty to follow the plain and unambiguous language in the statute. K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988). “A plain text reading of section 212(a)(9)(B)(i)(II). . ., indicates that the period of ineligibility runs from the date of departure from the United States and does not require a noncitizen to remain outside the United States for the entire ten-year period of inadmissibility.” Matter of Duarte-Gonzalez, 28 I&N Dec. at 690. This interpretation of the statute is buttressed by the fact that section 212(a)(9)(C) specifically states that a noncitizen must spend time outside of the United States. And they found that the IJ’s citation of 8 C.F.R. § 1212.2(a) which requires people who have been deported or removed from the United States to be outside of the United States for a period of time does not apply. Do you know why? Because “[t]he regulation was not promulgated to implement section 212(a)(9) of the INA and does not correspond to any provision of section 212(a)(9) of the INA.” Matter of Duarte-Gonzalez, 28 I&N Dec. at 691. The BIA remanded the case to the IJ to adjudicate the adjustment of status application. It helps the rare client, but it is a wonderful ruling.
THE NINTH CIRCUIT
I found this case to be troubling and confusing at all points of the litigation. The Ninth Circuit denied a petition for review where the noncitizen had not filed a cross-appeal on a particular issue with the BIA. The Ninth Circuit agreed with the noncitizen that the regulations do not expressly address cross-appeals but held it is an “unwritten but longstanding rule” that a party must file a cross-appeal to preserve an issue. What? We practice immigration law! We live in a world where we cannot rely on “unwritten but longstanding rule[s].” We live in a world where burglary isn’t burglary ; where for a brief, shining moment, methamphetamine wasn’t methamphetamine; and, where sons and daughters aren’t children. What does the Ninth Circuit mean it’s an “unwritten but longstanding rule”? Let’s start at the beginning to see if it can make sense. Please, let it make sense.
Factual Background and EOIR Holdings
Jorge Lopez Hernandez is a native and citizen of Mexico. In 2001 he entered the United States without inspection and in 2015 he was placed in removal proceedings. The Notice to Appear lacked the time or place of the hearing. (You can probably see where this is going). Mr. Lopez moved to terminate proceedings, arguing that the immigration court lacked jurisdiction because the notice to appear lacked information about the time or place of the hearing. The IJ granted the motion to terminate under Pereira v. Sessions, 138 S.Ct. 2105 (2018). So far so good.
Here is where the facts get very odd, and I, for one, have some thoughts. The IJ thought that the BIA might disagree with its jurisdictional conclusion and held the hearing even though they found that they lacked jurisdiction. What in the world????? Once the IJ found they lacked jurisdiction, that was the end of the case. Anyhow, Mr. Lopez had initially applied for asylum (which he “abandoned” after the IJ determined that it was untimely), withholding of removal, and protection under the Convention Against Torture. The IJ terminated proceedings and denied the withholding and CAT claims. DHS appealed but the noncitizen did not.
Here is the crux of the case, Mr. Lopez did not file a cross-appeal appealing the denial of withholding or CAT relief. In his brief to the BIA, Mr. Lopez argued that they should affirm the IJ’s decision to terminate proceedings, or, in the alternative, find him eligible for withholding or CAT. (There is a short discussion about his withholding and CAT claim, but it’s not really groundbreaking so I am ignoring it).
The BIA sustained DHS’s appeal and held that an NTA that does not specify the time and place of a hearing still vests the IJ with jurisdiction as long as a notice of hearing specifying this information is later sent to the person. The BIA then addressed the IJ’s alternative decision denying withholding and CAT relief and held that “DHS’s appeal of the jurisdictional decision “does not bring the Immigration Judge’s alternate decision within the scope of this appeal.”” The BIA concluded that the issues were not properly before them because Mr. Lopez had not filed a cross-appeal and declined to address Mr. Lopez’s eligibility for withholding and CAT relief. Lopez Hernandez slip op. at *7.
Mr. Lopez filed a petition for review and waived the argument that the IJ lacked jurisdiction. (Please note that in 2022 the Ninth Circuit had held that a defect in a notice to appear does not affect the subject-matter jurisdiction of the immigration court. United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc)). (Welp, that case happened during this blog’s long hiatus). But the issue of whether Mr. Lopez was required to file a cross-appeal for the BIA to adjudicate his claim remained alive and well.
Mr. Lopez argued that the BIA erred when it concluded that he was required to file a separate cross-appeal to challenge the IJ’s alternative order on the merits of his claim. In support of its conclusion, the BIA relied on 8 C.F.R. § 1003.3(a) which states “[a]n appeal from a decision of an immigration judge shall be taken by filing a Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) directly with the Board, within the time specified in § 1003.38.” The Ninth Circuit noted, “Lopez correctly observes that section 1003.3 does not expressly address cross-appeals.” Lopez Hernandez, slip op. at *8.
Let’s go back to the beginning, what is a cross-appeal? We are, after all, immigration lawyers, and not all of us are litigators.
The cross-appeal rule is an “unwritten but longstanding rule” under which “an appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw v. United States, 554 U.S. 237, 244 (2008). The Supreme Court has described that rule as “firmly entrenched,” noting that “in more than two centuries of repeatedly endorsing the cross-appeal requirement, not a single one of our holdings has ever recognized an exception to the rule. Id. at 245.
Lopez Hernandez, slip op. at *8.
I then went and read the Greenlaw case, and, in all honesty, this decision started to make more sense to me. In this criminal case, the District Court sentenced Mr. Greenlaw to 442 months imprisonment – over thirty-six years. Mr. Greenlaw appealed and argued that the appropriate sentence for the underlying convictions was fifteen years. The case went to the Eighth Circuit. The Government did not file a cross-appeal but argued that the sentence should have been 15 years longer than the 442 months – nearly fifty-two years and, the Eighth Circuit agreed. The Supreme Court held, “[t]he cross-appeal rule, pivotal in this case, is both informed by, and illustrative of, the party presentation principle. Under that unwritten but longstanding rule, an appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw, 128 S.Ct. at 2564. The Court noted that the rule was firmly entrenched and served to advance “institutional interests in fair notice and repose.” Greenlaw, 128 S.Ct. at 2565. Importantly, a defendant who appeals but does not face a cross-appeal can rely on the fact that his sentence will not be increased. “The strict time limits on notices of appeal and cross-appeal would be undermined, in both civil and criminal cases, if an appeals court could modify a judgment in favor of a party who filed no notice of appeal. In a criminal prosecution, moreover, the defendant would appeal at his peril, with nothing to alert him that, on his own appeal, his sentence would be increased until the appeals court so decreed.” Greenlaw, 128 S.Ct. at 2569. Fair enough. The Greenlaw case makes sense.
The Ninth Circuit notes that although an appellee must cross-appeal if they seek to alter the judgment, they do not have to do so if they only wish to present an alternative ground for affirming the judgment. Lopez Hernandez slip op. at *8-9. The limitation on the cross-appeal rule does not help Mr. Lopez because he tried to alter the judgment entered by the IJ. That seems fair enough and I understand that distinction.
Just when I am comfortable with the decision, the case takes an unexpected turn. The Ninth Circuit notes that they are not suggesting that the BIA was required to follow the traditional rule governing cross-appeals (which apparently everyone knows) and they have the authority to prescribe its own rules of procedure. 8 C.F.R. § 1003.1(d)(4). Lopez Hernandez, slip op. *9. As long as the BIA acts within the limits of the Due Process Clause, it is not up to the Courts to specify the BIA’s procedures. Lopez Hernandez, slip op. at *10. Wait, what? I think to be safe, it’s best to assume that the cross-appeal rule applies in immigration proceedings.
This case is not important only to Ninth Circuit practitioners but to most immigration attorneys because apparently the First Circuit, the Second Circuit, the Seventh Circuit, and the Eleventh Circuit have all held that the cross-appeal rule applies to proceedings before the BIA. Who knew?
We have both good news this week and a really important litigation lesson. First, a person subject to the ten-year (or three-year) bar can spend the bar in the United States. They can adjust status without filing a waiver showing extreme hardship to a U.S. citizen or permanent resident parent or spouse. Second, I now know that I need to file a cross-appeal even in cases that I win in the Immigration Court if I disagree with one of the IJ’s holdings. These cases are a good way to restart a blog. Until next time……