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It has been quite a week in immigration law: everything from the 7-eleven raids, to the reanimation of DACA, to the end of TPS for Salvadorans, to not wanting immigrants coming in from Shithole countries. It’s only been one week! Plus, the Supreme Court granted cert in an immigration case. First the Supreme Court case.
Challenge Those NTAs!
Today the Supreme Court granted cert to determine whether an NTA must list the time and place of a hearing in order to trigger the stop time rule for cancellation of removal. Pereira v. Sessions, No. 17-459. This case is out of the First Circuit where the First held that the NTA that does not list the time and place of the hearing is nonetheless effective to end the period of continuous physical presence. The First Circuit deferred to the BIA’s decision in Matter of Camarillo, 25 I.&N. Dec. 644 (BIA 2011) and accorded the decision Chevron deference. Fonseca Pereira v. Sessions, No. 16-1033 (1st Cir. July 31, 2017). There is a split in the circuits on this issue; unfortunately, the Ninth Circuit has also accorded Chevron deference to the BIA on this issue. Moscoso-Castellanos v. Lynch, 803 F.3d 1079 (9th Cir. 2015). Anyhow, keep challenging those NTAs!
Now, back to the Ninth Circuit.
Another Adam Walsh Act Fail
First, we have more bad news for our Adam Walsh cases. For those of you that don’t remember, the Adam Walsh Act (AWA) prohibits US citizens and LPRs who have been convicted of certain sex offenses against children from petitioning for relatives unless the petitioner can show that s/he poses “no risk” to the beneficiary. The AWA was enacted in 2006 and has been the subject of a lot of (very unsuccessful) litigation at the Board of Immigration Appeals. This case, in the Ninth, is no exception. First, the Ninth Circuit held that the AWA applies to cases that were filed before but not adjudicated by the date of enactment of the AWA. Here the Petitioner was convicted in 2000 for violation of Cal. Penal Code § 288(a) (a lewd and lascivious act with a child under the age of 14), petitioned for his wife and her children in 2005, on July 27, 2006, the AWA was enacted, and on July 28, 2006, the visa petitions were approved. USCIS ran an additional background check and then denied the case under the AWA. The Petitioner argued that the application of the AWA to his petition violated the ex post facto clause of the U.S. Constitution. (An ex post facto law punishes actions retroactively – criminalizing conduct that was legal at the time that it was performed). The Ninth Circuit said, “No.” The ex post facto clause is an issue in criminal cases, not in civil cases and immigration is civil law. I think the Ninth Circuit made a mistake here and should have used a retroactivity analysis under Landgraf and Montgomery Ward. Well, someone can make that argument the next time, or the petitioner can ask for rehearing en banc and make that argument.
The Petitioner also challenged USCIS’s standards for adjudicating petitions. First, he argued that USCIS wrongly uses a “beyond any reasonable doubt” standard in making its no risk determination. Second, he argued that USCIS employs an “impermissible presumption of denial.” Third, he argued that USCIS was required to go through the notice and comment process before implementing its standards. And, finally, he argued that USCIS acted ultra vires to the statute in enacting these standards. The Ninth Circuit stated they lack jurisdiction to review any of those claims because each claim challenges how the Secretary of DHS has exercised his or her “sole and unreviewable discretion to adjudicate immigrant visa petitions. We will keep trying to fight these arguments. The case is Gebhardt v. Nielsen, No. 15-56072 (9th Cir. Jan. 9, 2018).
Expedited Removal and the Right to Counsel
The Ninth Circuit has held that where a noncitizen is put in expedited removal proceedings and argues that they were denied the right to counsel, they must establish prejudice under the Fifth Amendment Due Process clause in order to get relief. The noncitizen was not a USC, not an LPR, and (arguably) had been convicted of an aggravated felony. Accordingly, he was placed in expedited removal proceedings under INA § 238(b). The noncitizen had counsel and DHS knew that he was represented by counsel. In fact, his attorney had filed a U visa petition for him that was pending. The noncitizen argued that the DHS officers violated his right to counsel by pressuring him into conceding removability without the advice of counsel, even after he told them he did not want to give a sworn statement without his attorney present. But, the Ninth said he did not establish prejudice and that he did not show that the denial of his U visa was because of the expedited removal. Curiously, no one seemed to argue that the underlying conviction was not an aggravated felony.
The dissent in this case (yes, there was a strong dissent) argued that the noncitizen’s right to counsel was violated and under Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) no prejudice was required to vacate the final order of removal. The dissent in this case can be helpful. The case is Gomez-Velazco v. Sessions, Nos. 14-71747 and 14-73303 (9th Cir. Jan. 10, 2018).
DACA Reanimation
I usually don’t review District Court decisions, but this case is fun and it is important. Late in the evening on Tuesday, January 9, 2018, Judge William Alsup (a Clinton appointee) from the Northern District of California issued his decision in Regents of the University of California v. U.S. DHS, No. C 17-05211 (N.D. Ca. Jan. 9, 2018). Here is the important information, the Court issued a preliminary injunction pending final judgment. Namely, the Government was ordered to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments with the following exceptions: 1) new applications from applicants who never before received deferred action need not be processed; 2) no advance parole for DACA recipients; and 3) the Government may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.
Here is what makes the case fun! As usual, Donald Trump’s tweets were cited in the decision. The Court noted that it would be unable to send this case to the circuit courts by March 5, 2018, because the administrative record was incomplete. Among other things that the Plaintiffs “were entitled to learn” was whether rescission of DACA was contrived to give the administration a bargaining chip to demand funding for a border wall in exchange for reviving DACA. “A presidential tweet after our hearing gives credence to this claim.” The Court then noted that another possible claim is “racial animus.” The Court then wrote the following footnote:
On December 29, 2017, President Trump tweeted: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration, etc. We must protect our Country at all cost!” (DKT. No. 227-2), Plaintiffs separately request judicial notice of this tweet. Defendants object to judicial notice on various relevancy grounds, but do not argue that it is not properly subject to judicial notice under FRE 201 (Dkt. Nos. 227, 230). Plaintiffs’ request is accordingly granted.
Regents of the University of California v. US DHS, slip op. C 17-05211 et al, at 44, n. 18.
Then, to make the decision even better, the Court reviewed the “Balance of Equities and the Public Interest” and again quoted Trump. I’m just going to let you enjoy what the Court said:
On provision relief motions, district judges must consider whether (or not) such relief would be in the public interest. On this point, we seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended. In September, President Trump stated his support for DACA tweeting: “Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!….” He has also called upon Congress to ratify DACA tweeting, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” (App. 1958).
For the reasons DACA was instituted, and the reasons tweeted by President Trump, this order finds the public interest will be served by DACA’s continuation (on the conditions and exceptions set out below).
Regents of the University of California v. US DHS, slip op at 45.