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On Tuesday, April 23, 2013, Judge
Reed O'Connor of the Texas District
Court for the Dallas District entered an interim ruling and order in Crane v. Napolitano, a lawsuit brought
by the ICE officer's union President Christopher Crane and other named
individuals against DHS. The lawsuit is
an effort to frustrate DHS's implementation of the Deferred Action for
Childhood Arrivals (DACA) initiative and exercise of prosecutorial
discretion, and to subject those eligible for DACA to detention and removal
proceedings. Apparently, DHS has been
defending the lawsuit on jurisdictional grounds, contending that it is nothing
more than a federal employment dispute.
The Court's April 23 decision postpones issuing a
Preliminary Injunction. Rather, the Judge orders further briefing on the
issues, commenting that DOJ has not presented it's interpretation of INA section 235(b)(2)(A), entitled
"Inspection of Other Aliens," the statute being held up by the ICE
plaintiffs - and apparently accepted by the Judge -- as requiring mandatory
enforcement and precluding the exercise of prosecutorial discretion by DHS. Not
so. In this battle, I stand with DHS
leadership, albeit on the basis of arguments I developed and offer herein.
Having read through the decision of the court, and looked
at the statute closely, I do not see how the interpretation accepted by the
Judge can be applied to detain or place anyone eligible for DACA in removal
proceedings under the statute being cited - at least for long. This is because the statutory section
includes an exception at INA § 235(b)(2)(B)(ii),
expressly providing that it is inapplicable to a person to whom INA § 235(b)(1) applies.
In turn, INA § 235(b)(1)(A)(iii)
exempts from the description of persons who shall be removed a person who establishes "to the
satisfaction of an immigration officer,
that . . .[s/he] has been physically present in the United States continuously for the
2-year period immediately prior to" the officer's determination of
inadmissibility under INA § 235(b)(1)(A). Id. Thus, any putative detainee being
targeted by ICE officers must be allowed an opportunity to demonstrate that
s/he has accumulated more than 2 years continuous physical presence in the U.S.,
and therefore is not properly included in the group to whom the INA 235(b)(2)(A)
applies. See § INA 235(b)(2)(B)(ii).
Indeed, to qualify for DACA,
an applicant must show that s/he has continuously resided in the United
States for at least five years preceding the date of Secretary Napolitano's June 15, 2012 Directive
and was present in the United States on the date of the Directive. Accordingly, every
DACA applicant necessarily must establish more than a 2 year period of physical
presence in the U.S., simultaneously satisfying
the affirmative showing of status required
under subclause (II) of INA § 235(b)(1)(A)(iii).
Therefore, none of the ICE plaintiffs are being diverted
or prevented, as they claim, from acting in compliance with their sworn duty to
detain and place in removal proceedings the "Other Aliens" whom they
determine are seeking admission and not clearly and beyond a doubt entitled to
be admitted. See INA § 235(b)(2)(A).
The somewhat remarkable, and I would argue, unfounded
conclusions reached by the Judge in the absence of an argument on the merits from DOJ, stimulated
my curiosity and impromptu examination of Section 235 of the INA. In my view, the operational consequences addressed
by the District Court are not supported by the statutory scheme itself.
Although INA § 235(a)(1) provides that anyone present in
who has not been not admitted "shall" be deemed an "applicant for admission," INA § 235(b)(1)(A)(i) specifies that the treatment
of such applicants applies to arriving aliens or those described in clause (iii). DACA applicants are not included in either of
In fact, the provision for "Application To Certain
Other Aliens" described in clause (iii) subclause (I) permits the Attorney
General General, in his sole and unreviewable discretion, to designate any or
all of those noncitizens in subclause (II) for
treatment under clause (i) or (ii) of INA§
235(b)(1)(A). As mentioned previously, subclause
(II) covers a noncitizen who has
not been admitted or paroled and who
has not affirmatively shown to
the satisfaction of the officer, continuous physical presence for the 2 year
period prior to the officer's determination of inadmissibility. Western
Hemisphere (Cuban) entrants from countries with which the U.S. has no
diplomatic relations who arrive by
aircraft at a port of entry are not subject to the terms of the mandate to
remove in INA § 235(b)(1)(A).
To my knowledge, no Attorney General has designated that the "applicant for
admission" status is to be extended to someone physically present in the United States
for more than 2 years. Thus, unless the Attorney
General orders that persons determined to have accumulated more than 2 years physical presence be
treated as arriving aliens notwithstanding the determination, once the determination has been made, such
individuals arguably are not subject to INA Section 235, period.
Furthermore, any noncitizen who is treated as being
subject to inspection as an "applicant for admission" under INA § 235(b)(1) may express an intent to apply for asylum or a
fear of persecution under subparagraph (A)(ii) of INA § 235(b)(1) and
will be referred for a credible fear hearing.
In the event of mass detentions of
individuals deemed to be applicants for admission, a greatly increased
number of such referrals certainly would clog the DHS system with respect to the
processing of credible fear interviews.
EOIR would experience a similar impact with respect to review of
credible fear determinations being sought before Immigration Judges.
As for INA§ 235(b)(2), as noted above, subparagraph
(B)(ii) excepts those to whom paragraph (1) applies. Notably, it is paragraph
(b)(2)(A) that contains the language providing that a person seeking admission
who is not "clearly and beyond a doubt entitled to be admitted...shall be detained for a proceeding under
section 240."(emphasis added). The dispute in the
litigation over the interpretation of "shall" in this paragraph really
is a straw man, because the paragraph simply is inapplicable to any qualified
DACA applicant or beneficiary.
I agree that yes, the fact that a person with more than 2
years physical presence is not subject to treatment as an "applicant for
admission" does not necessarily exempt that person altogether from being
served with an NTA and placed in removal proceedings pursuant to the statute.
However, the argument being made by the ICE officers and their attorney Kris
Kobach is that INA § 235(b)(2)(A) applies and is mandatory. Therefore, the
argument goes, there is no discretion not
to detain such individuals and to
refrain from placing them in removal proceedings. That is incorrect.
INA § 235(b)(2)(A) does mandate that the persons to whom it
applies "shall" be detained and processed for removal. But, as
I have demonstrated, that section does not apply to DACA applicants or
contrast, the DACA program is based on the legitimate discretionary choice
being made by Secretary Janet Napolitano and Deputy John Morton not to detain and place them in removal
proceedings and to defer any such removal as a matter of prosecutorial
discretion. The ICE officers may not like that choice, but if INA § 235(b)(2)(A) does not apply, they cannot complain that
they are being forced to act contrary to the statute and in violation of the
oath they took to enforce the INA as they are claiming in their lawsuit.
Moreover, as the District Court itself notes, even if an injunction were
to issue, DHS would not be stripped of its authority and prosecutorial discretion
under other sections of the INA to terminate removal proceedings or take other
actions to prevent DACA applicants and status holders from facing removal.
it is true that the lawsuit appears to be limited to the District Court for the
district in which it was filed. And the DOJ appears to be focused on arguing
that it is in actuality an employment dispute over which the District Court has
no jurisdiction. While I understand
that DOJ may be pursuing a strategy of challenging jurisdiction on the basis
that the plaintiffs complaint is nothing more than a federal employment
dispute, it seems imperative that a comprehensive interpretation of the statute
and authoritative argument - contrary to that being pushed by the plaintiffs -
be provided to the District Court. 
arguments I am making haven't been made, but they are ones that might be made
if the DOJ decides to engage the plaintiffs directly and defeat their efforts
to frustrate the DACA program on it's merits. And if that were to happen,
I believe the plaintiff's position would be exposed as a bogus effort to
achieve the ICE officers' and their attorney Kris Kobach's nativist and
 I wonder whether interested citizens and/or DACA
beneficiaries have standing to present a motion to intervene, or at least file
an amicus brief on behalf of DHS defendants?
The Supreme Court held 7-2 in Moncrieffe
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."
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)]. . . ".
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?" 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.
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).
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)).
Approach Under Moncrieffe
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).
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.
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).
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
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
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."  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.
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
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) . . .
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.
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)."
Categorical Aggravated Felony Determination
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.
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
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
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.
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.
 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.
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.
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.
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
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). 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,
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
the BIA emphasized that "the bar complaint requirement acts as a protection
against collusion between counsel and client to achieve delay in proceedings."
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.
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.
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.
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.
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.
. . . 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
 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.
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?
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.