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Lory D. Rosenberg on Appeal Matters

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  1. Moncrieffe v. Holder: It Is (or Must Be) Necessarily So

    The Supreme Court held 7-2 in Moncrieffe
    v. Holder,
    No.
    11-702 (April 23, 2013)
    that, "If a noncitizen's conviction for a mari*juana
    distribution offense fails  to establish
    that the of*fense involved either remuneration or
    more than a small amount of marijuana, the conviction
    is not for an aggra*vated felony under the INA."
    -------------------------------------------------------------------------------------------
     
    The
    Moncrieffe case involves the
    aggravated felony definition of a conviction involving "illicit
    trafficking in a controlled substance," which "includ[es] a drug trafficking
    crime (as defined in section 924(c) of title 18)."  INA § 101(a)(43)(B).
    In turn, 18 U. S.
    C. §924(c)(2) defines "drug trafficking crime" to mean "any felony punishable
    under the Controlled Substances Act [(CSA)]. . . ".  
    The
    issue before the Court in Moncrieffe  v.
    Holder was whether the statutory provisions in the INA requiring removal
    and precluding the Attorney General from granting discretionary relief from
    removal to an aggravated felon, apply to an individual convicted under a state
    statute that prohibits "the social sharing of a small amount of marijuana?"[1] Moncrieffe v. Holder at 1.  Put another way, does INA § 101(a)(43)(B), the
    aggravated felony category for illicit trafficking in a controlled substance,
    necessarily encompass every conviction of
    possession of marijuana with intent to distribute without regard to the amount
    and whether remuneration was involved, and does such a conviction "nec*essarily"
    involve conduct punishable as a felony under the CSA? Moncrieffe at 7.
    The Court held that
    conviction of possession of marijuana with intent to distribute under a state
    statute encompassing conduct that is treated as a federal misdemeanor pursuant to
    an exception under the sentencing section of the Controlled Substance Act,
    cannot be an aggravated felony.  Unequivocally
    endorsing the categorical approach and reaffirming the limited nature of the
    few exceptions articulated in earlier opinions, the Court addresses the
    Government's objections and proposals, dismissing them as exaggerated and
    unfounded.  The Court's opinion strongly
    discourages "mini trials" and other deviations from the categorical
    approach.  Moreover, the Court  appears to adopt a single categorical
    determination  that a conviction is not
    an aggravated felony as dispositive for all purposes in a removal proceeding.
    This blog, containing some
    of the highlights of the Court's opinion, does not purport to offer an
    exhaustive analysis of the subject matter,  nor to constitute a comprehensive practice
    advisory.  Please read the Court's
    opinion in its entirety. 
    The Court's opinion in Moncrieffe v. Holder establishes that to
    constitute an aggravated felony under INA
    § 101(a)(43)(B),  a  state drug conviction must "necessarily" proscribe conduct that is an
    offense under the CSA, and the CSA must "necessarily" prescribe felony
    punishment for that conduct. Moncrieffe
    v. Holder at 6.  Under the
    categorical approach,  the elements in
    the state statute of conviction  must
    correspond point by point to a generic federal defini*tion of a corresponding
    aggravated felony.  The mere fact of a
    conviction for possession with intent to distribute marijuana, standing alone,
    does not reveal whether either remuneration or more than a small amount of
    marijuana was involved. Consequently, without more, one cannot determine
    whether the conviction amounts to an offense that is comparable to a federal
    felony and punishable under the CSA. 
    The
    Supreme Court ruled that rather than assume that any conviction of  marijuana distribution must be a felony
    involving illicit trafficking in  a
    controlled substance,  in which case the
    offender may attempt to demonstrate that the conviction was for a lesser
    offense and not an aggravated felony, the presumption is more properly
    reversed.  Cf. Matter of Castro-Rodriguez, 25 I&N Dec. 698   (BIA 2012),   Moncrieffe
    at 15.  Accordingly, "[i]f a  noncitizen's conviction for a marijuana distribution offense fails to establish  that the offense involved either remuneration
    or more than a small amount of marijuana, it is not an aggravated felony under
    the INA." Moncrieffe, supra. at (emphasis added).
    The
    key phrase in this holding is "non-citizen's conviction . . . fails to
    establish. . ." (emphasis added). 
    Examination of the conviction is determinative; the nature of the
    conviction as defined in the state (or federal) statute and demonstrated by the
    criminal court record is controlling.   As
    the Supreme Court explained, "the INA asks what
    offense the noncitizen was 'convicted' of, 8 U. S. C. 1227(a)(2)(A)(iii), not
    what acts he committed. '[C]onviction' is 'the relevant statutory hook.' 4
    [footnote omitted]" Moncrieffe,
    supra. at 6 (citing Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 16); see United States ex rel. Mylius v.
    Uhl, 210 F. 860, 862 (CA2 1914)).
    Categorical
    Approach Under Moncrieffe
    In
    Moncrieffe, the Supreme Court
    unequivocally has endorsed the propriety of the categorical approach in
    construing the conviction of an offense claimed to constitute an aggravated
    felony.  Following a "categorical
    approach" means determining whether the state offense of conviction is
    comparable in nature to a generic federal offense that implicates an aggravated
    felony offense listed in the INA.  Moncrieffe, supra.  at  4-5 (citing
    Nijhawan v. Holder, 557 U. S.  29, 33-38 (2009); Gonzales v. Duenas-Alvarez, 549 U. S. 183, 185-187 (2007).  
    The
    Supreme Court emphasized strongly that it does not consider the facts
    underlying the particular case, but evaluates whether "the state statute
    defining the crime of conviction" categorically fits within the "generic"
    federal definition of a corresponding aggravated felony. Moncrieffe at 5 (citing Duenas-Alvarez
    at 186 (in turn citing Taylor  v. United States, 495 U. S. 575, 599-600 (1990)).  Indeed, "[w]hether the noncitizen's actual
    conduct involved such facts 'is quite irrelevant.' United States ex rel. Guarino v. Uhl, 107 F. 2d 399,
    400  (CA2 1939) (L. Hand, J)." Moncreiffe at 5.
    The
    Court ruled that the evidence in the record must "'necessarily' involve[] . . . facts equating to [the] generic
    [federal offense]." Shepard v. United
    States, 544 U. S.
    13, 24 (2005) (plurality opinion) (emphasis added). This mention of the
    evidentiary record refers to the "modified categorical approach," an
    examination of the court record permitted when the statute of conviction is
    divisible or ambiguously refers to more than one offense and the specific crime
    of conviction cannot be determined from the elements of the statute alone. Id.  The Court differentiates the outcome in a "hypothetical inquiry" situation, which it overruled
    in Carichuri-Rosendo, emphasizing
    that it's "more focused, categorical inquiry" in this case addresses whether
    the record of conviction of the predicate offense necessarily establishes
    conduct that the CSA, on its own terms, makes punishable as a felony. Id., at
    ___ (slip op., at 16).
    Moreover,
     the Court cautions that when the record
    provides nothing more, "we must presume that the conviction "rested upon
    [nothing] more than the least of th[e] acts" criminalized, and then deter*mine
    whether even those acts are encompassed by the generic federal offense. Moncrieffe,  at 5 (citing Johnson v. United States, 559 U. S. 133, 137 (2010);  Guarino, 107 F. 2d, at 400). Thus, the
    least of the acts covered by the statute of conviction must necessarily constitute an aggravated
    felony.
    Furthermore, the Court
    ruled that not only must the state offense of convic*tion meet the "elements"
    of the generic federal offense defined by the INA, but the CSA must necessarily punish that offense as a
    felony. Moncrieffe, supra, at 10, 13.  The Court stated plainly, "[i]n other words, to satisfy the categorical approach,
    a state drug offense must meet two conditions: It must "necessarily" proscribe conduct that is an offense under the CSA,
    and the CSA must "necessarily"
    prescribe felony punishment for that conduct." Moncrieffe at 6.
    Punishable As A Felony Under
    the CSA
    In  Lopez v. Gonzales, 549 U. S.
    47, 60 (2006),  the Court  ruled that a "state [controlled substance] offense
    constitutes a 'felony punishable under the Controlled Substances Act' only if
    it proscribes conduct punishable as a felony under that federal law." [2] Moncrieffe, supra. at
    3.  Notably,  the CSA includes an exception to the
    punishment of all marijuana offenses as felonies, providing that
    " 'any person who vio*lates
    subsection (a) . . . by distributing a small amount of marihuana for no remuneration
    shall be treated as' a simple drug possessor,
    21 U. S. C. §844, which for the
    Court's purposes means as a misdemeanant [footnote
    omitted]."  Thus, it does not necessarily involve conduct punishable
    as a felony.
    With
    it's April 2013 opinion in Moncrieffe, the
    Supreme Court now has rejected the Government's attempt to characterize a
    low-level drug offense as "illicit trafficking in a controlled substance," and
    thus an "aggravated felony," for the third time in 7 years. Writing for
    the majority, Justice Sotomayor pointed out bluntly that "[O]nce again we
    hold that,

    "the
    Government's approach defies "the 'commonsense conception'" of these terms. Carachuri-Rosendo,
    560 U. S., at ___ (slip op.,
    at 9) (quoting Lopez, 549 U. S., at 53) . . .
    "[s]haring a
    small amount of mari*juana for no remuneration . . . "does
    not fit easily into the 'everyday un*derstanding'" of  "trafficking," which "'ordinarily . . . means some
    sort of commercial dealing.'" Carachuri-Rosendo, 560 U. S., at ___ (slip op., at 9) (quoting Lopez,
    549 U. S.,
    at 53-54). . . . [and]
    "it [is not]sensible that a state
    statute that criminalizes conduct that the CSA treats as a misde*meanor should
    be designated an "aggravated felony."

    Moncrieffe at 21-22.
    As the Court states,
    "[t][he only way to know whether a marijuana distribution offense is 'punishable
    as a felony' under the CSA, Lopez, 549 U. S., at 60, is to know whether
    the conditions described in paragraph (4) are present or absent." Moncrieffe at 9. In the context of a felony punishable
    under the Controlled Substances Act, where the
    state statute covers conduct  that may be
    a felony or  a misdemeanor, but the
    record does not specify the conduct that constitutes the basis of the conviction,
    Mr. Moncrieffe's conviction could correspond to either the CSA
    felony or the CSA misdemeanor.   The Moncrieffe
    Court ruled that ambiguity on this
    point means that the conviction did not "necessarily"
    involve facts that correspond to an offense punishable as a felony under the CSA.
    The Court concluded that "[u]nder the categorical approach, then, Mr. Moncrieffe
    was not convicted of an aggravated felony."  Id. at 9.
    Significantly,
    the Court  acknowledged that
    consideration of the sentencing  exception
    in the CSA may permit some offenders to  avoid
    aggravated felony status by operation of the categorical approach.  At the same time, the Court rejected the Government's
    objection to that under inclusive result as "little more than an attack on
    the categorical approach itself.." Moncrieffe
    at 21.  The Court stated directly that,
    "[w]e prefer this degree of imperfection to the heavy burden of re litigating
    old prosecutions. See supra, at
    15-16. And we err on the side of under inclusiveness because ambiguity in
    criminal statutes referenced by the INA
    must be construed in the noncitizen's favor. See Carachuri-Rosendo, 560 U. S.,
    at ___ (slip op., at 17); Leocal v.
    Ashcroft, 543 U. S.
    1, 11, n. 8 (2004)."
    One
    Categorical Aggravated Felony Determination
    Furthermore,
    the Court's opinion appears to reasonably resolve the applicability of the results
    of the initial categorical assessment in determining statutory eligibility for
    relief from  removal.   Early in the Moncrieffe opinion, the Court refers to a
    related but different circumstance in which it's decision in "Carachuri-Rosendo construed a different
    provision of the INA that concerns cancellation of removal, which also requires
    determining whether the noncitizen has been "convicted of any aggravated felony."
    8 U. S.
    C. §1229b(a)(3).  The Court states  "Our analysis is the same in both
    contexts," strongly suggesting that it finds the initial categorical
    determination binding in all phases of the case. Moncrieffe at 6,  note 4.
    In
    addition, when responding to the government's concerns that the Court's
    endorsement of the categorical approach may result in noncitizens experiencing
    greater latitude under the INA, the Court addresses the relief phase of removal
    proceedings as following naturally from the initial categorical determination
    that a conviction is not an aggravated felony. Appropriately, there is no  distinction between the categorical
    determination already made and the noncitizen's need to establish eligibility for
    relief. 
    Instead,
    the  Court addresses the impact
    of  a noncitizen's ability to avoid
    the  imposition of the aggravated felony
    bars and preclusions after such a categorical determination, ruling that such  treatment "does not mean escaping
    deportation . . . . It means only avoiding mandatory removal.  Moncrieffe at    (citing Carachuri-Rosendo, 560 U. S.,
    at _ (slip op., at 17).   The Court
    recognizes that "[a]ny marijuana distribution offense, even a misdemeanor,
    will still render a noncitizen deport*able as a controlled substances offender.
    8 U. S.
    C. §1227(a)(2)(B)(i)," but that  "the
     noncitizen may seek relief from removal
    such as asylum or cancellation of removal, assuming he satisfies the other
    eligibility criteria. §§1158(b), 1229b(a)(1)-(2)."  Moncrieffe
    at  19-20.
    With
    respect to the nature of the conviction, eligibility for relief appears to be
    presumed by the Court, noting that "those forms of relief are
    discretionary. The Attorney General may, in his discre*tion, deny relief if he
    finds that the noncitizen is actually an active drug trafficker.  . . just as he may deny relief if he
    concludes the negative equities outweigh the positive equities of the
    noncitizen's case for other reasons." Moncrieffe,
    id. at 20-21.
    Beyond
    this potentially far reaching breakthrough in the standard for construing the
    impact of a criminal conviction on eligibility for discretionary relief, the
    Court's opinion reinforces numerous valuable principles that apply to the
    construction of statutory language and application of the categorical approach
    in construing criminal convictions in the immigration law context.  This rich opinion is one well-worth reading
    and studying for your client's benefit.




    [1] Conviction of  an
    offense classified as an  aggravated
    felony not only renders a noncitizen deportable, pursuant to §1227(a)(2)(A)(iii),
    but also ineligible for asylum, and cancellation of removal under  §§1158(b)(2)(A)(ii),(B)(i); §§1229b(a)(3),
    (b)(1)(C), and other discretionary forms of relief from removal.


    [2]
    A noncitizen's conviction of an offense that the Controlled Substances Act
    (CSA) makes punishable by more than one year's impris*onment will be counted as
    an "aggravated felony" for immigration purposes because  a "felony" is an offense for which the
    "maximum term of imprisonment authorized" is "more than one year." 18 U.S.C. §3559(a)(5).   Moncrieffe, supra. at 2.

  2. Appeal Matters


    This is a blog about appeals, and ordinarily, I examine appeals to the Board of Immigration Appeals and in the federal courts and the Supreme Court.
    Today, I write about an appeal to those in another branch of government  - Senator Schumer and the Gang of 8.  It's no secret that comprehensive reform of our immigration laws presents both an enormous challenge and an unique opportunity in relation to  economic, social and humanitarian conditions in the United States.  And the initial reform proposal is expected any day. 
    In anticipation of the announcement, hundreds of thousands of citizens, residents and immigrants have placed their hopes in an appeal to Senator Schumer to ensure that families are permitted to remain together and that the harsh and damaging pattern of family separation, leaving children without one or more of their parents, will finally come to an end.  
    Even more, all over the country voices are raised in an urgent,  heartfelt, humanitarian appeal to Senator Schumer to ensure that any proposal  unequivocally puts an end to the inhumane treatment of non-citizens in detention, namely, the arbitrary and deleterious use of  solitary confinement in immigration detention facilities. Such punitive treatment of civil detainees is only the tip of the ICEburg in a failed detention system that must be thoroughly reformed in favor of alternatives to detention and the discretionary evaluation of each individual with respect to whether he poses any threat to public safety, as well as arrangement for competent legal representation for most detainees.


    The current state of our immigration laws - both in content and the manner in which they are implemented - cries out for change and improvement. And none more so than those aspects related to the safety, family and liberty of those within our borders. Safety concerns are receiving more than enough attention in the context of improving border security. Now it is time to step up for our family and humanitarian values.
  3. Lightening up on Lozada


    Appeal and access to the federal courts is an essential underpinning of agency accountability, insuring that fairness is observed and justice is served in the implementation of United States immigration laws.  As the potential for realization of true immigration reform grows, no desire for legislative simplicity, no concern over excessive enforcement, and no plan for expeditious processing of the greatest number of immigrants, however laudable each of these goals may be, is more important than the right to impartial review, and that .... APPEAL MATTERS
    "Lozada" has come to have its own special meaning
    in immigration parlance, as in "you'll need to do a Lozada," or you
    can't claim ineffective assistance of counsel to support reopening of a case
    for a client who was poorly represented by prior counsel, unless you first file
    a "Lozada motion" first.  It
    also represents a longstanding over- reaction by the Board of Immigration
    Appeals to administrative concerns about the potential for attorney misfeasance
    towards the immigration court and the BIA, and the BIA's opposite under-reaction
    to the actual effects of misfeasance and nonfeasance committed by some attorneys
    towards their clients.
    This by no means is meant to suggest that the many
    dedicated, diligent, and brilliant immigration lawyers who populate this
    important field of law are anything short of outstanding and among the most
    esteemed attorneys.  It is these
    attorneys on whom the burden falls to grapple with the inconceivable blunders
    and often unethical performance of the attorneys who preceded them. Moreover, they
    undertake to do so in the rigid and form- over-content framework of the BIA's controlling
    precedent decisions on ineffective assistance of counsel. 
    Which is why the decision of  Chief Judge Kozinski, writing for a panel of
    the Circuit Court of Appeals for the Ninth Circuit in Correa-Rivera v Holder, No. 08-72258 (9th Cir. 2/6/2013) is
    cause for celebration.    In  Correa-Rivera,
    the panel recognized that under it's jurisprudence,  "[t]hese requirements  'are not rigidly applied, especially when the
    record shows a clear and obvious case of ineffective assistance.' " Id. (citing Rodriguez-Lariz v. INS,
    282 F.3d 1218, 1227 (9th Cir. 2002).  Although
    it appears from the record that the prior attorney's nonfeasance in failing to
    file an application for relief was blatant, the panel found it unnecessary to
    determine whether the Lozada requirements
    should be waived on that basis.  Instead,
    they found that the BIA erred in holding that Rivera failed  to comply with the third Lozada requirement because he did not provide "probative
    evidence" that he made a bar complaint and simply asserted that he had
    done so.
    The BIA is especially strict about Lozada motions, and
    requires strict adherence to the 3 procedural requirements announced its
    precedent decision in Matter of Lozada,
    19 I. & N. Dec. 637 (BIA 1988).[1]  Underlying this mandate, is the BIA's  unwavering belief that "[the
    requirements] . . . were necessary to provide a basis for evaluating the many
    claims presented, to deter baseless allegations, and to notify attorneys of the
    standards for representing aliens in immigration  proceedings. Matter of Lozada, supra,
    at 639-40.
    In the 25 years
    since pronouncing these requirements,  the BIA hasn't budged in routinely denying any
    appeal or motion that does not include evidence that each and every one of the
    3 prongs in Lozada has been fully satisfied.   What is more,  in 2003, the BIA again endorsed wholeheartedly
    the "further policy reasons for the 'complaint' requirement of Matter
    of Lozada, [noting] . . . that such a filing increases our confidence in
    the validity of the particular claim, reduces the likelihood that an
    evidentiary hearing will be needed, and serves our long-term interests in
    monitoring the representation of aliens by the immigration bar." Matter of Assaad, 23 I&N Dec. 553 (BIA 2003) (citing
    Matter of Rivera -Claros, 21 I.
    & N. Dec. 599, 605 (BIA 1996) (emphasizing the BIA's concern about
    attorney-client collusion and its ''long-term interests in policing the immigration
    bar'').[2]
    There,
    the BIA emphasized that "the bar complaint requirement acts as a protection
    against collusion between counsel and client to achieve delay in proceedings."
    Id. 
    Ironically, this rationale was asserted during a period in which the
    BIA docket was so backlogged that appeals were lingering for 3-10 years without
    adjudication, and immigration judges in many locations were scheduling cases1-2
    years ahead due to grossly overcrowded local dockets.  Hardly an atmosphere likely to trigger a litigant's
    temptation to stall, or in which the BIA would need to quash "collusion"
    between a client and his attorney to create delay.
    As for the BIA's confidence in the validity of the
    particular claim, it is undisputed that the right to counsel in immigration
    matters is most often addressed in the breach. 
    Indeed. in light of Lozada, the substantive merits of the claim of
    ineffective counsel may never be reached, and we may never be assured that counsel's
    representation was effective.     
    The
    BIA concedes that ineffective counsel can impede the measure of fundamental
    fairness, or due process, to which a respondent in removal proceedings is
    entitled. The BIA, however, unquestionably is more concerned about a litigant's
    compliance with the 3 procedural prongs, which purportedly preserve the
    integrity of the hearing process, than with actual ineffective assistance that
    may be beyond dispute and glaringly reflected on the face of the record.   Indeed, in Matter
    of Assaad, supra, the complaint
    of ineffectiveness turned on prior counsel's failure to appeal, which was
    apparent on the face of the record, but the motion was denied for failure to
    comply with Lozada. 
    In
    the Ninth Circuit's decision, the Court took issue with the fact that the
    "BIA faulted Correa-Rivera for failing to provide 'correspondence from the
    Bar indicating receipt of the complaint,'" stating that "Lozada doesn't
    require that a petitioner present 'probative evidence' of having submitted a
    complaint to the bar, much less correspondence from the bar acknowledging such
    a complaint."  The Court
    distinguished the third Lozada
    requirement from the two preceding it, and stressed that "Lozada suggests
    only that the motion 'should reflect' whether such a complaint has been filed.
    19 I. & N. Dec. at 639."  This
    is most significant because it is distinct from prior circuit court decisions
    differing with the BIA's reading of Lozada. 
    Previously, the BIA has acknowledged that "some courts
    have taken a "broad" view of the Lozada requirements, holding that we
    should apply a flexible approach by not mandating strict adherence to all of
    the Lozada steps in every case." 
    To date, the BIA has dismissed such ideas, stating that it would
    "apply such circuit law as is appropriate in each circuit."  The result: in any circuit that has not had
    the occasion to address the issue and recommend or require flexibility, the BIA
    will persist in its strict application.
    The
    Ninth Circuit's decision, however, is not merely based on a "broad
    view" as opposed to a more strict reading of the Lozada standard.  It is based
    on an interpretation of the literal language 'should reflect,' introduced by
    the BIA itself, and adopted repeatedly by the BIA in its precedent decisions
    over a 25 year period.  This decision is
    well-worth reading for a number of reasons, 
    including that the prior attorney acknowledged his ineffectiveness in
    promising but failing to file an application,  and that Correa-Rivera included a copy of the
    bar complaint he filed with the papers he filed with the BIA.  
    Accordingly,
    the next move is for the BIA to take with respect whether a credible statement
    that a bar complaint has been filed sufficiently "reflects"
    compliance with the third Lozada requirement.  The alternative?  The Ninth Circuit's invitation to the BIA to
    modify its precedent.   One hopes that
    before undertaking any such modification, the BIA reflect on the underlying
    purpose for accommodating claims of ineffective assistance of counsel, be mindful
    of it's own understanding that "[i]t is clear that Matter of Lozada provides
    a measure of protection for aliens who are prejudiced by incompetent counsel,"
    and hesitate before adding more procedural baggage to a verifiable, public
    action such as the filing of a bar complaint.





    [1] "First
    . . .  the alien must submit an affidavit
    detailing the agreement that was entered into with counsel with respect to the
    actions to be taken and the representations counsel made or did not make in
    this regard.  [Second] . . . the alien
    must inform counsel of the allegations of ineffective assistance and give him
    or her the opportunity to respond. 
    Finally, we concluded that the alien must file a complaint with the
    appropriate disciplinary authorities, such as a state bar, with respect to any
    violation of counsel's ethical or legal responsibilities, or adequately explain
    why no filing was made."  Id. at
    640.
    [2]  For an in depth discussion of Matter of Assaad, supra, see 8 Bender's Immigration Bulletin 943, IT'S ALIVE:
    A NONCITIZEN'S RIGHT TO COMPETENT COUNSEL BEFORE THE EOIR AND USCIS AFTER MATTER
    OF ASSAAD (June 2003).


     
    -------------------------------------------------------
    Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a unique immigration law consulting and mentoring practice providing high-achieving immigration lawyers, leaders and businesses with comprehensive analysis, strategy, expert opinion, and collaboration, so they can successfully obtain visa approvals and lawful permanent residence, defend against removal, and win appeals for their clients despite complex and challenging circumstances.  Ms. Rosenberg is a national speaker and former adjunct professor, who served from 1995-2002 as an appellate immigration judge on the Board of Immigration Appeals. She is co-author of the leading treatise, Immigration Law and Crimes, was a featured columnist for Benders Immigration Bulletin (2002-2007, and has extensive experience as a legal analyst, practitioner, writer, trainer, non-profit director, litigator, policy advocate, and decision-maker involving immigration law and policy. Her website is www.ideaswithlory.com.



  4. JURISDICTIONAL QUERIES AND THE WAIVER REVIEW CONUNDRUM

    Appeal
    and access to the federal courts is an essential underpinning of agency
    accountability, insuring that fairness is observed and justice is served in the
    implementation of United
    States immigration laws.  As the potential
    for realization of true immigration reform grows, no desire for legislative
    simplicity, no concern over excessive enforcement, and no plan for expeditious
    processing of the greatest number of immigrants, however laudable each of these goals may be, is
    more important than the right to impartial review, and that .... APPEAL MATTERS
     
    Have you found yourself
    wondering recently about the state of federal appellate jurisdiction over
    discretionary waiver decisions?  A
    cautionary tale at best, and before venturing into new territory, policymakers
    would be well-advised to be cognizant of the gaps and issues that plague the
    present scheme and remain unresolved. 
     In Shabaj v. Holder, 2013 U.S.
    App. LEXIS 975 (2d Cir. 2013), the Court of Appeals for the Second
    Circuit held that "the district court lacked jurisdiction to review the
    United States Citizenship and Immigration Services' discretionary decision to
    deny Plaintiff-Appellant's application for a waiver of inadmissibility under 8
    U.S.C. § 1182(i)(1) because judicial review of such decisions is available only
    for "constitutional claims or questions of law raised upon a petition for
    review filed with an appropriate court of appeals."
    The Circuit Court affirmed
    the ruling of the District Court on jurisdictional grounds for two reasons
    arising out of the particular facts and posture of this individual case.  The petitioner's appeal is a challenge by an
    individual who initially was denied admission to the United States based on misrepresentation
    involving a false passport used in an effort to enter under the Visa Waiver
    Program, and then subsequently denied a 212(i) waiver under 8 U.S.C. §
    1182(i)(1) that would have allowed a grant of adjustment of status based on his
    valid marriage. It also constitutes a challenge by one treated as a participant
    in the Visa Waiver Program, albeit an illegitimate one,   who
    was not afforded a removal hearing before an Immigration Judge, and therefore,
    was unable to seek review of the waiver he sought at the Board of Immigration
    Appeals or before the court of appeals.
    In this posture, the
    petitioner was subject to the bar precluding appeal of the waiver denial found
    in 8 U.S.C. § 1182(i)(1), and could not avail himself of the exception to the general
    preclusion of review over discretionary determinations available under 8 U.S.C.
    § 1252(a)(2)(D).  As the Second Circuit's
    decision in Shabaj points out, such an exception is available in the case of
    any "constitutional claims or questions of law" raised by a petition for review
    to the court of appeals, because the key limiting  language in (D) reads: "upon a petition for
    review filed with an appropriate court of
    appeals."  U.S. App. LEXIS 975 supra. at 9 (emphasis added).  Shabaj was unable to file such a petition to
    the court of appeals  because he was
    barred from presenting his case in a removal hearing  that would form the predicate for such review.
    The problem here is the
    collision of disparate jurisdictional preclusions on three different fronts - a
    preclusion of review of the agency's denial of a waiver, coupled with a second
    preclusion of a hearing before an immigration court in which a waiver
    adjudication would be subject to review in the context of an agency appeal, and
    the denial of access to a later-in-time statutory exception to yet a third
    preclusion of review of discretionary decisions in the court of appeals.   
    What does this tell us about
    the nature of the enforcement adjudication scheme intended to secure removal of
    immigration law violators?   How does the
    exception in subsection (D) apply in light of the limitations on Visa Waiver Program
    participants which preclude their being afforded a removal hearing in
    proceedings before the immigration court? 
    Although one might argue that the benefit  of an expeditious nonimmigrant admission
    without having to obtain a formally issued visa justifies giving up the right
    to a removal hearing in the event the participant is found inadmissible or violates
    the terms of his nonimmigrant stay,  the
    participant's eligibility for more permanent immigration benefits continues to
    exist.  Moreover, the waivers applicable
    in that context implicate not only the participant's success in acquiring a new
    status, but  the potential hardship to a
    spouse or close family member who is a lawful resident or citizen of the United States.
    For that matter, it is not
    only beneficiaries of the Visa Waivers Program who may be adversely affected. In the absence of removal  proceedings that ultimately lead to judicial
    review over any constitutional questions or questions of law arising in the
    adjudication of waivers by USCIS and the AAO,  there is no opportunity to insure the  accuracy and integrity of the
    adjudication.  Given DHS's general prosecutorial
    discretion to determine whether to initiate such removal proceedings before
    EOIR, there seems to be no way that an applicant might obtain review at any
    level beyond the AAO, much less invoke subsection (D).   Does
    this mean that DHS simply may refuse to issue a Notice To Appear once USCIS and
    the AAO deny a waiver accompanying an application for adjustment of status,
    thus foreclosing the path to appellate review and precluding federal court
    review of a constitutionally or legally deficient waiver denial?
    Likewise, Shabaj's
    appeal  raises the question whether any
    recourse exists to challenge a USCIS decision to deny him a waiver of
    inadmissibility under 8 U.S.C. § 1182(i)(1) that is erroneous as a matter of
    law, not withstanding the statutory preclusion n review of the denial.  How does the prohibition on review of waiver
    decisions in subparagraph 2 of § 1182(i) square with congressional intent to
    provide general review authority over errors of law that is plainly articulated
    in other parts of the Immigration and Nationality Act such as subsection (D)?  
    The Second Circuit's comment
    that "Although Shabaj is ineligible to reopen his removal proceedings and
    file a petition for review because of his participation in the Visa Waiver
    Program, see 8 U.S.C. § 1187(b), we
    do not mean to preclude a petitioner who is otherwise eligible to reopen
    proceedings from attempting to reopen those proceedings in order to raise legal
    challenges to hardship rulings by the AAO" is surely of little comfort to
    Shabaj.  And it also should raise
    concerns about the credibility and workability of these intertwining
    provisions, motivating examination of the rationale and practical realities
    underlying our system of removal, access to benefits, and review. 
    -------------------------------------------------------
    Lory D. Rosenberg is an award-winning attorney and owner of IDEAS Consultation & Coaching, LLC, a
    unique immigration law consulting and mentoring practice providing
    high-achieving immigration lawyers, leaders and businesses with comprehensive
    analysis, strategy, expert opinion, and collaboration, so they can successfully
    obtain visa approvals and lawful permanent residence, defend against removal,
    and win appeals for their clients despite complex and challenging
    circumstances.  Ms. Rosenberg is a
    national speaker and former adjunct professor, who served from 1995-2002 as an
    appellate immigration judge on the Board of Immigration Appeals. She is co-author
    of the leading treatise, Immigration Law and Crimes, was a featured
    columnist for Benders Immigration Bulletin (2002-2007, and has extensive
    experience as a legal analyst, practitioner, writer, trainer, non-profit
    director, litigator, policy advocate, and decision-maker involving immigration
    law and policy. Her website is www.ideaswithlory.com.
     
     
     

  5. About Lory D. Rosenberg

    Lory D. Rosenberg is an
    award-winning attorney and owner of IDEAS Consultation & Coaching,
    LLC, a unique immigration law consulting and mentoring practice providing
    high-achieving immigration lawyers, leaders and businesses with comprehensive
    analysis, strategy, expert opinion, and collaboration, so they can successfully
    obtain visa approvals and lawful permanent residence, defend against removal,
    and win appeals for their clients despite complex and challenging
    circumstances.  Ms. Rosenberg is a national speaker and former adjunct
    professor, who served from 1995-2002 as an appellate immigration judge on the
    Board of Immigration Appeals. She is co-author of the leading treatise, Immigration
    Law and Crimes, was a featured columnist for Benders Immigration Bulletin
    (2002-2007, and has extensive experience as a legal analyst, practitioner,
    writer, trainer, non-profit director, litigator, policy advocate, and
    decision-maker involving immigration law and policy. Her website is www.ideaswithlory.com.
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