Weekly Updates: 03/09/2018

This week the Attorney General made two attempts to remake immigration law in his image – nasty, brutish, and short. (Apologies to Thomas Hobbes for taking his quote out of context). Fortunately, the Attorney General’s decisions are countered by at least one good decision in the Ninth Circuit and one good argument in the Ninth Circuit.

Attorney General Decisions

This week started out with the Attorney General issuing a baffling and likely unconstitutional decision (which looks like it was written verbatim by the Center for Immigration Studies,  https://cis.org/Arthur/Expedite-Denial-Baseless-Asylum-Claims) Sessions vacated Matter of E-F-H-L, 26 I.&N. Dec. 319 (BIA 2014). That case held that under the regulations an applicant for asylum, withholding or CAT, at a minimum, “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii).” Matter of E-F-H-L, 26 I.&N. Dec. at 321. The case was ultimately administratively closed to allow adjudication of an immigrant visa petition. Sessions found this case, and ordered it to be reopened, recalendared, and restored to the active docket. I am on a list-serve with the original attorney on the case and she reported that she had no notice of Session’s actions. In fact, the I-601A was recently approved in this case. Here are the important takeaways until this case is overturned by the Circuits:

• Make sure you have a strong prima facie case when applying for asylum at the earliest stages of the immigration court hearings so that you can have a full hearing.
• If you are in immigration court and you need to present your prima facie case, make a motion to clear the court room. The regulations provide that disclosure of asylum proceedings to third parties is unlawful absent written consent of the parties or at the discretion of the Attorney General. 8 C.F.R. § 1208.6. Moreover, an IJ is authorized to hold a closed hearing for the purpose of protecting witnesses, parties, or the public interest. 8 C.F.R. § 1003.27.
• Be wary – it appears that the Attorney General is trying to eliminate administrative closure.
• Finally, even though Matter of E-F-H-L, was overturned, the underlying case, Matter of Fefe is still good law. The Board in Fefe, held that under the regulations, an applicant requesting asylum must be examined under oath and may present evidence on his behalf. Matter of Fefe, 20 I. & N. Dec. 116, 117–18 (BIA 1989).
• Argue that this decision is unlawful under the regulations, the statute, international treaties and the Fifth Amendment to the United States Constitution.Matter of E-F-H-L-, 27 I.&N. Dec. 226 (A.G. 2018).

The week was bookended with the Attorney General issuing a second equally short and baffling decision. This case calls for the submission of briefs addressing the issue of whether being the victim of private criminal activity constitutes a “particular social group” for asylum or withholding. According to the attorney of record, on another list-serve, it is Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014) case (particular social group composed of married women in Guatemala who are unable to leave their relationship). The attorney said that the case was denied by the IJ in Charlotte, appealed to the BIA which reversed on every element including adverse credibility and remanded to the IJ to make findings. The IJ denied again and re-sent it to the BIA saying that under the Fourth Circuit’s decision in Velazquez v. Sessions, A-R-G-C- was no longer good law. Again, the Attorney General seems to be violating the underlying statutes and international treaties with his moves. Remember, that the definition of asylum includes persecution or a well-founded fear of persecution either by the government or by a group that the government cannot or will not control.

Matter of A-B-, 27 I.&N. Dec. 227 (A.G. 2018).

Ninth Circuit

“We think it not too much to ask of IJs and the BIA that they make an explicit adverse credibility finding before deporting someone on that basis.” Dai v. Sessions, No. 15-70776 slip op. at 1 (9th Cir. Mar. 8, 2018). Have I mentioned how much I love Judge Reinhardt, and how inconsolable I will be when he retires? In this case the noncitizen is a citizen of China. He testified that he was beaten, arrested, jailed, and denied food, water, sleep, and medical care because he tried to stop the police from forcing his wife to have an abortion. Neither the IJ nor the BIA made any adverse credibility findings in this case. The Court noted that while the REAL ID Act enacted a variety of changes to the standards governing credibility determinations, the law provides “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on an appeal.” INA § 208(b)(1)(B)(iii) cited in Dai, slip op.at 16. The Court remanded to determine whether the noncitizen was eligible for asylum in an act of positive discretion and ordered the IJ to grant him withholding of removal.

Dai v. Sessions, No. 15-70776 (9th Cir. Mar. 8, 2018).

The Ninth Circuit reaffirmed that California controlled substance laws are divisible as to the identity of the substance and thus, any conviction for a California controlled substance offense is subject to the modified categorical approach to determine whether the underlying substance is one that is prohibited under the Federal Controlled Substances act. The attorneys made a valiant effort in this case. They argued that the Supreme Court’s decision that a person who was selling cocaine when he thought he was selling baking soda did not possess the required mens rea to be guilty of a drug trafficking offense should apply to California law. McFadden v. United States, __ U.S. __, 135 S.Ct. 2298 (2015). They argued that under Cal. Health & Safety Code § 11378 (the statute at issue) defendants can be found guilty of drug trafficking even if they were mistaken about what specific substance was being trafficked, as long as the substance was in fact controlled under California law. They cited a case affirming the conviction of a defendant who sold cocaine but thought he was selling marijuana. People v. Romero, 64 Cal. Rptr. 2d 16 (Ct. App. 1997). I’m not sure how you can make that mistake but…. The attorneys argued under this logic that a person who believed she was trafficking in chorionic gonadotropin (a controlled substance in California but not under the federal Controlled Substances Act) but was in fact trafficking in methamphetamine would violate California law but not federal law. The Ninth Circuit said, “nope.” I think it’s worth a try and should be reargued.

United States v. Verduzco-Rangel, No. 15-50559 (9th Cir., Mar. 9, 2018).