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Lory D. Rosenberg on Appeal Matters


  1. Restricting Judicial Review Would Undermine CIR

    Judical review
    is an essential component of a fair and reasonable system of agency
    adjudication,and no more is this true than in the context of the proposed
    comprehensive immigration reform provisions that would afford lawful status to
    the some 11 million undocumented students, family members, relatives, neighbors,
    employees, employers, armed forces personnel, and other members of the U.S.
    judicial review provisions in S.744 include a mechanism for review of
    individual denials in district court or the court of appeals under the
    Administrative Procedures Act ("APA") standards.   In addition,
    the bill provides for full review of pattern and practice violations and class
    action litigation in the district court, a mechanism that proved to be quite
    important in guaranteeing the legalization rights were observed and honored
    under the Immigration Reform and Control Act (IRCA, 1986).  
    is Grassley 17?
    Grassley 17 amendment is a misguided effort on the Senator's part to curtail
    and deny access to such judicial review for individual beneficiaries of the
    provisions of S. 744, as well as to eliminate the possibility of review of
    practices that have a broader impact on the program overall.
    the Grassley 17 amendment would severely restrict review, providing only:
    review in the district court in DC and in no other district court, and
    review over challenges to the constitutionality of sections of the program and
    implementing regulations.
    short, Grassley 17 would eliminate all judicial review of decisions relating to
    RPI and adjustment of status applications, including those relating to
    Dreamers, agricultural workers, and the spouses and children of all these
    individuals -- other than where the litigation would be brought for the purpose
    of challenging the constitutionality of the statute or the regulations.  
    Why Is Judicial Review Necessary?

    Judicial review is critical to any fair and reasoned implementation and enforcement of statutory provisions.  In the case of the new provisions included in S.744,  the RPI, Dream, and AgJobs classifications require the agency to assess applications and evaluate eligibility using new terms and new standards.   In implementaing new programs such as these, oversights, miswunderstandings and, let's be frank, mistakes are inevitable. 
    According to Grassley 17, if adopted, there will be no way to address an executive branch regulation, policy or practice that
    erroneously denies thousands of eligible people legalization. Gutting judicial review from S. 744 means that there would be no way to
    correct such errors, even if the regulation, policy or practice was manifestly
    inconsistent with the terms of the legalization provisions created by Congress.  Without judicial review, Congress's intent could be thwarted.   
    It is never wise allow an agency employee unfettered adjudicative authority to render a decision that can have such a drastic effect on the future of any individual, let alone 11 million.   Gutting judicial review places far too much unchecked power in the hands of a single
    agency employee, or at the middle management level.  A single error by a
    single agency employee will destroy the once in a life-time opportunity that Congress has
    chosen to make available to the individual.  
    By restricting judicial review to the DC district court
    only, Grassley 17 would be highly unfair to RPI applicants who are unable to
    travel to DC.  Undoubtedly, hundreds or thousands would forego judicial review, an outcome that no democratic, fairminded legislator should encourage or desire.  Moreover, as long as the DC District Court says
    a provision or regulation is constitutional, an individual can be deported even
    if the legalization denial was blatantly wrong under the standards created by
    This is an untenable proposal by Senator Grassley.   As the ACLU reminds us, In our justice system, it would be unprecedented to bar
    judicial review of administrative agencies' decisions involving individual
    interests of this magnitude.  Grassley 17 itself would be unconstitutional because it wouldn't provide review over
    non-constitutional legal claims or even non-systemic constitutional claims, as
    required by US v. St Cyr and other Supreme Court cases.
    Stay tuned for more discussion on the judicial review provisions in S.744, right here, where appeal matters.
    * Appreciation to the ACLU for their analysis and comments in opposition to the Grassley 17.
  2. Appeal Does Matter And Politics Makes Strange Bedfellows by Lory D. Rosenberg, IDEAS Consultation and Coaching LLC

    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
    the U.S.
    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
    these subcategories. 
    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
    particular Texas
    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. [1]
    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
    restrictionist goals.  

    [1] 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?

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

    The Supreme Court held 7-2 in Moncrieffe
    v. Holder,
    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?"[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. 
    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
    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.
    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,

    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.
    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
    at  19-20.
    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.

    [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.

    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.

  4. 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.
  5. 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
    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.

    [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
    [2]  For an in depth discussion of Matter of Assaad, supra, see 8 Bender's Immigration Bulletin 943, IT'S ALIVE:
    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

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