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Top of the Ninth: Convention Against Torture (CAT) and 245k

Top of the Ninth: Convention Against Torture (CAT) and 245k

This week I am blogging from the AILA California Chapters’ Conference in San Diego. I am so happy to be surrounded by like-minded immigration lawyers in this time of existential dread (at least for me) in the United States. Being among other immigration attorneys is, for me, a rejuvenating experience.

This week the BIA held that in order to qualify for relief under the Convention Against Torture (CAT) the noncitizen must establish that the torturer specifically intended to inflict severe physical mental pain or suffering on the applicant. The fact that the conditions in which the applicant will be held in and of themselves constitutes torture, is irrelevant to this analysis. The applicant must establish that the torturer specifically intended or intends to inflict torture. Second, the Ninth Circuit held that where USCIS grants a noncitizen employment authorization, the employment authorization does not confer lawful nonimmigrant status for purposes of adjustment of status. I found it a very difficult case to understand (probably because I don’t do any employment law) and I think the Ninth Circuit did not quite understand the case either. Interestingly, the Ninth was very sympathetic to the noncitizen and seemed to leave a trail of breadcrumbs for the noncitizen to use to file a motion to reopen for ineffective assistance of counsel and based on changed circumstances. I am not sure how fair the decision is to the attorneys of record, but it might be a way for the noncitizen to remain in the United States.

Board of Immigration Appeals

To Qualify for Relief Under the Convention Against Torture the Noncitizen Must Establish That the Torture Was Specifically Intended to Inflict Severe Physical or Mental Pain or Suffering

The Board of Immigration Appeals (BIA) held that for a noncitizen to get relief under the Convention Against Torture (CAT) relief, the noncitizen must show that the torture was specifically intended to inflict severe physical or mental pain or suffering on the applicant. Abusive or squalid conditions that are the result of neglect, a lack of resources, or insufficient training and education are not enough for the applicant to get CAT protection. That said, this case is more of an affirmation of the current law rather than a new interpretation designed to limit relief to immigrants.

J-R-G-P- is a native and citizen of Mexico who entered the United States without inspection. J-R-G-P- is severely mentally ill and had been involuntarily hospitalized in the United States. In fact, the opinion indicates that based on his behavior in court, the BIA had remanded the case to allow his attorney to further develop the record. For those of you who are blissfully unaware, the conditions in Mexico for people with mental illness or developmental delays are notoriously horrific. I have read some accounts that liken the conditions in mental institutions in Mexico under which the patients are held to torture. I am not exaggerating. The fact that the world community recognizes that the mentally ill and the developmentally delayed patients in Mexican institutions are being held in conditions that constitute torture, makes this case even sadder. J-R-G-P- argued that he would be tortured in Mexico in pretrial detention, prison, or at a mental health facility.

In its analysis, the BIA noted that to qualify for deferral of removal under the Convention Against Torture (CAT) the noncitizen must prove that it is more likely than not that he will be tortured if he is arrested and put in prison or in a mental health facility. CAT claims must be considered in terms of the aggregate risk of torture from all sources, and not as separate, divisible claims. To meet his burden, the applicant must show "that each link in a "hypothetical chain of events is more likely than not to happen." Matter of J-F-F-, 23 I.&N. Dec., 912, 917 (A.G. 2006); see also Haile v. Holder, 658 F.3d 1122, 1131 n. 9 (9th Cir. 2011)." Matter of J-R-G-P-, 27 I.&N. Dec. 482 at 484 (BIA 2018). Second, the noncitizen must plausibility establish that the torturer specifically intended the actual consequences of his actions. In other words, the applicant must establish that the torturer intended to torture the applicant.

We likewise conclude that where the evidence regarding an application for protection under the Convention Against Torture plausibly establishes that abusive or squalid conditions in pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience "torture" in these settings is not clearly erroneous.

Matter of J-R-G-P-, 27 I.&N. Dec. at 485-86.

This issue interests me so, I did a deep dive and read the actual treaty and the regulations. I was hoping to discover that the regulations were ultra vires to the treaty. But, no, the regulations track the language of the treaty.

Torture is defined as any act by which severe pain or suffering, whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1) (emphasis added). So, it seems that when dealing with the mentally ill or the developmentally delayed, who might be sent back to a country where the conditions of the institutions are so horrible that they arise to the level of torture, we might be able to argue that the de facto torture inflicted on the patients is based on discrimination against the mentally ill or disabled. And, we have to establish that the torture is inflicted with the consent or acquiescence of a public official or person acting in an official capacity.

The Ninth Circuit has somewhat recognized this argument in a 2010 case holding, "[i]t is only when the alleged torture would be at the hand of a private entity that mere awareness or wilful blindness by the government is sufficient." Eneh v. Holder, 601 F.3d 943, 948 (9th Cir. 2010). It is not the strongest argument in the world, but it is likely the best we can do. As usual, this Administration is not really changing the law, they are merely re-stating it in a VERY LOUD VOICE.

Matter of J-R-G-P-, 27 I.&N. Dec. 482 (BIA 2018).

Ninth Circuit

A Grant of Employment Authorization Does Not Confer Lawful Nonimmigrant Status on Noncitizens for the Purposes of Adjustment of Status under INA § 245(k)

The Ninth Circuit held that a grant of employment authorization does not confer lawful nonimmigrant status on noncitizens for purposes of adjustment of status under INA § 245(k). In the interest of full disclosure, I do not do any employment-based immigration, so I had a harder time than normal understanding this case. But I’ll do my best. The first thing we need to do to analyze this decision, is be very clear on what the statute actually says.

An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 1153(b) of this title (or, in the case of an alien who is an immigrant described in section 1101(a)(27)(C) of this title, under section 1153(b)(4) of this title) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien's admission.

INA § 245(k). The question before the Ninth was whether a noncitizen who had valid employment authorization was in lawful status? The Ninth Circuit held that he did not.

The Ninth Circuit spent a lot of time going through the facts of this case; I think it is, in part, because the noncitizen is so sympathetic in this case, but also because the facts are very confusing. Mr. Ma is a citizen of the People’s Republic of China. In 2003, he was admitted to the United States on an H-1B visa to work as a computer analyst at the Ma Law Firm. Mr. Ma had a bachelor’s degree in computer science and in technology. It is not clear where Mr. Ma obtained his degrees – whether it was in the U.S. or in China. Mr. Ma’s H-1B was valid from September 3, 2003 through August 4, 2006. In July 2006, the Ma Law Firm filed a Form I-129 to extend Mr. Ma’s H-1B status. On January 9, 2007, the California Service Center denied the Form I-129 finding that the Ma Law Firm failed to submit evidence that his continued duties would be in line with that of a specialty worker occupation. On February 2, 2007, the Ma Law Firm appealed the denial of the I-129 to the AAO. While the appeal was pending the Ma Law Firm filed an I-140, I-485, and I-765 on behalf of Mr. Ma. In other words, they filed for an immigrant visa for Mr. Ma while the appeal of the denial of the H-1B extension was pending. On September 26, 2007, USCIS granted Mr. Ma’s work permit. But, by the time they granted the work permit, Mr. Ma had been working in the United States without a valid visa for 417 days. On January 8, 2008, the AAO dismissed Ma Law’s appeal of the H-1B denial. On September 25, 2009, the Nebraska Service Center denied Mr. Ma’s adjustment application concluding that because he engaged in unauthorized employment for 418 days – well over the 180 days permitted under INA § 245(k)(2) he was ineligible for adjustment of status. On September 29, 2009, Ma Law filed a second motion to reopen and they filed an appeal. On December 29, 2009 USCIS denied the motion to reopen and on January 29, 2010, they denied his appeal.

On May 3, 2010, ICE initiated removal proceedings against Mr. Ma for overstaying his H-1B visa. Now, while this case was pending, Mr. Ma had obtained his MBA from San Diego State and in 2010 he left Ma Law and started working at MGM Resorts as a senior business analyst. Also, in 2011, Mr. Ma’s parents fled China, and came to the United States where they obtained asylum. Mr. Ma has been taking care of and supporting his parents since they came to the United States. (This factoid, is part of the trails of the breadcrumbs that the Ninth Circuit laid down in this case, I believe to help Mr. Ma stay in the United States.) On February 3, 2014, Mr. Ma appeared before the IJ and denied that he had remained in the United States without authorization. He requested adjustment of status. At the removal hearing his attorney argued that the time period under 8 CFR § 274a.12(b)(2), which authorizes petitioners to continue employment with the same employers for a period not to exceed 240 days, did not start tolling until after USCIS denied his case. Mr. Ma argued that while the timely application for adjustment of status was pending, it conferred lawful status on Mr. Ma. He argued that between August 4, 2006 when his H-1B expired and January 9, 2007, when USCIS denied the I-129 extension he was still in lawful status. Mr. Ma argued that he was only out of status for 174 days before applying for adjustment of status, well within the 180 days under INA § 245(k).

The IJ held and the BIA affirmed that under Matter of Rotimi, 24 I.&N. Dec. 567 (BIA 2008) employment authorization was not lawful status; and that although Mr. Ma had maintained valid employment until January 9, 2007, that did not mean that he maintained lawful non-immigrant status. The question presented to the Ninth Circuit was whether employment authorization under 8 C.F.R. § 274a.12(b)(20) confer lawful non-immigrant status on a noncitizen for Section 245(k) purposes. The Ninth Circuit, said no.

The Ninth Circuit found that the IJ and the BIA’s reasoning was wrong, but the outcome was correct. They held that Matter of Rotimi did not apply in this case because it did not involve a removal proceeding; did not involve an H-1B visa; and did not involve the regulation at issue. The Ninth Circuit cited to El Badrawi v. United States, 787 F.Supp.2d 204 (D. Conn. 2011) in support of this position. Nonetheless, they found that Mr. Ma was not entitled to relief.

The Ninth Circuit noted:

Navigating the labyrinth that is the worker visa, employment authorization, and status adjustment process under the Immigration and Naturalization Act ("INA") is not for the faint of heart. So technical and so complex are the INA’s requirements that unlucky petitioners may find themselves in removal proceedings without ever realizing that their status was in jeopardy to begin with. As a result, avoiding removal often hinges on the skill and knowledge of one’s employers and their lawyers, whose hands—like those of Ariadne’s—may or may not hold the red thread out.

Ma v. Sessions, No. 15-73520 slip op. at *5 (9th Cir. Nov. 2, 2018). As I said, the Ninth Circuit was very sympathetic to Mr. Ma and to the complexity of the law in this case. The Ninth Circuit noted the complexity of the relevant dates in this case. "These errors only highlight the difficulties facing petitioners who wish to apply for status adjustment and who are expected to track relevant dates as closely as Copernicus once tracked the movements of the sun. See Nicolaus Copernicus, De Revolutionibus Orbium Coelestium [On the Revolutions of the Heavenly Spheres] (1543)." Ma, slip op. at *8 n.3. Though in fairness, as much as I loved the cite to Copernicus, we have it a little easier than Copernicus did, because we have day counting software.

The Ninth Circuit looked to the regulations, specifically 8 C.F.R. § 1245.1(d)(1), to determine if Mr. Ma had been in lawful status while we was working on an approved work permit.

Here’s the relevant part of the regulation:

(d) Definitions—

(1) Lawful immigration status. For purposes of section 245(c)(2) of the Act, the term "lawful immigration status" will only describe the immigration status of an individual who is:

(i) In lawful permanent resident status;

(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter I;

(iii) In refugee status under section 207 of the Act, such status not having been revoked;

(iv) In asylee status under section 208 of the Act, such status not having been revoked;

(v) In parole status which has not expired, been revoked or terminated; or

(vi) Eligible for the benefits of Public Law 101–238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

The Ninth Circuit found that this regulation was entitled to Chevron deference and found that the grant of employment authorization does not fall within one of the six enumerated categories of what constitutes lawful status. They denied the petition for review.

I promised you that the Ninth Circuit left a path of breadcrumbs in this case. Throughout the decision, the Ninth Circuit pointed out errors by counsel that arguably could amount to ineffective assistance of counsel. For example, in one footnote, the Ninth Circuit noted that Mr. Ma never argued before the agency that his lapse of status was a technical violation as defined by 8 C.F.R. § 1245.1(d)(2)(ii). Ma, slip op. at *18 n. 14. Additionally, in the final footnote of the case, the Ninth Circuit noted that Mr. Ma was eligible for a 601 waiver because he could establish extreme hardship to his parents. It seems pretty clear that the Ninth Circuit seems to think that new counsel can file a motion to reopen arguing ineffective assistance of counsel and changed circumstances, and then apply for a 601 waiver for the unlawful presence.

Ma v. Sessions, No. 15-73520 (9th Cir. Nov. 2, 2018).

If anyone has any comments, please feel free to contact me at mkahn@immigration-defense.com. I look forward to hearing from you.

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