Immigration court matters arguably present some of the most challenging areas to understand. This is especially so with respect to detention issues, where an individual's liberty is restrained, sometimes indefinitely. In a recent Third Circuit case, Guerrero-Sanchez v. Warden, York County Prison, 2018 WL 4608970 (3d Cir. 2018), a person was held in ICE detention for a staggering 637 days before finally securing release (and only after protracted litigation involving several motions). This case is particularly important for non-US citizens residing in the Third Circuit who are at risk of lengthy detention.
In recent months, many of the more notable immigration developments have concerned the public charge ground of inadmissibility. The first rumblings occurred when the Department of State began implementing new guidelines vitiating the presumptive weight of an approvable I-864 affidavit of support. Even if a petitioner's income met or exceeded 125% of the federal poverty guideline, adjudicators were vested with greater authority to look beyond the affidavit and explore traditional factors in more detail. These traditional factors-health, age, education, income and resources-will undergo more scrutiny in determining whether an immigrant is likely to become a financial burden on the government.
The Ninth Circuit recently issued a precedential case that is instructive, and potentially helpful, to individuals accused of making false claims to US citizenship. In Diaz-Jimenez v. Sessions, No. 15-73603 (9th Cir. 2018), the court confirmed that obtaining private employment did fall within the scope of false claims; however, the court also ruled that for purposes of 1182(a)(6)(C)(ii)(I), a person can only be considered to have made a false claim of citizenship in connection with private employment only when such representation is made on Form I-9. In the case at hand, there was no evidence of an I-9 form to sustain the government's claim that Mr. Diaz-Jimenez misrepresented his citizenship status to secure a job, resulting in the court reversing the BIA's finding and remanding the case.
On September 18, 2018, Attorney General Jeff Sessions issued Matter of S-O-G & F-D-B, 27 I & N Dec. 462 (A.G. 2018), the latest in a trifecta of cases curtailing the authority of immigration judges. Under this new ruling, judges are strictly prohibited from terminating or dismissing cases "for reasons other than those expressly set out in the relevant regulations or where DHS has failed to sustain the charges of removability." As it stands, the regulations set out only a limited number of circumstances under which the court may dismiss proceedings. On motion by DHS government counsel, a judge may dismiss proceedings where
The Board of Immigration Appeals recently issued an important decision that should be of interest to any individual charged with domestic violence, contempt of court, and violating a restraining order in NJ. One common New Jersey statute implicated includes NJSA 2C:29-9b. In Matter of Medina-Jimenez, 27 I & N Dec. 399 (BIA 2018), the court held that the categorical approach does not apply when considering whether violating a restraining order disqualifies a person from applying for cancellation of removal, one of the most sought-after forms of relief in immigration court. Instead, an Immigration Judge is allowed to consider any probative and reliable evidence in connection with what the prosecuting authority has found about the individual's violation. The court must only find two things: one, that the offense resulted in a conviction under INA 101(a)(48)(A); and two, whether the State court that heard the matter determined that "the alien engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection ordered was issued." In short, the court need not engage in a strict categorical analysis to determine whether the elements of the offense in question match the federal rubric under INA 240A(b)(1)(C). As long as the immigration court is reasonably satisfied that there was a finding or admission of guilt along with some measure of punishment, and the "conviction" was based on conduct that violated a restraining order, the individual will not be eligible for cancellation of removal. What the court is essentially saying is that since the deportability section regarding restraining orders does not require a conviction, it would not make sense to require a conviction for cancellation of removal purposes.
Following on the heels of Castro-Tum, the Attorney General has issued another ruling that erodes the judicial independence of our immigration judiciary and further mechanizes the courtroom into an assembly line. In Matter of L-A-B-R, 27 I & N Dec. 405 (A.G. 2018), AG Sessions ruled that continuances may only be granted for "good cause." Instead of allowing judges to exercise their own discretion, the ruling constrains them to push cases forward, prioritizing administrative efficiency over due process and substantive relief.
In a family-based context, the I-130 is the foundation of any permanent residence case. Whether a person is applying for adjustment of status domestically or an immigrant visa abroad, there must be an underlying approved petition for family member to support the file. Conversely, if an I-130 is denied, any application that is predicated upon its approval will be denied. So, for example, if USCIS denies an I-130 filed by a US Citizen for a foreign national spouse, the I-485 application will also be denied. What is less known is that an approved I-130 does not always stay approved. In other words, there are circumstances and situations under which a relative petition may be automatically revoked.
In a previous article, we briefly discussed the differences between administrative closure and judicial termination of an immigration court case. Just last week, Attorney General Jeff Sessions rendered his ruling in Matter of Castro-Tum, 27 I & N Dec. 271 (A.G. 2018). When AG Sessions certified the case to himself a few months ago, the immigration bar was understandably apprehensive, and now it looks like some of those fears have materialized. The decision essentially strips immigration judges of their authority to administratively close cases, when warranted, in the interests of judicial efficiency.
While immigration court hearings are commonly regarded as relatively informal civil proceedings, nothing could be further from the truth. Removal defense practice and effective lawyering, especially in this climate, can be daunting. Even the terminology can be deceptive. "Administrative closure," for instance, is one term that has caused a lot of confusion and for some, maddening frustration.
An interesting case out of the Seventh Circuit came out last week that may be of interest to those undocumented immigrants who may have or who are currently using false or fake social security numbers. The decision, Arias v. Lynch, concerns whether Ms. Arias, who is currently in removal proceedings, is deportable on the basis of her conviction for using a fake social security number to work. In more technical terms, the issue is whether this crime, found in 42 U.S.C. 408(a)(7)(B) constitutes a Crime Involving Moral Turpitude ("CIMT") which would not only pose a ground of deportability but also prevent her from applying for cancellation of removal. Although this case is from a different jurisdiction, the Court's analysis of the issue is quite insightful and trenchant in exposing the arbitrary nature of CIMTs and how even educated attorneys and judges can make critical errors that directly impact the lives of people who have lived here for decades.