Top of the Ninth: Aug 17, 2018

We once again had a very busy week in the Ninth. And, the Attorney General issued a decision that will likely result in a new form of immigration litigation – that of the interlocutory appeal. But, the good news, is that the standard for a continuance substantively remains the same – the noncitizen must show good cause. When I read the Attorney General’s decisions, I often think of the line by Shakespeare, “It is a tale told by an idiot, full of sound and fury, signifying nothing.” Macbeth, Act V Scene V. Of course, the Attorney General’s decisions do not signify “nothing,” but they are full of sound and fury. The Ninth Circuit issued two decisions defining a crime of violence and holding that Mr. Dent (of the Dent v. Holder motions) is not a U.S. citizen. The Ninth Circuit also allowed a noncitizen to sue personally (a Bivens action) an ICE attorney who had forged documents that made it seem that the noncitizen was ineligible relief from removal. (Beyond disgusting!) The Supreme Court of California issued a great decision on Special Immigrant Juvenile cases finding that the parent that abandoned the child only had to receive notification of the proceedings and that the child’s motivation in obtaining SIJS is irrelevant. Unfortunately for the rest of the country, this case is only good in California. But, other states can look at the language and try to lobby their legislatures to copy what California has done. On to the cases!

Attorney General

The Attorney General Reiterates the Standard for a Continuance and Suggests that the BIA Should Grant Interlocutory Appeals When an Immigration Judge Grants a Continuance

This past week the Attorney General (AG) may have changed the practice of immigration law as it relates to obtaining continuances for our clients. We may be looking at a lot of interlocutory appeals. I am using conditional language because I am not sure how this decision is going to play out. The AG suggested that the Board of Immigration Appeals (BIA) should grant interlocutory appeals when an Immigration Judge (IJ) grants a continuance and DHS disagrees with the grant. Historically, the BIA has disfavored interlocutory appeals, but I think it is going to become part of the process when a noncitizen requests a continuance. The good news is that the substantive rules for granting continuances are the same. The AG does not overturn any precedential opinions about continuances; he just clarifies the standard. But, he says it in a REALLY! LOUD! VOICE! I am afraid that some adjudicators might hear the sound and the fury of the decision but will fail to read it carefully and might misinterpret it.

I think the most important aspect of this decision might be the introduction of interlocutory appeals. I personally needed to do a little research on this issue, because interlocutory appeals are so rare, in order to understand the changes that Sessions is envisioning to immigration litigation. The BIA has repeatedly held that “[t]o avoid piecemeal review of the myriad questions that may arise in the course of proceedings before us, we do not ordinarily entertain interlocutory appeals.” Matter of M-D-, 24 I.&N. Dec. 138, 139 (BIA 2007). The BIA historically only entertains interlocutory appeals where it is necessary to address important jurisdictional questions regarding the administration of immigration laws or to correct recurring problems in the handling of cases by Immigration Judges. Id. That is all going to change. Since I anticipate that DHS will be filing a ton of interlocutory appeals, it is important to understand the process.

Here is how it will work. First, the IJ will issue a decision granting a continuance and then DHS will file a Form EOIR 26, Notice of Interlocutory Appeal with the BIA. The BIA will not issue a briefing schedule, rather DHS can file a brief with the Notice of Appeal or can file the brief shortly thereafter. Once the noncitizen receives the Notice of Appeal, s/he should file a response brief “as soon as possible” after the Notice of Appeal is filed. There is no briefing schedule. See, BIA Practice Manual Section 4.14. I anticipate that there will be a lot of due process violations under this procedure. So, remember that you can always appeal the denial of a continuance.

Now for the substantive changes for a continuance – there really aren’t any. The AG stated, “I hold that an immigration judge should assess whether good cause supports a continuance by applying a multifactor analysis, which requires that the immigration judge’s principal focus be on the likelihood that the collateral relief will be granted and will materially affect the outcome of the removal proceedings.” Matter of L-A-B-R-, 27 I.&N. Dec. 405, 406 (A.G. 2018). That is really what the case is about. And, as I said, that has been the standard forever. However, whoever wrote this decision seems very angry. I hate to cherry-pick lines, but this one is particularly offensive. “And the use of continuances as a dilatory tactic is particularly pernicious in the immigration context.” L-A-R-B-, 27 I.&N. Dec. at 407. Particularly pernicious!

The AG recognizes the traditional standard for analyzing a continuance: 1) DHS’s response to the motion; 2) whether the underlying visa petition is prima facie approvable; 3) the noncitizen’s statutory eligibility for adjustment of status; 4) whether the noncitizen’s application for adjustment merits a favorable exercise of discretion; and, 5) the reason for the continuance and other procedural factors. Matter of Hashmi, 24 I.&N. Dec. 785, 790 (BIA 2009); quoted with approval, L-A-B-R, at 408. The AG recognized that the BIA has since extended the Hashmi factors to continuances for other forms of relief. See, Matter of Rajah, 25 I.&N. Dec. 127 (BIA 2009) (employment-based visas); see, Matter of Sanchez Sosa, 25 I.&N. Dec. 807 (BIA 2012) (U visa petitions). The AG does not overturn these decisions and continuances still exist in all of these matters where the noncitizen can establish good cause.

The AG then goes on to define what the factors are for a “good cause” determination that the adjudicator should grant a continuance. The two main factors in determining whether there is good cause to grant a continuance are: 1) the likelihood that the noncitizen will receive the collateral relief (fair enough) and, 2) whether the relief will materially affect the outcome of the proceedings (again, I can’t argue). The AG then says that the Immigration Judge should look at these other factors too: 1) has the noncitizen exercised reasonable diligence in pursing relief; 2) what is DHS’s position on the motion; 3) the length of the requested continuance; and 4) the procedural history of the case. L-A-B-R-, 27 I.&N. Dec. at 413. However, the most important factors are the probability that the collateral proceeding will succeed and will materially affect the outcome of the proceeding. L-A-B-R-, 27 I.&N. Dec. at 415.

There are a few very interesting holdings in this case. First, the AG notes that while DHS’s position is important, “immigration judges need not treat as controlling DHS’s consent to, opposition to, or failure to take a position on a motion for a continuance.” L-A-B-R-, at 416 (emphasis added). That line might be critical to our representation of our clients in proceedings. Second, the AG found that in Hashmi, the BIA incorrectly held that compliance with an Immigration Judge’s completion goals is not a proper factor in deciding whether to grant a continuance. Rather, the AG found that the immigration judge may consider the number of continuances previously requested and the proposed continuance’s impact on the “efficient determination of the case.” L-A-R-B, 27 I.&N. Dec. at 417.

The AG noted a few circumstances in which a continuance would not be appropriate. First, where the noncitizen is seeking a provisional waiver from USCIS where the noncitizen must consular process. A continuance is not appropriate, because the noncitizen is ineligible for relief while the proceedings are pending. The AG held that a continuance would not be appropriate where the noncitizen is seeking post-conviction relief. The AG also noted that the Immigration Judge will need an evidentiary submission by the noncitizen which should include copies of the relevant submissions in the collateral proceedings such as supporting affidavits. In other words, we need to submit everything related to the collateral proceedings.

Finally, the AG noted that the Immigration Judge should state his reasons for granting a continuance either on the record or in a written decision. Here is the other important sentence: “The absence of any reasoned explanation for the grant of a continuance may, were the Board to entertain an interlocutory appeal, leave the Board no choice but to vacate the order granting the continuance if evidence supporting good cause is not clear from the record.” L-A-B-R-, 27 I.&N. Dec. 418-419.

It is important to note that the decision is completely silent about what happens when DHS requests a continuance. The language in the decision very carefully uses the term “respondent” or alien” and never uses the term “moving party” or “opposing party.” How many times have we seen DHS request a continuance to get conviction records, to get biometrics, to file a response to a motion filed by the noncitizen or even request a continuance to get the file? The decision is silent on these issues. I wonder if the AG or his staff ever stepped foot into an immigration court room.

Matter of L-A-B-R-, 27 I.&N. Dec. 405 (A.G. 2018).

Ninth Circuit

The Different Standards for Acquisition or Derivation of Citizenship for Adoptees Does Not Trigger Equal Protection Concerns, and an Arizona Conviction for Third-Degree Escape is Categorically Not a Crime of Violence

In a case that will never go away, the Ninth Circuit held that the different standards for the acquisition or derivation of citizenship for adoptees does not violate the equal protection clause, and, in this case, there was no evidence of a due process violation. Finally, the Ninth Circuit held that a conviction for third-degree escape is categorically not a crime of violence and because the statute is so clear, there is no need to look at the case law interpreting the statute because it was so clearly not a crime of violence.

Sazar Dent (yes, Dent as in a Dent motion) is a native and citizen of Honduras. In 1981 he was admitted to the United States when he was thirteen-years-old on the basis of his pending adoption by a U.S. citizen named Roma Dent. When a child is adopted by a U.S. citizen, the adoptive parents must file a Form N-600 to naturalize the child. By contrast, a child who is the natural-born child of a U.S. citizen automatically acquires citizenship and both an adopted child and a natural-born child of a person who naturalizes automatically derives citizenship. Needless to say, Mr. Dent never naturalized. His mother filed the paperwork but, Mr. Dent had a difficult childhood and periodically ran away and never appeared for the naturalization interviews. He applied again for naturalization as an adult, but again did not appear for the interview. In 2003, Mr. Dent was convicted of two crimes in Arizona, possession or use of narcotics and third-degree escape. DHS charged that he was removable for having been convicted of an aggravated felony (third degree escape) and with having been convicted of a controlled substance offense. The Immigration Court and the BIA found that Mr. Dent was removable, and the case went to the Ninth. The Ninth remanded the case to the District Court for a new hearing on his citizenship claim. The District Court found that Mr. Dent was not a U.S. citizen and Mr. Dent appealed the case to the Ninth once again.

First, the Ninth found that Mr. Dent had standing to bring the case. An individual has third-party standing when the party has a close relationship with the person who possesses the right and there is a hinderance to the person’s own ability to protect his or her own interests. In this case, Mr. Dent had a close relationship with his adoptive mother and because his mother died several years ago he met the hinderance requirement.

Second, the Ninth found that the different requirements for adoption and naturalization did not violate the Fifth Amendment’s Equal Protection Clause. Okay, this part is pretty interesting. Mr. Dent argued that because an adoptive parent must file for naturalization for an adoptive child it is a violation of equal protection. By contrast, Mr. Dent pointed out that the natural-born children of U.S. citizen parents automatically acquire citizenship and the adopted and natural-born children of noncitizens who later naturalize automatically derive citizenship from their parents. It is only adopted children of U.S. citizens whose parents have to go through a second step and apply for the child’s naturalization for that child to acquire citizenship. The Ninth Circuit assessed the situation and determined that in this case the appropriate standard to review if this law violates the Equal Protection Clause is the rational basis standard.

Remember there are three separate standards to review an Equal Protection Clause argument: rational basis, heightened scrutiny, and strict scrutiny. To survive rational basis review, the statute must be “rationally related to a legitimate government purpose.” Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir. 2011). The statute is presumed to be constitutional and the burden is on the moving party to “negative every conceivable basis which might support it.” Id. It’s a very hard standard to meet. To survive intermediate scrutiny the law must serve an important government objective and be substantially related to achieving the objective. Intermediate scrutiny is generally related to gender-based discrimination. Craig v. Boren, 429 U.S. 190 (1976). (Thank you, Ruth Bader Ginsburg who represented the ACLU, in this case). Finally, strict scrutiny requires the government to prove that there is a compelling state interest behind the challenged policy and the law or regulation is narrowly tailored to achieve its result. The courts use strict scrutiny where the law or government actions discriminate on the basis of race, national origin, religion, or alienage. United States v. Carolene Products Co., 304 U.S. 144 (1938).

The Supreme Court recently clarified that immigration cases where the noncitizen raises an Equal Protection claim, are not automatically analyzed under the rational basis test. Rather, the courts must first determine if the noncitizen belongs in a protected class. For example, where the noncitizen was denied an immigration benefit because of gender the courts must use the intermediate scrutiny analysis. Sessions v. Morales-Santana, __ U.S. __, 137 S. Ct. 1678 (2017). Unfortunately, for Mr. Dent, the Ninth found that an equal protection claim based on adoption did not place him in a protected class and he was subject to the rational basis test. Needless to say, the Ninth dismissed his Equal Protection claims. They found that there was a rational basis for Congress to make different rules for citizenship for adopted children.

Mr. Dent next made a Due Process claim. He claimed that INS violated his due process rights by acting with deliberate indifference. Apparently to show deliberate indifference the person must show 1) an objectively substantial risk of harm; 2) a showing that the officials were subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and that the official actually drew that inference or that a reasonable official would have been compelled to draw that inference. In this case, the Ninth found that because INS repeatedly tried to contact Mr. Dent and his mother to schedule him for a naturalization interviews there was no deliberate indifference. That said, you have to admire the attempt to bring a due process claim by Mr. Dent’s attorneys.

After finding that Mr. Dent is not a U.S. citizen, the Ninth analyzed whether a conviction for third-degree escape under Arizona law is categorically not an aggravated felony as a crime of violence, which would statutorily preclude him from obtaining cancellation of removal for lawful permanent residents. The Arizona statute provides:

A person commits escape in the third degree if, having been arrested for, charged with or found guilty of a misdemeanor or petty offense, such person knowingly escapes or attempts to escape from custody.

The Ninth held that it is clear that Arizona third-degree escape does not necessarily involve “physical force” required for a crime of violence. Looking at the statute itself, the Ninth held that it was not necessary to look at the cases involving this statute because the statute itself clearly was categorically not a crime of violence. The Ninth remanded the case to the BIA to determine if Mr. Dent qualified for cancellation of removal for non-lawful permanent residents. Mr. Dent was still in proceedings because of the controlled substance conviction. It is not the ideal outcome but, it is not too bad.

Dent v. Sessions, No. 17-15662 (9th Cir. August 17, 2018).

Assault with a Deadly Weapon is Categorically an Aggravated Felony Crime of Violence

The Ninth Circuit held that a Nevada conviction for assault with a deadly weapon is categorically an aggravated felony crime of violence. Ricardo Guizar-Rodriguez is a native and citizen of Mexico. In 1998, he was convicted in Nevada of battery committed with the use of a deadly weapon. Mr. Guizar-Rodriguez was placed in removal proceedings and was removed for having been convicted of an aggravated felony crime of violence. In 1999, he illegally reentered the United States. In 2004, he was removed once again, based on his illegal reentry. After his second deportation he came back. In 2016, a Nevada grand jury indicted him for unlawful reentry. Mr. Guizar-Rodriguez moved to dismiss the indictment on the ground that his initial deportation was unlawful because the battery committed with a deadly weapon was not an aggravated felony. The District Court did not agree, and Mr. Guizar-Rodriguez appealed to the Ninth. The Ninth found that the underlying offense was categorically a crime of violence.

As the Supreme Court has repeatedly reminded us, for a state crime to be a crime of violence, the physical force required is violent force that is capable of causing physical pain or injury to another person. Johnson v. United States, 559 U.S. 133, 140 (2010). The Ninth Circuit in this case, looked to the history of the term “deadly weapon” in Nevada. The Ninth went back to a case from 1870 that defined a deadly weapon as a weapon that is either inherently dangerous or meets the functional test. Under the functional test, a deadly weapon is any instrumentality that is used in a deadly manner. Rodriguez v. State, 407 P.3d 771 (Nev. 2017). And, under the inherently dangerous test, a deadly weapon is any instrument that if used in the ordinary manner contemplated by its design and construction will or is likely to cause a life-threatening injury or death. Zgombic v. State, 798 P.2d 548 (Nev. 1990). The Ninth noted that this definition is nearly identical to the definition of a deadly weapon in California “and we have already determined that assault with a deadly weapon under California law is a crime of violence. United States v. Guizar-Rodriguez, No. 16-10507, slip op. at *9 (9th Cir. August 17, 2018) citing with approval United States v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009). So, the Ninth Circuit essentially reaffirmed in dicta that a California conviction for assault with a deadly weapon is categorically a crime of violence.

Having spent an inordinate amount of time in my practice briefing the issue of whether a conviction for Cal. Penal Code § 245 (aggravated assault) is a crime of violence, I have to disagree with the Ninth’s dicta on this issue. I am going to go deep into the weeds on this issue for California practitioners. For those not interested in the history of the California aggravated assault statute, feel free to skip this paragraph. Okay, for those of you remaining, in 2009, the Ninth Circuit held that a conviction for assault with a deadly weapon under Cal. Penal Code § 245(a) was categorically a crime of violence. United States v. Grajeda, 581 F.3d 1886 (9th Cir. 2009). Back in 2009, Cal. Penal Code § 245(a) included the crimes of assault with a deadly weapon or assault with force likely to cause great bodily injury. In 2012, the California legislature changed the statute and divided it into four parts. Cal. Penal Code § 245(a)(1) is assault with a deadly weapon and Cal. Penal Code § 245(a)(4) is assault with force likely to cause great bodily injury. It’s a different statute! Plus, if you do a Duenas Alvarez analysis, there is case law where people have been prosecuted under Cal. Penal Code § 245(a)(4) for conduct that truly is not violent. It’s an uphill argument, but if you have a client who has been convicted of Cal. Penal Code § 245(a)(4), I think you can claim that the dicta in this case does not apply.

Welcome back to those who skipped the previous paragraph. The Ninth held that “even the least touching with a deadly weapon or instrument is violent in nature” and when the weapon is designed to cause life-threatening injury or death, i.e. when it satisfies the inherently dangerous test, because it “demonstrates at a minimum the threatened use of actual force.*.*.*. Moreover, a battery committed with the use of an instrument that is used in a deadly manner, i.e. a weapon that satisfies the functional test, would certainly involve the use of violent force.” Therefore, a conviction for battery with the use of a deadly weapon is a crime of violence. United States v. Guizar-Rodriguez, slip op at *9-10. Bottom line do not let your clients plead to assault with a deadly weapon.

United States v. Guizar-Rodriguez, No. 16-10507 (9th Cir. August 17, 2018).

A Noncitizen May Sue Personally Sue ICE Assistant Chief Counsel Where the Attorney Forged Documents to Render the Noncitizen Ineligible for Relief

In a case that you may remember from the past, an ICE attorney forged a document to render the noncitizen ineligible for cancellation of removal. Hilary Han, Ignacio Lanuza’s attorney, detected the forgery, and filed a Motion to Reopen with proof of the forgery. The BIA reversed, and Mr. Lanuza was granted non-lawful permanent resident cancellation of removal. Mr. Lanuza filed a Bivens motion to personally sue the attorney and the Ninth Circuit held that the case could go forward.

Jonathan Love, an attorney out of Seattle, forged a Form I-862 that purported to be a document signed by Ignacio Lanuza showing that he accepted voluntary departure in 2000. The Form I-826 was critical in determining that Mr. Lanuza was statutorily ineligible for cancellation of removal for non-lawful permanent residents because he had not established the ten years of physical presence in the United States prior to being placed in removal proceedings. Mr. Lanuza is a native and citizen of Mexico. In 1996, he entered the United States without inspection when he was seventeen-years-old. He is married to a U.S. citizen and has two U.S. citizen children. In July 2008, he was placed in removal proceedings. On May 6, 2009, he appeared in immigration court for a Master Calendar Hearing and said that he planned to file for cancellation of removal for non-lawful permanent residents. At the Master Calendar Hearing, Jonathan Love stated that Mr. Lanuza was statutorily ineligible for relief because in 2000 he had signed a Form I-826 accepting voluntary departure to Mexico. On May 11, 2009, at the individual hearing, Mr. Love submitted the purported Form I-826 showing that Mr. Lanuza had signed the form agreeing to voluntary departure in 2000. Based on this form, the IJ ordered Mr. Lanuza removed and on November 15, 2011 the BIA affirmed.

Here is where the case gets great, in December 2011, Mr. Lanuza went to Hilary Han who discovered that the Form I-826 was forged. It was allegedly signed in 2000, but the header on the form referred to the Department of Homeland Security. Now stop and think for a moment… DHS, was created in reaction to September 11^th (2001). DHS did not even exist until 2003 so there is no way that the form could have been valid. To cover all bases, Mr. Han sent the document to a forensic examiner who found it to be a forgery. Mr. Lanuza filed a motion to reopen based on the forged document and on January 9, 2014, he was granted permanent residency based on an approved cancellation case. I probably would have missed this issue, so kudos to Hilary Han.

Mr. Love was criminally prosecuted, sentenced to thirty days in jail, one year of supervised release, and 100 hours of community service. He was barred from practicing law for ten years and ordered to pay Mr. Lanuza $12,000 in restitution (estimated attorney’s fees). But, Mr. Lanuza then filed a Bivens complaint against Mr. Love. The Ninth Circuit held that a Bivens remedy is available here where a government attorney intentionally submitted a forged document in an immigration proceeding to completely bar an individual from pursuing relief to which he was entitled. “Failing to provide a narrow remedy for such an egregious constitutional violation would run afoul of our mandate to enforce the Constitution.” Lanuza v. Love, slip op. at *31.

This case ends with an explanation of the power of prosecutors:

At its core, this case is about a lie, and all the ways it was used, over several years, to defraud the courts. Government attorneys are given great power, and with that power comes great responsibility. These attorneys represent the United States, and when they act, they speak for our government.

Lanuza v. Love, No. 15-35408 slip op. at *31 (9^th Cir. August 14, 2018).

Supreme Court of California

A Child Applying for Special Immigrant Juvenile Status Only Must Show that the Absent Parent Received Notice of the Proceedings and the Child’s Motivation in Applying for Relief are Irrelevant

Because this blog is only about immigration law, this is the first time I have ever blogged about a state case. However, because this case is about Special Immigrant Juvenile Status (SIJS) it is important for immigration practitioners to know about it. The Supreme Court of California, in an excellent decision, held that a child who was applying for SIJS based on abuse, abandonment, or neglect, by one parent, only had to show that the absent parent received notice of the proceedings. The child did not have to join the absent parent to the suit. The Supreme Court of California importantly also held that the motivations of the child in applying for SIJS are irrelevant to the determination.

Bianka M. was born in 2002 in Honduras to Gladys. In 2005, Gladys moved to the United States and left Bianka in the care of an older daughter. Gladys frequently called Bianka and set half of her weekly income back to Honduras for Bianka’s care. Bianka’s father, Jorge, left Gladys after Bianka was born and refused to have any relationship with Bianka. In 2012, Bianka left Honduras and came to the United States to escape the violence of Honduras and to be with her mother. Bianka was detained at the border and was then released to Gladys. Bianka applied for SIJS.

To qualify for SIJS the child must show that 1) the child is a dependent of a juvenile court, in the custody of a state agency by court order, or is in the custody of an individual or entity appointed by the court; 2) the child cannot reunify with one or both parents due to abuse, neglect, or abandonment, or a similar basis found under state law; and, 3) it is not in the child’s best interest to return to her home country or the home country of her parents.

Bianka applied for SIJS and the Superior Court found that it could not adjudicate the case without joining Jorge as a party to the action. The Superior Court reasoned that joinder was required because Bianka’s request to award sole custody to Gladys affected Jorge’s potential custody rights. The Superior Court also concluded that Jorge’s joinder was required in order to make a finding that reunification with Jorge was not viable because of his abandonment. The Court of Appeals affirmed the Superior Court’s decision.

The Supreme Court found that the child only had to establish that she served her father with notice of the proceedings. There was no requirement that he had to be joined to the proceedings. Among other problems with the joinder requirement, was that the California courts did not have personal jurisdiction over Jorge. Finally, the Supreme Court found that the motivation of the child in seeking classification as a special immigrant juvenile was irrelevant. In other words, the courts cannot deny a child’s request based on its conclusion that the child’s motivation in filing for relief to obtain immigration relief. “A child’s immigration-related motivations for seeking state court findings bear no necessary relationship to his or her need for relief from a parent’s abuse, neglect or abandonment.” Bianka M. v. Superior Court of Los Angeles County, slip op. at *22. This holding was based, in part, on a 2016 amendment to Section 155 of the California Code of Civil Procedure to clarify that a court must issue findings relevant to SIJS status, if factually supported, regardless of the child’s perceived motivations in invoking the court’s jurisdiction. Here is hoping, that other states follow California’s lead.

Bianka M. v. Superior Court of Los Angeles County, No. S233757 (Supreme Ct. Cal. August 16, 2018).