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It has been a busy week at the BIA and at the Ninth Circuit. This week we have found out that a wave through admission counts for being admitted in any status for cancellation of removal and that a driving under the influence conviction (or three) can result in no bond being granted for immigration proceedings. In one of the most odious decisions, I have ever read, accompanied children are not entitled to court appointed government counsel when they are in removal proceedings. They can be represented by their mothers. Remember, not everyone’s mother is an immigration attorney. Armed bank robbery is a crime of violence, but car-jacking is not a crime of violence, and second-degree robbery is not a violent felony. And, the FBI can withhold a lot of documents on FOIA requests.
Board of Immigration Appeals Decisions
A Wave Through Admission Counts for Being Admitted in Any Status for Purposes of INA § 240A(a) But Only in the Ninth and in the Fifth – AKA Never Let Your Clients Move to Georgia
The BIA held that a wave through admission constitutes an admission “in any status” for cancellation of removal for lawful permanent residents but only in the Ninth and in the Fifth Circuits. To qualify for cancellation of removal for permanent residents, the noncitizen must show that 1) the s/he has been an LPR for not less than 5 years; 2) s/he has resided continuously in the United States for 7 years after having been admitted in any status; and 3) s/he has not been convicted of an aggravated felony. In this case the noncitizen had entered the United States in October 1991. She had been waved through the port of entry. In April 2003, she adjusted her status, and, in January 2010, she was served with a Notice to Appear for alien smuggling. The question was whether the 1991 wave through admission qualifies as being admitted in “any status.” In a rather confusing decision, the BIA held that the wave through admission qualifies as being admitted in “any status” in both the Ninth Circuit and the Fifth Circuit because those Courts of Appeals have already adjudicated this issue and found that it qualified as an admission in any status. But, the BIA held, “In all other circuits that have yet to address the issue, we hold that aliens must show that the possessed some form of lawful immigration status at the time of admission to establish that they were “admitted in any status” under Section 240A(a)(2) of the Act.
The BIA engaged in a very weird case analysis. First, it noted that both the Ninth and the Fifth Circuit found that the underlying statute 240A(a)(2) was not ambiguous and was not subject to Chevron deference. [Remember under Chevron the federal courts must defer to administrative agencies’ interpretations of federal law where the law may be ambiguous, and the agency’s position seems reasonable]. The BIA then went on to find that the statute was ambiguous and that in other jurisdictions the BIA’s interpretation should be entitled to Chevron deference. That said, I think that practitioners outside of the Ninth and the Fifth should continue to argue that Section 240A(a)(2) is not ambiguous and that this particular BIA decision does not apply.
Matter of Castillo Angulo, 27 I.&N. Dec. 194 (BIA 2018).
Family Ties, Mitigation, and Extenuating Circumstances Generally Do Not Mitigate a Noncitizen’s Dangerousness in Bond Proceedings – Don’t Drink and Drive; Especially if You are not a Citizen
Bad news for our bond cases. “Dangerous aliens are properly detained without bond.” Matter of Urena, 25 I.&N. Dec. 140, 141 (BIA 2009). If you have a client who has a conviction for driving under the influence, make sure to submit tons of evidence of rehabilitation – otherwise the Immigration Court will likely not issue a bond. The BIA clarified that family ties, and mitigating, and extenuating circumstances generally do not mitigate the issue of a noncitizen’s dangerousness in bond proceedings. In this case, the noncitizen is a visa overstay from Lithuania. He has been here since 2000. He has a USC daughter and is married to an LPR. He had three convictions for driving under the influence (DUI) between 2006 and 2007 and was arrested for a DUI in 2017. The IJ originally set bond at $25,000 but ICE appealed the issuance of any bond and the BIA agreed. The noncitizen had a lot of close ties to the United States, but the BIA found that “[c]onsiderations such as a fixed address, a residence of long duration, a history of employment, and other community ties may similarly impact an alien’s risk of flight. However, the respondent was not found to be a flight risk. The issue in this case is whether the respondent is a danger to the community and family and community ties generally do not mitigate an alien’s dangerousness.” Matter of Siniauskas, 27 I.&N. Dec. 207, 209-210 (BIA 2018). The most important sentence in this decision is this: “an Immigration Judge should only set a monetary bond if the respondent first establishes that he is not a danger to the community.”
Matter of Siniauskas, 27 I.&N. Dec. at 210.
Ninth Circuit Decisions
No Right to Court Appointed Government Funded Counsel for Accompanied Juvenile Respondents and The IJ Is Not Required to Inform Respondents About SIJS Eligibility Absent a State Court Order Finding that the Child is a Ward of the State
“Mom, if a kid had cancer, you would not expect that kid’s mother to operate on him, would you?” Those words came out of the mouth of my 16-year-old son at dinner when I was ranting about this Ninth Circuit decision that came down this week. (Yes, my family often discusses recent Ninth Circuit decisions at dinner table – along with sports trivia). As you read about this case, think about a lay person performing cancer surgery on their child and how ludicrous that situation would be – then compare it to what actually happened here. It’s not all that different. The Ninth Circuit, in an odious 52-page decision, found that children in removal proceedings are not entitled to government-funded court appointed counsel. And, that the Immigration Judge was not required to inform the child and his mother of the child’s apparent eligibility for Special Immigrant Juvenile Status (SIJS), because, at the time of the hearing, the child did not have a state court order that could have made him apparently eligible for SIJS. These are the important two holdings of the case. If you want to read more about it, I have gone into some of the striking details of the case.
Here are the facts. Thirteen-year-old C.J. and his mother Maria fled Honduras after C.J. was approached by the Maras and asked to join the gang. C.J. testified that the Maras approached him three times and during the third confrontation, one of the gang members put a gun to C.J.’s head and gave him one day to decide to join the gang. If he did not join the gang then C.J., his mother, his aunt, and his uncles would all be killed by the gang. C.J. and his mother did what any normal person would do – they fled. C.J. and his mother came to the United States and applied for asylum. They were placed in removal proceedings and the case was continued three times to allow the mother to obtain counsel for her son. When the mother went to court and explained that she could not afford counsel, “the IJ told her that she would proceed with the case and that Maria could “represent your son here today.” Maria said that she understood.” C.J.L.G. v. Sessions, No. 16-73801, slip op at 9 (9th Cir., Jan. 29, 2018). Now, here is the part where you think about what my son said, would you have a mother operate on her child who had cancer? Of course not! It’s inhumane. It’s ludicrous. It’s beyond ridiculous. So, why would you have a mother represent her child in a complex asylum proceeding? I have been practicing immigration law for years and I know asylum law quite well. Nonetheless, it would take me a few hours of research to figure out the asylum claim for this child. I know it is there, I just have to figure out how to present it to the court so that the court can grant this child asylum and save his life. Needless to say, the child’s mother was unable to competently represent her child in court, just like I would not be able to competently perform cancer surgery on anyone’s child – let alone my own.
Not surprisingly, the IJ, the BIA and the Ninth Circuit all agreed that Maria was not able to articulate a proper legal theory to grant her child asylum. She could not establish the nexus between the persecution and the protected ground for asylum. C.J. and Maria got a lot of expert representation at the Ninth including the ACLU, the Northwest Immigrant Rights Project, the National Lawyers Guild, and the American Immigration Counsel, plus, a few attorneys from large firms, but it was too late. The Ninth Circuit did an extensive review of whether C.J. was denied his right to due process by going through the test set forth by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319 (1976). Under Mathews the courts must determine what process is due by balancing 1) the private interest at stake, 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards, and 3) the government’s interest, including the burdens of any additional process. C.J.L.G. slip op at 22. The Ninth found that CJ had a private interest at stake because his liberty and “indeed, he alleges his very life – may be at risk.” C.J.L.G. slip op at 25. However, the Ninth found that the risk of erroneous deprivation of his rights and the government’s interests of any additional process outweighed C.J.’s interest. In what might be one of the most odious and stomach churning passages ever written the Ninth Circuit held:
Mandating free court-appointed counsel could further strain an already overextended immigration system. IJs would be tasked with locating and appointing counsel, which takes time. And government attorneys would need to expend additional resources communicating with opposing counsel, filing responses to motions, and preparing what would likely be a longer administrative record – all of which come at considerable expense.
C.J.L.G., slip op. at 40. Right, so let’s send children to their deaths because we don’t want to burden government attorneys with communicating with opposing counsel. Then, in an incredibly nonsensical aside the Ninth Circuit held:
The government also warns of potential unintended consequences from such a mandate: juveniles that could afford attorneys would opt for government-funded counsel instead, and organizations offering pro bono legal services would shift scarce resources elsewhere.
C.J.L.G. slip op. at 39. So, going back to the childhood cancer analogy, we should not have CHIP or emergency MediCare for children with cancer because then St. Jude’s Hospital which provides cancer treatment free of charge for children would shift their resources elsewhere? And, because children with means would not seek the best treatment through their insurance plans but instead would rely on MediCare or CHIP? WHAT????
The Ninth then goes on to justify its horrific decision under the separation of powers doctrine. Yes, you read that right – separation of powers. More specifically, the Ninth found that by requiring the IJs to fulfill Congress’s direction yet demanding no more, they are acting consonant with rather than beyond the scope of Congress’s prescribed policy in an area over which it exercises plenary control. It also satisfies the judiciary’s independent duty to say what the law is by articulating the scope and contours of Congress’s full and fair hearing guarantee. And, third, the court is checking any violations of individual liberty where an IJ fails to provide the amount of process guaranteed by Congress. C.J.L.G. slip op. at 42-43.
Finally, the Court denied C.J.’s claim for SIJS status because he did not have a state court order deeming him to be a dependent of the juvenile court and found that the IJ had no duty to inform Maria and C.J. about SIJS status absent such an order. Then they denied C.J.’s withholding claim and CAT claim because his mother was not able to articulate a judicial theory for CAT or withholding.
There is a lot more to this decision. But, the take away is that children have no right to court appointed government attorneys in removal proceedings. However, there might be a glimmer of hope for unaccompanied minors. The one-page concurrence holds that while the Due Process Clause does not mandate government-funded counsel for an accompanied minor, it might mandate counsel for unaccompanied minors. C.J.L.G. slip op. at 53-54 (Owens, CJ, concurring). If you want to read the case I recommend having a bottle of wine or scotch on hand for when you are done reading.
C.J.LG. v. Sessions, No. 16-73801 (9th Cir. Jan. 29, 2018).
A California Conviction for Carjacking is not an Aggravated Felony Crime of Violence
And now, in the on-going saga of what constitutes an aggravated felony crime of violence thanks to Jayashri and her law students at Stanford, we now know that carjacking under Cal. Penal Code § 215(a) is not a crime of violence – no matter what the prior law held. This case is rather amazing, because there is a 2010 Ninth Circuit decision, Nieves-Medrano v. Holder, 590 F.3d 1057 (9th Cir. 2010) “which squarely held that “a conviction for carjacking under California Penal Code § 215 is categorically a ‘crime of violence’ under 8 U.S.C. § 1101(a)(43)(F). Solorio-Ruiz v. Sessions, No. 16-73085 slip op. at 5 (9th Cir. Jan. 29, 2018). The Ninth Circuit found that the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010) overruled Nieves-Medrano. In Johnson the Supreme Court held that the physical force that a crime of violence entails must be violent force – force that is capable of causing physical pain or injury to another person. The Ninth found that to decide whether California carjacking constitutes a crime of violence under Johnson “we must consider whether every violation of the statute necessarily involves violent force. Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013).” Solorio-Ruiz, slip op. at 7. The Court noted that the level of force required was only force in excess of that required to seize the vehicle, however slight that may be. Solorio-Ruiz, slip op. at 8. So, the moral of this story, is for every case where the client is being charged with an aggravated felony crime of violence argue that the amount of force required for a conviction under California law is not violent force. But, before you get too excited, the Ninth Circuit remanded the case to the BIA to determine whether California carjacking is an aggravated felony theft offense.
Solorio-Ruiz v. Sessions, No. 16-73085 (9th Cir. Jan. 29, 2018).
Armed Bank Robbery is a Crime of Violence
However, just because we can never get enough of figuring out what constitutes a crime of violence, the Ninth Circuit came down with one more crime of violence decision and one more violent felony decision in a non-immigration context this week. First, a conviction for armed bank robbery under federal law is a crime of violence. In a well-argued case, the defendants said that the federal bank robbery statute was not a crime of violence because it can be committed by intimidation. The Ninth rejected this argument because even in its least violent form, it requires an implicit threat to use violent force. The defendants next argued that bank robbery by intimidation does not meet the mens rea for a crime of violence. But, the Ninth Circuit found that the elements of the offense entail the knowing use, attempted use, or threatened use of violent physical force. Finally, the defendants argued that bank robbery is an indivisible offense with three alternative means of commission: 1) by force or violence; 2) by intimidation; or 3) by extortion. They argued that the least violent form of the offense, bank robbery by extortion does not qualify as a crime of violence under the Supreme Court’s decision in Moncrieffe v. Holder, 569 U.S. 184, 190-191 (2013). I love this argument, but the Ninth Circuit did not. The Ninth Circuit found that the statute was divisible with respect to these offenses and that the defendants were convicted of bank robbery by force.
United States v. Kalani, No. 16-15357 (9th Cir. Feb. 1, 2018).
Second Degree Robbery under California Law is Not a Violent Felony
A violent felony is similar in theory to a crime of violence. Under the Armed Career Criminal Act (ACCA) which imposes sentencing enhancements for defendants convicted of violent felonies, the Ninth Circuit held that second degree robbery under California law is not a violent felony. We can use this case by analogizing it to a crime of violence. The ACCA defines a “violent felony” as any crime with a term of imprisonment exceeding one year that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, or involves use of explosives; or (iii) otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These three clauses are known as the “force clause,” the “enumerated clause,” and the “residual clause.” Some of you might remember that in one of Justice Scalia’s last decisions, he held that the residual clause was unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). The issue of whether the same clause in the INA is unconstitutionally vague, is before the Supreme Court and we are awaiting a decision. The case is Dimaya v. Sessions. Anyhow, the issue in this case is whether second degree burglary is a violent felony under the force clause. The statute at issue prohibits “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Cal. Penal Code § 211. The Ninth held that the statute is indivisible and is not a violent felony because it can be committed where the force is only negligently used. So, if you have a client with a PC § 211 conviction, you can argue it is not a crime of violence using this same logic.
United States v. Walton, No. 15-50358 (9th Cir. Feb. 1, 2018).
FOIA Exemptions
The ACLU, the Asian Law Caucus, and the San Francisco Bay Guardian submitted FOIA requests to the FBI for disclosure of documents and data about surveillance and infiltration regarding the Muslim community. Shockingly, the FBI did not comply with the FOIA request and the ACLU, et al filed a law suit against them. The FBI then released 50,000 full or redacted pages and withheld 47,794 pages under various FOIA exemptions. Not surprisingly the parties filed cross-motions for summary judgement on whether the FBI could withhold the documents. The Ninth Circuit found a law enforcement agency only has to establish a rational nexus between the withheld documents and its authorized law enforcement activities. Once the agency makes that showing, the district court can then determine whether disclosure would cause any specific harm. The Ninth Circuit limited this decision to the FBI, “an agency with a clear law enforcement mandate.” They express no opinion about “mixed” agencies with both administrative and law enforcement functions.
ACLU of N. Cal. v. FBI, No. 16-15178 (9th Cir., Feb. 1, 2018).