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“[J]ust as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceedings.” Duran-Ortega v. U.S. Atty Gen., No. 18-14563-D, slip op. at *5 (11th Cir. Nov. 29, 2018). The Eleventh Circuit in granting an emergency stay of removal found that it was likely that Mr. Duran-Ortega would prevail on the claim that the putative Notice to Appear placing him in proceedings that lacked the date and time of the hearing did not confer jurisdiction on the immigration court. Take a moment to process that! The courts might terminate all immigration cases where the notice to appear lacked the time and date of the hearing because the immigration court never had jurisdiction in the first place! The Eleventh Circuit makes this argument about jurisdiction in the subjunctive tense because the entire issue is theoretically could the petitioner prevail on this issue. The Eleventh Circuit held that it was quite likely that the petitioner would prevail and thus, it issued its injunction. The Eleventh held that was likely not going to defer to the Board of Immigration Appeal’s decision in Matter of Bermudez-Cota (a putative Notice to Appear is sufficient to vest jurisdiction on an immigration court so long as the notice of hearing specifying the information was sent to the noncitizen). Matter of Bermudez-Cota, 27 I.&N. Dec. 441 (BIA 2018). The Eleventh held that it need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved or if the holding is unambiguously foreclosed by the law. “In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.” Duran-Ortega, slip op. at *5-6. Keep making those Pereira arguments, they are working.
In other news, Judge Tigar of the Northern District of California denied the Government’s emergency motion to vacate the temporary restraining order in East Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST (N.D. Cal. Nov. 19, 2018) which enjoined the Trump Administration’s promulgation of new rules prohibiting noncitizens who entered the United States without inspection from the southern border from qualifying for asylum. You can read last week’s blog analyzing this decision here. This week the Ninth Circuit issued two immigrant-adjacent decisions and neither the BIA nor the Attorney General issued any decisions. But, once again, the courts are saving us.
NINTH CIRCUIT
This week the Ninth Circuit reiterated the standard for a prosecution for harboring an alien. I know that a number of attorneys are providing legal counsel to religious groups that are providing sanctuary to noncitizens and while I don’t think this case exactly applies, it might be helpful to understand what it says. In an immigration-adjacent case, the Ninth Circuit denied the government’s motion for rehearing en banc in United States v. Fomichev, 899 F.3d 766 (9th Cir. 2018). In Fomichev, the Ninth Circuit held that the marital communications privilege applies to communications made even in a marriage that the government considers to be a “sham” marriage. As George Eliot says in Middlemarch (which is truly a book about all of the different types of marriages there are in the world – or at least in 19th Century Britain): “All must admit that a man may be puffed and belauded, envied, ridiculed, counted upon as a tool and fallen in love with, or at least selected as a future husband, and yet remain virtually unknown – known merely as a cluster of signs for his neighbours’ false suppositions.” George Eliot, Middlemarch, ch. 2., paragraph 15, line 1. Who knows what is a true marriage and what is simply a sign of our false suppositions? In all, it was a pretty good week in the Ninth Circuit.
The Government Must Prove That the Defendant Intended to Harbor an Alien in Order to Convict Under This Statute
I have to admit that this case confuses me, because it is not clear to me why the Government prosecuted these people. Lili Tydingco is a native and citizen of China and is a lawful permanent resident. She is married to Francisco Tydingco who is a U.S. citizen. The couple lives in Saipan in the Commonwealth of the Northern Mariana Islands with their two children. In 2013 the couple went to China and when they were there a friend asked them to bring their ten-year-old daughter back to Saipan so that she could go to school in Saipan and live with the Tydingco family. According to the court the Tydingcos received some money from the family and brought the child to the United States. According to the Saipan Times, the couple received between $15,000 to $20,000 to bring the child to the Saipan and the couple promised to get the child a green card. Anyhow, Customs and Border Protection (CBP) paroled the child into the country pursuant to a form of parole that is limited to the Northern Mariana Islands and is for nationals of China and Russia. The parole was valid for forty-five days. Ms. Tydingco presented the child at the port of entry and was sent to secondary inspection with the child. Ms. Tydingco showed CBP a notarized letter from the child’s parents stating that the Tydingcos would be the child’s guardian while she went to school in the United States. Ms. Tydingco told CBP that they were going to see how it was going to work out with the child and showed them a return ticket booked for the child back to China on October 28, 2018. CBP told Ms. Tydingco to get the authorization letter stamped at the local police station. The CBP officer stamped the child’s passport with a stamp indicating that her parole was valid through November 4, 2013. The Tydingcos enrolled the child in school and submitted a copy of the child’s passport and a copy of the stamped authorization letter that they received from the local police station. The school never asked for a student visa. The child lived with the family until February 2015. It is unclear if the child returned to China or what happened to here. Sometime after February 2015, the Department of Homeland Security questioned Ms. Tydingco about this case and then prosecuted the couple in federal court.
The district court found the couple guilty of harboring an alien. The couple appealed; arguing that the district court gave the jury incorrect instructions. In order to understand the arguments here, let’s first look at the statute. Section 1324(a)(1)(A)(iii) Title 8 of the United States Code criminalizes the conduct of any person who:
Knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal harbor, or shield from detection, such alien in any place, including any building or any means of transportation.
The district court instructed the jury that the term “harbor” means “to afford shelter to” the district court did not include any requirement that the jury consider whether the defendants intended to violate the law. The Ninth found that the jury instructions were fatally flawed because they did not contain an intent element. The Ninth Circuit held that for a person to violate the harboring statute, they must have intended to violate the law – whether they were purposefully hiding the noncitizen or boldly sheltering the person in defiance of what the person considers to be an unjust law. United States v. Tydingco, No. 17-10023 slip op. at *11 (9th Cir. Nov. 27, 2018). The Ninth held that the jury instructions were legally deficient because they did not require the jury to find that the Defendants intended to violate the law.
The second issue, was whether the district court properly instructed the jury as to the meaning of acting with “reckless disregard.” The Ninth held that it did not. In order to establish “reckless disregard” the defendants themselves must be aware of facts from which an inference of risk could be drawn, and the defendants must actually draw that inference. In other words, the defendant must have a suspicion that what they are doing is against the law. The Ninth held that the proper definition for acting with reckless disregard is whether “the defendant knew of facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustifiable risk that the alleged alien was in fact an alien and was in the United States unlawfully, and the defendant knew of that risk.” Tydingco, slip op. at 13, quoting, United States v. Rodriguez, 880 F.3d 1151, 1162 (9th Cir. 2018) (emphasis in the original). In this case, the Ninth Circuit found that Ms. Tydingco established that there was more than simply a mere possibility that the district court had given the wrong jury instructions and that Ms. Tydingco did not understand the risk that the child was in the United States unlawfully. They reversed and remanded the case. Again, I am mystified as to why the government brought this case. Had the couple abused the child? Did they have an on-going operation where they were bringing children to the United States to get their education? Was it a prosecutor gone rogue? What is going on here?
United States v. Tydingco, No. 17-10024 (9th Cir. Nov. 27, 2018).
The Ninth Circuit Denies the Government’s Motion for Rehearing En Banc in a Marriage Fraud Case
This case might be one of my favorite decisions from 2018; because first, I never would have come up with this argument and second, because of footnote three. This case originally came down in August. You can read my original blog about the case here and read the original decision here. But, for those of you that don’t want to do all that scrolling, here’s a summary. The Ninth Circuit held that the marital communications privilege under the Federal Rules of Evidence applies to sham marriages.
Dimitry Fomichev is a native and citizen of Russia. In 2003, the U.S. government admitted him on a tourist visa and he overstayed his visa. In 2006, he met Svetlana Pogosyan, a U.S. citizen, and the couple got married. Later that year Ms. Pogosyan filed an immigrant visa petition for him and Mr. Fomichev adjusted his status to that of conditional permanent resident. In 2008, USCIS removed the condition. Here is where the case gets interesting. In 2010, the Internal Revenue Service (IRS) started investigating the couple. IRS agents met with Ms. Pogosyan at a coffee shop so that she could answer questions about the couple’s tax returns. Ms. Pogosyan told the IRS agents that she had married Mr. Fomichev so that he could get his green card and that he agreed to pay her rent in exchange for her filing an immigrant visa petition for him. Ms. Pogosyan agreed to wear a wire and record the couple’s conversations and in January 2011, she testified about their arrangement before a grand jury. In October 2012, the couple filed for divorce and in December 2012, their divorce was finalized. I wonder where they were able to get a final divorce in two months?
In March 2013, the government charged Mr. Fomichev with three counts of subscribing to false income tax returns, two counts of making a false statement to the United States to get an immigration benefit, and two counts of making false statements in immigration documents. Mr. Fomichev filed a motion to suppress the recordings of his conversations with Ms. Pogosyan and a motion to suppress Ms. Pogosyan’s testimony to the grand jury. He argued that the communications were privileged because the statements were made when the couple was married. Even rewriting this blog, I am blown away by this argument. Needless to say, the government argument that the marital communications privilege does not apply to sham marriages. They argued that because Mr. Fomichev married Ms. Pogosyan for fraudulent purposes, he had no expectation of privacy in their communications.
The Ninth Circuit explained that there are two privileges that arise from a marital relationship: (1) the marital communications privilege; and (2) the spousal testimonial privilege. Let’s talk about the spousal testimonial privilege first because it’s a little less interesting for our purposes. The spousal testimonial privilege prohibits one spouse from testifying against the other in a criminal case during the course of the marriage. The witness-spouse holds the privilege and the privilege ends when the marriage ends. The courts have found that there is a sham marriage exception to the spousal testimonial privilege. In other words, there is no spousal testimonial privilege where the purpose of the marriage was for invoking the spousal testimonial privilege. United States v. Santini, 604 F.2d 603 (9th Cir. 1979). (Cue The Sopranos music).
The marital communications privilege is the interesting one for our purposes. The marital communications privilege protects statements or actions that are intended as confidential communications between spouses made during the existence of a valid marriage; unless the marriage became irreconcilable when the statements were made. Now you might be focusing on the concept of a valid marriage; and you might be thinking this is not a valid marriage. Here is one of the greatest footnotes for immigration attorneys in the history of footnotes:
We recognize that people marry for many different religious, cultural, and social reasons. Marriages that are entered into for practical reasons may ripen into loving relationships, and happily unmarried couples may decide to marry for estate planning purposes, to secure health benefits, or to increase their chances of successfully adopting children, Piper v. Alaska Airlines, Inc., No. 93-35575, 1994 WL 424292 at *2–3 (9th Cir. Aug. 12, 1994). See United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) (“Just as marriages for money, hardly a novelty, or marriages among princes and princesses for reasons of state may be genuine and not sham marriages, so may marriages for green cards be genuine.”) Under our case law, determining the applicability of the sham marriage exception requires a limited inquiry into whether parties married for the purpose of invoking the testimonial privilege. This is consistent with our previous admonitions that courts should be wary of passing judgment on parties’ personal reasons for marrying. See Roberson, 859 F.2d at 1380 (observing that adjudicating the applicability of marital privileges can “involve district judges in difficult and sometimes inappropriate inquiries”).
United States v. Fomichev, 899 F.3d 766, 773 (9th Cir. 2018), opinion amended on denial of reh’g, No. 16-50227, 2018 WL 6252786 (9th Cir. Nov. 30, 2018) (emphasis added). I’m leaving the internal quotations in for your benefit. The Ninth Circuit remanded the case to the district court to determine whether the marriage had become irreconcilable at the time that Ms. Pogosyan started wearing a wire and at the time of her grand jury testimony. As I said in my original post, kudos to audacious advocacy!
United States v. Fomichev, 899 F.3d 766, 773 (9th Cir. 2018), opinion amended on denial of reh’g, No. 16-50227, 2018 WL 6252786 (9th Cir. Nov. 30, 2018)
