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Top of the Ninth: Continuances and Suppression

Top of the Ninth: Continuances and Suppression

Jeff Sessions issued a decision this week limiting the discretion of Immigration Judges to terminate or dismiss removal proceedings. In a separate decision he asked for briefing on the issue of whether Immigration Judges may hold bond hearings for asylum applicants who were placed in expedited removal proceedings who have passed a credible fear interview in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018). (Jennings v. Rodriguez held that there is no mandatory right to a bond hearing after six months of detention). As Anatole France put it, “[i]t is the certainty that they possess the truth that makes men cruel.” Just the thought of keeping asylum applicants in indefinite detention boggles the mind.

In Ninth Circuit news, the Ninth remanded a case to the Immigration Court so that DHS could rebut prima facie evidence that a stop was so egregious that it warranted termination of removal proceedings without prejudice. It’s an important suppression case. The Ninth Circuit also issued a decision certifying to the Oregon Supreme Court the question of whether Oregon’s robbery statutes are divisible. The Ninth Circuit again looks at the difference between means and elements in order to determine when a statute is divisible; then they certified these cases to the Oregon Supreme Court to answer the question of divisibility. I have to say; the modified categorical approach is enough to drive me crazy.

In last week’s blog, I mentioned the numerous awesome non-profits and pro bono attorneys who filed amici briefs in Villavicencio v. Sessions, No. 13-74324 (9th Cir. Sept. 11, 2018). Unfortunately, I did not mention the lead attorneys who briefed and argued the case: Katherine Horigan and Yara Kass-Gergi. They were both law students at Boston College at the time they worked on the case. Needless to say, they did an outstanding job and the immigration community owes them a huge debt of gratitude. If they do not yet have jobs, try to hire them!

Board of Immigration Appeals

Immigration Judges Have no Inherent Authority to Terminate or Dismiss Removal Proceedings

The Attorney General held that Immigration Judges have no inherent authority to terminate or dismiss removal proceedings. An IJ can only terminate proceedings where authorized by the regulations or where DHS fails to meet its burden of proof. In one stunning sentence the AG claims, "[b]ecause the relevant regulation is clear, I concluded that additional briefing was unnecessary." Matter of S-O-G- & F-D-B-, 27 I.&N. Dec. 462 (AG 2018). Then three pages later, the AG shows exactly why additional briefing was necessary. Here’s the sentence: "On July 18, 2018, the Board affirmed the immigration judge’s order, citing F-D-B- ‘s concern that "voluntary departure could result in the revocation of her provisional waiver or…an additional ground of inadmissibility that cannot be waived by the provisional waiver." Id., at 465. I would think that would be an important issue that the Attorney General might want to explore before issuing a decision that could really hurt this immigrant. But, as Shakespeare says, "[t]he fool doth think he is wise, but the wise man knows himself to be a fool." As You Like It, Act V Scene I. Shakespeare just always seems to know the right phrases to describe Sessions. It’s uncanny.

This decision combined two cases: Matter of S-O-G- and Matter of F-D-B-. First to S-O-G-. S-O-G- is a citizen of Mexico. On March 15, 2015, she was charged with being removable under INA § 212(a)(6)(i) (being present without being admitted). She conceded removability and indicated that she planned to file an application for relief. She never filed anything. During the course of removal proceedings, DHS realized that S-O-G- had an outstanding in absentia removal order from 2002. On July 26, 2017, DHS moved to dismiss the case without prejudice. The IJ granted DHS’s motion because S-O-G- was already the subject of a final removal order. S-O-G- appealed arguing that the termination violated her due process rights to apply for relief or protection from removal. The BIA found that DHS’s motion comported with the governing regulations which provide that after commencement of proceedings, counsel may move for dismissal if the NTA was improvidently issued or for other reasons if DHS decided that continuation is no longer in the best interests of the government. As an aside, I wonder if S-O-G- could file a motion to reopen and to apply for cancellation of removal under Pereira….

On to the next fact pattern, F-D-B- is a citizen of Brazil. In 2002 she entered the United States without inspection and was also charged with being removable under INA § 212(a)(6)(A)(i). In 2004 she was ordered removed in absentia. On December 9, 2013, she filed an unopposed motion to reopen and to rescind her in absentia order. The IJ reopened and F-D-B- conceded removability. In 2016 she obtained an immigrant visa based on a family-based visa petition and the IJ administratively closed her case so that she could file for a 601A waiver and consular process. (Remember, that under the regulations, in order to qualify for a 601A waiver, which allows a noncitizen to remain in the United States while the government is adjudicating the waiver, removal proceedings must be administratively closed). DHS opposed the motion arguing that they had established removability and that she should either seek voluntary departure or some other form of immigration relief. The IJ either closed or terminated the proceedings without prejudice (it’s not clear from the opinion).

The BIA reviewed both cases. In Matter of S-O-G-, the BIA held that the IJ correctly concluded proceedings after finding that the regulatory standard for "termination" had been met. "In F-D-B-, the Board held that "[u]nder the particular facts and circumstances of [the] case," the immigration court had "appropriate[ly]" invoked its crowded docket and its "discretion" to terminate removal proceedings." Matter of S-O-G- & F-D-B-, 27 I.&N. Dec. 462 at 463. The AG referred both cases to himself and stated that the regulations were so clear that there was no need for additional briefing.

The AG starts by noting that DHS has exclusive authority to place noncitizens in removal proceedings. (Remember that argument because we can use it to argue that Matter of Bermudez Cota, 27 I.&N. Dec. 441 (BIA 2018) was wrongly decided. If DHS has exclusive authority to place noncitizen’s in removal proceedings, then EOIR cannot cure a putative NTA by issuing a Notice of Hearing with the time and place of removal proceedings. Think of this interjection as a public service announcement). The AG then states that once jurisdiction vests, the statutory power to supervise immigration proceedings resides with the Attorney General. "And as I recently reiterated, immigration judges may "exercise only the authority provided by statute or delegated by the Attorney General." Matter of S-O-G- & F-D-B-, 27 I.&N Dec. at 465. An Immigration Judge may only terminate proceedings when DHS cannot sustain the charges of removability or in other specific circumstances consistent with the law and applicable regulations. Id.

It’s important to remember that holding; because we can still file motions to terminate where a noncitizen is improvidently placed in removal proceedings. The AG recognizes the following circumstances where the immigration judge may dismiss proceedings: 1) where the NTA was improvidently issued; 2) where the circumstances of the case have changed after the Notice to Appear was issued to such an extent that continuation is no longer in the best interests of the government; 3) to permit the noncitizen to proceed to a final hearing on a pending application or petition for naturalization where the noncitizen has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors. But, ""in every other case, the removal hearing shall be completed as promptly as possible." 8 C.F.R. § 1239.2(f)." Id., at 466 (emphasis in the original). The AG later backtracks recognizes that immigration judges can terminate removal proceedings where DHS has not met its burden and sustained the charges of removability. Id., at 468. So, apart from these four circumstances, the statutes and the regulations do not give immigration judges discretionary authority to dismiss or terminate proceedings after proceedings have begun. Id., at 466. But, then in a footnote, the Attorney General says that this decision does not foreclose respondents, in appropriate circumstances, from requesting that DHS file an unopposed motion to dismiss proceedings under 8 C.F.R. § 1239(c). Id., at 468 n. 4. Please remember that continuances still exist and that they are still a tool for us to use.

Matter of S-O-G- & F-D-B-, 27 I.&N. Dec. 462 (AG 2018).

The Attorney General Referred the Issue of Whether Immigration Judge May Hold Bond Hearings for Asylum Applicants Who Have Passed a Credible Fear Interview

There are few times that a one-page document can so enrage me and, simultaneously, fill me with dread. Usually, it takes at least five-pages. But, the Attorney General managed to do it this past week. The AG called for briefing on the issue of whether Immigration Judges may hold bond hearings for asylum applicants who have passed a credible fear interview. Here’s the exact language:

Whether Matter of X-K-, 23 I.&N. Dec. 731 (BIA 2005), which held that immigration judges may hold bond hearing for certain aliens screened from expedited removal proceedings under section 235(b) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240, 8 U.S.C. § 1229a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

Matter of M-G-G-, 27 I.&N. Dec. 469 (AG 2018). The Supreme Court in Jennings held that there is no implicit six-month limit on mandatory detention. The Ninth Circuit had previously held that after six months detention becomes prolonged and is unconstitutional. The Supreme Court rejected this argument and held that for noncitizen who are subject to expedited removal proceedings who are applying for asylum, there is no clear limit on detention.

Read most naturally, §§ 1225(b)(1) and (b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded. Section 1225(b)(1) aliens are detained for "further consideration of the application for asylum," and § 1225(b)(2) aliens are in turn detained for "[removal] proceeding[s]." Once those proceedings end, detention under § 1225(b) must end as well. Until that point, however, nothing in the statutory text imposes any limit on the length of detention. And neither § 1225(b)(1) nor § 1225(b)(2) says anything whatsoever about bond hearings.

Despite the clear language of §§ 1225(b)(1) and (b)(2), respondents argue—and the Court of Appeals held—that those provisions nevertheless can be construed to contain implicit limitations on the length of detention. But neither of the two limiting interpretations offered by respondents is plausible.


Jennings v. Rodriguez, 138 S. Ct. 830, 842. I fear that noncitizens who have passed a credible fear interview are going to be subject to mandatory detention with no end in sight under Sessions. So, if you can write an amicus brief, it’s due on or before October 16, 2018 and it cannot exceed 9,000 words or you can file a reply brief that is due on or before October 16, 2018 and cannot exceed 6,000 words. The parties have been instructed to file their briefs on or before October 9, 2018.

Ninth Circuit

Where A Noncitizen Makes a Prima Facie Showing of an Illegal Stop (Fourth Amendment Violation) The Case Must Be Remanded to the Immigration Court to Determine if the Fourth Amendment Violation as Defined by the Regulations was so Egregious as to Warrant Termination of Removal Proceedings without Prejudice

This decision is the Ninth Circuit’s second stab at this case. On July 18, 2018, the Ninth Circuit withdrew its first decision in Sanchez v. Sessions, 870 F.3d 910 (9th Cir. 2017). Because Sanchez v. Sessions, was an awesome suppression case I was very upset and concerned about why the Ninth withdrew it and what it might mean for future suppression issues. See, https://www.immigration-defense.com/Our-Blog/2018/July/Top-of-the-Ninth-Jul-20-2018.aspx. Well, the answer is that it’s not great, but it’s not all doom and gloom. In 2017, the Ninth Circuit terminated the immigration case without prejudice where there was prima facie evidence of a Fourth Amendment, illegal search and seizure violation. Judge Pregerson wrote a separate concurrence expressing his frustration that the Government would encourage noncitizens to apply for immigration relief and then use the information that the noncitizens supplied to the Government in removal proceedings. During the pendency of this case, Judge Pregerson died but Judge Paez reiterated Judge Pregerson’s concurrence in his own concurrence in the case. So, if that issue should come up in your case in the future, know that there is at least one judge on the Ninth Circuit who is sympathetic to the argument.

I’m going to reiterate the facts in the case, because it is important to understand the true egregiousness of this stop. Luis Enrique Sanchez is a citizen of Mexico. In or about March 1988, when he was seventeen years old, he entered the United States without inspection. In 2004, he filed an application for Family Unity Benefits and an EAD application based on his father’s status. In 2009, USCIS denied the applications because he had been convicted of three misdemeanors (to wit – driving without a license, speeding, and failing to pay a traffic fine). I won’t even attempt to delve into the ridiculousness of that law.

On February 25, 2010, he went on fishing trip off the Channel Islands Harbor in southern California. (I was there a few summers ago, and it’s an amazing trip – I’ve never seen so many dolphins in my life. But, back to the case). Mr. Sanchez and his friends went about two or three miles from the harbor when the boat lost power. The group did not intend to go on a long trip and one of the passengers brought his fourteen-month-old child. About thirty minutes into the trip the boat lost power and they called 911 to request help. The 911 operator called the Coast Guard. The Coast Guard towed the boat back to Channel Islands Harbor. When they arrived back at the harbor, the Coast Guard had called ahead and there were about eight Coast Guard officers waiting to take the passengers into custody. They frisked Mr. Sanchez and everyone on the boat, ordered them to turn over their identification documents, and their belongings. Meanwhile, the Coast Guard contacted Customs and Border Protection to report that there was a possibility that there were four undocumented workers and the Coast Guard Officers waited for CBP to arrive. CBP detained Mr. Sanchez for two more hours, strip-searched him, retained his wallet and prepared a Form I-213 (Record of Deportable/Inadmissible alien) and then released him.

Nine months after the fishing trip, ICE served Mr. Sanchez with a Notice to Appear. Mr. Sanchez appeared in Immigration Court and filed a motion to suppress and a motion to terminate proceedings. The IJ initially denied the motion to suppress, because Mr. Sanchez failed to attach an affidavit in support of his suppression motion. But, the IJ scheduled a suppression hearing. At the suppression hearing, Mr. Sanchez submitted an affidavit in support of his motion and ICE submitted evidence of Mr. Sanchez’s 2008 applications for Family Unity Benefits and Employment Authorization applications to establish alienage. The IJ found that Mr. Sanchez’s testimony was consistent with his affidavit and ordered him removed to Mexico. The IJ concluded that his Family Unity Benefits and EAD applications were separately and independently admissible to prove his identity. Mr. Sanchez appealed the decision to the BIA.

The BIA affirmed the IJ’s decision and concluded that Mr. Sanchez’s identity and evidence of his alienage was independently derived from a routine record search and was not suppressible. In 2017, the Ninth Circuit held that the Coast Guard committed an egregious Fourth Amendment violation and that the exclusionary rule applied. They held that the I-213 had to be suppressed and ordered the case terminated without prejudice. But, they did not reach the issue of whether the Family Unity Benefits and the Employment authorization applications should have been suppressed; they simply terminated the case with prejudice.

In the new opinion, the Ninth Circuit noted that the exclusionary rule generally does not apply in removal proceedings. However, there are two exceptions: 1) when the agency violates a regulation promulgated for the benefit of the noncitizen and that violations prejudices the noncitizen’s protected interests; and 2) when the Agency egregiously violates a noncitizen’s Fourth Amendment rights. Because Mr. Sanchez has made a prima facie showing that Coast Guard Officers violated the regulations (specifically 8 C.F.R. § 287.8(b)(2)) when they detained him, they did not need to address the Fourth Amendment concerns. Sanchez v. Sessions, No.14-71768, slip op. at *13 (September 19, 2018).

8 C.F.R. § 287.8(b)(2) states that "[if] the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning." The Ninth Circuit noted that the Coast Guard Officers were acting to enforce immigration laws and were deemed under federal law to be acting as immigration agents. 14 U.S.C. § 89(b). Sanchez, slip op. at *14 n. 7.

Next, the Ninth Circuit held that it has been the law in the Ninth for nearly four decades that adjudicators may exclude evidence for a regulatory violation as long as three conditions are satisfied: 1) the agency violated one of its own regulations. √ 2) the subject regulations serves a purpose of benefit to the noncitizen. √ And, 3) the violation prejudiced interests of the noncitizen which were protected by the regulation. √√√! Sanchez, slip op. at 14. The Ninth Circuit noted that on these facts, it appears that the Government detained Mr. Sanchez solely on the basis of his race.

But, the inquiry does not end there – Mr. Sanchez must satisfy the final condition, which is, he must establish prejudice. Here’s the good news: where compliance with the regulation is mandated by the Constitution, prejudice may be presumed. Sanchez, slip op. at *19.

The Ninth held that the test for an alleged violation of 8 C.F.R. § 287.8(b)(2) is whether the Coast Guard officers possessed a reasonable suspicion that Mr. Sanchez was unlawfully present in the country when they detained him. Mr. Sanchez made a prima facie showing that the Coast Guard officers did not. Sanchez, slip op. at *20.

Once the Ninth Circuit determined that the Government violated 8 C.F.R. § 287.8(b)(2) the question became, what was the solution? The Ninth Circuit noted the BIA correctly concluded that Mr. Sanchez’s unlawful status could be independently established through his Family Unity Benefits and Employment Authorization applications, both of which were admissible. The Ninth Circuit in an important footnote held that because his Family Unity Benefits and Employment Authorization applications pre-dated the Coast Guard’s actions, they were admissible. "The fruit-of-the-poisonous-tree doctrine does not extend backwards to taint evidence that existed before any official misconduct took place." Sanchez, slip op. at 21 n. 12.

But, here is where it gets good: "Were suppression of tainted evidence the only remedy available to Sanchez, our review – much like the BIA’s – would end here. But that is not the case. In Calderon-Medina, we recognized that regulatory violations may invalidate deportation proceedings. See 591 F.3d at 531." Sanchez, slip op. at *21. The Ninth Circuit held that the immigration courts may terminate removal proceedings without prejudice for egregious regulatory violations. Sanchez, slip op. at *22. "Because Sanchez has made a prima facie showing that he was detained solely on the basis of his race and that his detention was contrary to the requirements of § 287.8(b)(2), we grant his petition for review and remand for the agency to determine in the first instance whether termination without prejudice is appropriate here." Sanchez, slip op. at *22.

The Ninth Circuit held that this remedy is only for a rare subset of cases where the agency’s violations predate the hearing. "Only full termination of the proceedings without prejudice can "effectively cure [] any procedural defect by putting the parties into the position they would have been had no procedural error taking place."" Sanchez, slip op. at *25. The Ninth Circuit held that this remedy is reserved only for truly egregious cases.

The Ninth Circuit remanded the case to the immigration court to determine whether the Government could rebut Mr. Sanchez’s prima facie showing that there was both a regulatory violation and that the violation was egregious. If the Government fails to rebut Mr. Sanchez’s showing, then the immigration court shall consider whether Mr. Sanchez is entitled to termination without prejudice. Judge Paez in his concurrence cited Judge Pregerson’s concurrence in full and stated that the Government should not be permitted to use noncitizen’s applications for immigration relief to remove noncitizens from their homes and families in our country.

Sanchez v. Sessions, No. 14-71768 (9th Cir. September 19, 2018).

The Ninth Circuit Certifies the Question of Whether Oregon’s Robbery Statutes are Divisible to the Oregon Supreme Court

The Ninth Circuit certified two cases that are "immigration law adjacent" (my term) to the Supreme Court of Oregon to determine whether the Oregon robbery statutes are divisible for purposes of determining whether each crime is a "crime of violence" or a "violent felony" under the provisions of federal sentencing laws. When I say these cases are "immigration law adjacent" I mean that the courts use the same analyses in federal criminal sentencing cases that they use in criminal immigration law cases - the categorical and modified categorical approach. For this reason, it is important to review these cases.

In these cases, the issue is whether Oregon’s robbery statutes, for first degree and second-degree robbery are divisible. It is clear that the statutes are overbroad and do not neatly meet the federal generic definition of a crime of violence, but the Ninth Circuit is trying to determine whether they are divisible statutes and whether the modified categorical approach applies.

The Ninth Circuit kindly gives us a tutorial on this issue. First, they note that a statute is not divisible simply because it is worded in the disjunctive. It all goes to the means and elements. If a statute contains alternative elements, it’s divisible. For a divisible statute, the prosecutor must select the relevant element from its list of alternatives and the jury must find that element unanimously and beyond a reasonable doubt. But, if a statute contains only alternative means, it is not divisible. If a jury does not need to agree how the statute was violated but, only that it was violated the statute is not divisible. As Justice Kagan put it (and I’m broadly paraphrasing now – apologies to Justice Kagan) in the game of Clue what matters is that the person is murdered. It does not matter if Colonel Mustard used the candlestick or the rope to commit the murder. The candlestick and the rope were the means to commit the crime of murder. Colonel Mustard murdered the victim and it does not matter how he did it. A jury must find that the defendant committed each element of a crime beyond a reasonable doubt. How the defendant committed the crime is irrelevant – it’s simply the means used.

United States v. Lawrence, No. 17-30061 (9th Cir. September 18, 2018).

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