CASE LAW

SCOTUS Limits Ability To Reopen & Rescind In Absentia Removal Orders

by
return to sender

The Supreme Court issued a decision limiting the ability of noncitizens to reopen and rescind in absentia orders of removal issued against them in their June 14, 2024 decision, Campos-Chaves v Garland, 602 U.S. ___ (2024). The relevant portions of the Court’s decision are quoted below. You can read the entire decision at the Supreme Court’s Website. FACTS OF THE CASE The facts of the case involved noncitizens who received a defective NTA that lacked the time and place of the hearing. Each later received a notice of hearing containing the time and place of the hearing.  Mr. Campos-Chaves moved to rescind his in absentia removal order because the Department of Homeland Security never gave him a valid NTA with notice of the date and time of his hearing. SCOTUS said that because DHS later gave him a “Notice of change in time or place of proceedings,” that counts as proper notice and cures the defective NTA, so he could not reopen his deportation order. THE COURT’S DECISION With this decision, the Court backtracked from two recent decisions that had emphasized the importance of a complete NTA in immigration proceedings. In Niz-Chavez and Pereira , SCOTUS said that an NTA must include a wide range of information in a single document, including the removal charges, the facts to support those charges, notice of the right to be represented by an attorney, and the time and place of removal proceedings. The dissenting opinion noted this unexplained departure from their prior precedent. The decision also seems to contradict BIA case law. Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022) (a respondent may timely object to a deficient NTA prior to the closing of pleadings and need not show any prejudice caused by the missing time and place information); Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024) (DHS cannot remedy a defective NTA by filing an I-261). Indeed, in dicta, the majority opinion states that: “[a]lthough an alien who receives only paragraph (2) notice must still attend the hearing or face in absentia removal, he can raise issues regarding incomplete notice at that time.”   GOING FORWARD Respondents can and should continue to object to proceedings taking place based on a defective NTA. They can cite Matter of Fernandes and Matter of Aguilar Hernandez to preserve a timely objection to the defective NTA. Niz-Chavez and Pereira remain good law and are not overruled by this decision as to the stop-time rule. So a statutorily compliant NTA is still required in order to trigger the stop-time rule for cancellation of removal.                          The Court’s Decision: To initiate the removal of an alien from the United States who is either “inadmissible” under 8 U. S. C. §1182 or “deportable” under §1227, the Federal Government must provide the alien with “written notice” of the proceedings. §§1229(a)(1), (2). Two types of “written notice” are described in paragraphs (1) and (2) of §1229(a): Paragraph (1) provides that the alien be given a written “ ‘notice to appear,’ ” or NTA, which must set out, among other things, “[t]he time and place at which the proceedings will be held.” Paragraph (2) states that “in the case of any change or postponement in the time and place of such proceedings,” the agency must provide “a written notice” specifying “the new time or place of the proceedings” and “the consequences” of failing to attend. An alien who fails to attend a hearing despite receiving notice “shall be ordered removed in absentia” if the Government “establishes by clear, unequivocal, and convincing evidence” that “the written notice” was provided and that “the alien is removable.” §1229a(b)(5)(A). Three scenarios permit the rescinding of an in absentia removal order, one of which is when an alien “demonstrates that [he] did not receive notice in accordance with paragraph (1) or (2)” of §1229(a). §1229a(b)(5)(C (ii). In these consolidated cases (one from the Fifth Circuit, and two from the Ninth), aliens Esmelis Campos-Chaves, Varinder Singh, and Raul Daniel Mendez-Colín, each moved to rescind his in absentia order of removal on the ground that he did not receive proper notice of the removal hearing. In each case, the Government provided an initial NTA, but the NTA did not specify the time and place of the removal hearing. Eventually, the Government provided each alien with a notice of hearing under §1229(a)(2) which set out the specific time and place of the removal hearing. None of the aliens showed up for his hearing, and each was ordered removed in absentia by an Immigration Judge. Each then sought to rescind the removal order, arguing that he did not receive a proper NTA under §1229(a)(1). The Fifth Circuit considered and denied one of the petitions, but the Ninth Circuit granted the other two. Held: Because each of the aliens in this case received a proper §1229(a)(2) notice for the hearings they missed and at which they were ordered removed, they cannot seek rescission of their in absentia removal orders on the basis of defective notice under §1229a(b)(5)(C)(ii). Pp 7–16. (a) These cases turn on whether Campos-Chaves, Singh, and Mendez-Colín can “demonstrat[e]” that they “did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” §1229a(b)(5)(C)(ii). The Government reads that provision to permit rescission only when the alien did not receive notice of the hearing he failed to attend. Campos-Chaves, Singh, and Mendez-Colín, on the other hand, urge a reading of the provision’s word “or” that would distribute the phrase “did not receive notice in accordance with” across “paragraph (1) or (2).” They argue that because each can “demonstrat[e]” that he “did not receive” an NTA, they each can seek rescission of their in absentia removal orders. Pp. 7–8. (b) The Government’s provision of a single notice under either paragraph (1) or (2) defeats rescission under §1229a(b)(5)(C)(ii). The word “ ‘or’ ” is “ ‘almost always disjunctive.’ ” Encino Motorcars, LLC v. Navarro, 584 U. S. 79, 87. Thus, §1229a(b)(5)’s ordinary meaning … Read more

Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023)

by

Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent. [Full Decision] Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) At a 2019 hearing before the Immigration Judge, DHS indicated that it did not have the respondent’s file and sought a continuance to locate it. The respondent did not object but asked that the proceedings move forward as quickly as possible to obtain review of USCIS’ decision denying his most recent I-751 petition to remove the conditions on his residence. The Immigration Judge continued the case for one month. At the next hearing, DHS still had not located the respondent’s file. The Immigration Judge asked the DHS attorney if she was moving to terminate for failure to prosecute the case, and the DHS attorney indicated that she was. The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” The respondent also contended that terminating removal proceedings would leave him without an avenue for review of USCIS’ denial of his Form I-751, which at that point he had been seeking for nearly a decade. The Immigration Judge granted DHS’ motion to terminate the removal proceedings on the ground that the court lacked jurisdiction tointerfere with DHS’ prosecutorial discretion. The respondent timely appealed. The Board found that Congress has provided that a decision by USCIS to terminate anoncitizen’s conditional permanent resident status is reviewable in removal proceedings by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D). Under current regulations, this is the only permitted avenue for review. See 8 C.F.R. § 1216.3(a); cf. 8 C.F.R. § 1216.5(f) (2023) (“No appeal shall lie from the decision of the director [to deny a waiver of the joint filing requirement]; however, the alien may seek review of such decision in removal proceedings.”). Where the basis for USCIS’ denial of a Form I-751 petition is the denial of a waiver of the joint filing requirement, the Immigration Judge reviews the denial of the waiver as well. See 8 C.F.R. § 1216.5(f); Matter of Bador, 28 I&N Dec. at 642 (collecting authority); see also Matter of Herrera Del Orden, 25 I&N Dec. 589, 593–95 (BIA 2011) (discussing the scope of the Immigration Judge’s review of the denial of an applicant’s request for a waiver of the joint filing requirement). Because DHS does not have unilateral authority to cancel a Notice to Appear once removal proceedings have commenced, DHS’ motion to terminate constituted a request that the Immigration Judge exercise his authority to terminate the proceedings. See Matter of G-N-C-, 22 I&N Dec. at 284. The Immigration Judge has authority to adjudicate this request “based on an evaluation of the factors underlying the [DHS’] motion.” Id. The Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so. Instead, the Immigration Judge should have adjudicated the motion after considering the underlying facts and circumstances. Because the Immigration Judge mistakenly concluded that DHS’ motion divested him of jurisdiction, he did not consider the respondent’s interest in obtaining review of USCIS’ denial of his Form I-751 petition. The respondent’s interest in having an Immigration Judge review USCIS’ denial of a Form I-751 is significant. Regulations provide that when USCIS terminates conditional permanent resident status by denying a Form I-751, there is no appeal from that decision to any higher authority within USCIS, and the noncitizen must be placed in removal proceedings. 8 C.F.R. § 1216.3(a). At that point, the denial of the Form I-751, and any associated waivers, is reviewable only by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D); 8 C.F.R. §§ 1216.3(a), 1216.5(f); Matter of Bador, 28 I&N Dec. at 642. The appeal was sustained and the case was remanded to the Immigration Judge to review the Respondent’s petition to remove conditions on his residency. See full decision here.

Respondent With A Pending Appeal of a Criminal Conviction Does Not Have a Criminal Conviction

by

The Board of Immigration Appeals published a decision holding that when a respondent has a pending appeal under section 460.30 of the New York Criminal Procedure Law the criminal conviction his not yet final and therefore the respondent has not been “convicted” as defined by INA §1101(a)(48)(A). Matter of Brathwaite Matter of Brathwaite, 28 I&N Dec. 751 (BIA 2023) The respondent filed a motion to terminate his removal proceedings. The Department of Homeland Security (“DHS”) opposes the motion. The Immigration Judge had denied the motion and found the respondent removable and the Board had originally affirmed. The Board of Immigration Appeals was remanded the case by the Second Circuit Court of Appeals to determine the finality of the respondent’s criminal convictions under section 101(a)(48)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(48)(A) (2018), and to reassess whether heis removable as charged. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Facts of the Case The respondent is a native and citizen of Trinidad and Tobago and a lawful permanent resident of the United States. DHS served the respondent with a notice to appear alleging that on January 31, 2018, he was convicted of multiple offenses including identity theft, larceny, and possession of stolen property in violation of New York law. DHS charged the respondent with removability under sections 237(a)(2)(A)(ii) and 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), (iii) (2018), for having been convicted of two or more crimes involving moral turpitude and an aggravated felony, respectively. The respondent filed a motion to terminate, arguing that his convictions were not final for immigration purposes under section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), because a New York court had granted his motion for leave to file a late notice of appeal under section 460.30 of the New York Criminal Procedure Law. The Board’s Decision Pursuant to the Board’s interpretation of section 101(a)(48)(A) of the INA, 8 U.S.C. § 1101(a)(48)(A), as affirmed by the Second Circuit, a conviction does not support removability until it is final, meaning that the right to direct appellate review has been waived or exhausted. See Brathwaite, 3 F.4th at 552–53 (affirming the Board’s conclusion in Matter of J. M. Acosta, 27 I&N Dec. at 431, that in enacting section 101(a)(48)(A), Congress intended to incorporate the finality rule of Matter of Ozkok, 19 I&N Dec. 546, 552 n.7 (BIA 1988)). Determining whether direct appellate review has been waived or exhausted requires analysis under the criminal procedure laws of the convicting State. Despite reversing the rule in Matter of J. M. Acosta, the Second Circuit did not reach whether other limits on finality relating to a request for a late-filed appeal under section 460.30 of the New York Criminal Procedure Law might be imposed. See Brathwaite, 3 F.4th at 553–54. The BIA recognized DHS’ concerns about delays in the New York criminal process and differing outcomes nationally depending on the criminal procedure statutes in different States. However, the Board found that DHS’ proposal is at odds with the court’s explanation of New York’s appellate process set forth in Brathwaite v. Garland. The Second Circuit clearly stated that a motion to file a late notice of appeal under section 460.30, once accepted by the New York court, is deemed the equivalent of a timely-filed direct appeal. Id. The Board found no authority supporting a qualification on the characteristics of a direct appeal as of right. A motion for leave to file a late notice of appeal “must be made with due diligence after the time for the taking of such appeal has expired.” N.Y. Crim. Proc. Law § 460.30(1) (McKinney 2019). A New York court that has granted such a motion has therefore necessarily concluded that the defendant proceeded with due diligence, even if the motion was filed the maximum 1 year and 30 days after the conviction. We cannot substitute our judgment in that regard. In removal proceedings, DHS has the burden of establishing by clear and convincing evidence that a respondent who has been admitted to the United States is deportable. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A) (2018); 8 C.F.R. § 1240.8(a) (2023); accord Matter of Thomas and Thompson, 27 I&N Dec. 674, 690 (A.G. 2019). Thus, because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. NOTE The BIA’s analysis applies only to section 460.30 of the New York Criminal Procedure Law based on its classification as a direct appeal of right under controlling precedent. Such an appeal is distinct from discretionary appeals beyond the first appeal of right in New York. See generally N.Y. Crim. Proc. Law §§ 450.90, 460.10(5), 460.20 (McKinney 2023). Full Decision

When Is A Government “Unable or Unwilling” To Protect Someone

by

When is a Government “unable or unwilling” to protect? The Board of Immigration Appeals (BIA), issued a precedential decision on asylum law, providing more guidance on how asylum applicants can meet the requirements of showing that a government is “unable or unwilling” to protect them from harm by private actors. Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023). When An Asylum Applicant Doesn’t Report Their Harm/Mistreatment The Board starts by addressing the common situation where that an Applicant argues that the the government in their native country is unable or unwilling to protect them but they never reported the harm or mistreatment that they suffered because the government would not have been able or willing to do anything. The Board cites to two First Circuit cases and states that an Applicant who didn’t report the mistreatment because the government is corrupt has to provide something more than their own subjective belief that the police are corrupt to establish unable or unwilling. “[A] failure to report mistreatment—even if based on the [respondent’s] subjective belief that authorities are corrupt—is not, without more, sufficient to show that” the government is unable or unwilling to protect the respondent. Morales-Morales v. Sessions, 857 F.3d 130, 135 (1st Cir. 2017) (collecting cases, and affirming the determination that the respondent failed to demonstrate government authorities were unable or unwilling to protect him); accord Vila-Castro v. Garland, 77 F.4th 10, 13–14 (1st Cir. 2023). Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023). The Board is clear however, that an Applicant is not required to have reported the harm. “Failure to report harm is ‘not necessarily fatal’ to a claim of persecution if the applicant ‘can demonstrate that reporting private abuse to government authorities would have been futile’ or dangerous. Matter of C-G-T-, (quoting Rosales Justo v. Sessions, 895 F.3d 154, 165 (1st Cir. 2018) (quoting Morales-Morales, 857 F.3d at 135)). As an example the Board looks to an earlier decision where they found that it may be futile or dangerous for an abused child to seek protection from the authorities because of the fact that they may not be able to properly articulate their fears due to their age, or, in cases where the abuser is a family member, they may prevent the child from reporting the abuse. How to Determine Whether The Applicant’s Failure to Report Their Harm Is Reasonable The Board’s decision is that the determination is ultimately a fact-specific inquiry. There will be substantial difference in the ability of applicants to report their based on factors such as their age. The Board remanded the case back to the Immigration Judge with instructions that on remand, “the Immigration Judge should consider the reasonableness of the respondent’s failure to seek assistance from the authorities in his country as part of considering all evidence regarding whether the government was unable or unwilling to protect the respondent.“ When considering the reasonableness of the respondent/applicant’s failure to seek assistance from the authorities the Immigration Judge should considering “the respondent’s testimony, available corroborating evidence, and country conditions reports.” In other words, the Court should consider not only the Applicant’s stated reason for not reporting the harm but also all the other evidence in the record which may make their failure to report the harm reasonable. Sexual Orientation IS A Particular Social Group In this decision the Board again expressly acknowledges sexual orientation as being an immutable characteristic that is beyond the power of an individual to change or is so fundamental to individual identity that they ought not be required to change it. The Board explicitly states, I believe for the first time in a published decision since 1994, that sexual orientation is a particular social group for purposes of asylum. The Board actually compares being forced to hide one’s sexual orientation to being forced to hide one’s religion, citing Shan Zhu Qiu v. Holder, 611 F.3d 403, 409 (7th Cir. 2010), a case where the Seventh Circuit concluded that requiring a respondent to stop practicing his religion or simply hope he can evade discovery runs contrary to the asylum laws. They apply the same rationale to sexual orientation in this decision. As a general matter, we do not base consideration of an applicant’s fearof future harm on the ability or requirement to hide his or her sexualorientation. Protection under asylum and withholding of removal is availableto applicants who fear persecution on account of their membership in aparticular social group based on sexual orientation. Kadri v. Mukasey, 543F.3d 16, 21 (1st Cir. 2008); Matter of Toboso-Alfonso, 20 I&N Dec. at822–23. Sexual orientation, like other protected grounds, is “a characteristicthat either is beyond the power of an individual to change or is sofundamental to individual identity or conscience that it ought not be requiredto be changed.” Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985),modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA1987). Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023). Full Decision here. The Three Takeaways From Matter of C-G-T- (1) Determining whether the government is or was unable or unwilling to protect therespondent from harm is a fact-specific inquiry based on consideration of all evidence. (2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecutionif the respondent can demonstrate that reporting private abuse to government authoritieswould have been futile or dangerous. (3) When considering future harm, adjudicators should not expect a respondent to hide hisor her sexual orientation if removed to his or her native country. Full text of the decision https://www.justice.gov/eoir/page/file/1594626/download

Important Update on Deferred Action for Childhood Arrivals

by

On Sept. 13, 2023, the U.S. District Court for the Southern District of Texas issued a decision finding the Deferred Action for Childhood Arrivals (DACA) Final Rule unlawful and expanding the original July 16, 2021 injunction and order of vacatur to cover the Final Rule. However, the court maintained a partial stay of the order for “all DACA recipients who received their initial DACA status prior to July 16, 2021.” See the Memorandum and Order (PDF, 1.35 MB) and Supplemental Order of Injunction (PDF, 72.53 KB). Current grants of DACA and related Employment Authorization Documents (EADs) remain valid until they expire, unless individually terminated. USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization under the DACA regulations at 8 CFR 236.22 and 236.23, as it has since October 31, 2022, in accordance with this decision. USCIS will continue to accept initial requests, but per the order, not process initial DACA requests. Currently valid grants of DACA and related EADs will continue to be recognized as valid under the Final Rule. This means that individuals with DACA and related EADs do not have to submit a request for DACA or employment authorization until the appropriate time to seek renewal. For more information on DACA, please visit our USCIS DACA webpage.

UNLAWFUL PRESENCE BARS CAN RUN IN THE US, BIA & USCIS AFFIRM

by

UNLAWFUL PRESENCE AND THE THREE/TEN-YEAR-BAR Under the unlawful presence grounds of inadmissibility, the three- and ten-year bars at INA § 212(a)(9)(B) penalize people who are present in the US. without any lawful immigration status for more than 6 months and 12 months respectively. This could be overstaying a visa by failing to depart the US. after one’s visa expires or it may be crossing the border and then remaining in the US. without any status. These bars do not apply until the person leaves the US. and then seeks to come back or to apply for admission. Once the three or ten years have passed, the person is no longer inadmissible. In recent years, USCIS interpreted the three- and ten-year bars as only able to run if the person is outside of the United States. Thus, if the person triggered the three- or ten-year bar and then re-entered the United States before the requisite time bar had passed, they remained inadmissible, regardless of how much time passed while they were in the United States. These bars are particularly problematic for non-citizens who entered the US. without inspection (not admitted into the US. on a visa or with parole—such as non-citizens who cross the Mexican border) since they are, in most cases, not eligible to adjust status to obtain residency (a green card) in the country. Since non-citizens who entered without inspection are not eligible to adjust status here they are required to attend an interview at the US. Consulate in their home country to obtain residency. This is where the three-year and ten-year bars become such a major obstacle for non-citizens in this situation. For many years after the three and ten-year bars came into existence in 1998, non-citizens subject to the bars had no option but to the leave the US. and apply for a waiver outside of the country and spend years separated from their family until the I-601A provisional waiver (state-side waiver) allowed for the spouses and children of US. citizens (and later permanent residents) to apply for a waiver while still in the US. If the waiver is approved they are still required to leave the country and attend the interview at the US. Consulate in their home country but this allows them to significantly reduce the amount of time they are required to be outside of the country. The current processing time for an I-601A waiver is 34 months and then they must still go through the traditional visa process, so it takes a lot of time and effort to pursue these waivers. Those who do not have a citizen/resident parent or spouse have no way of getting around the three/ten-year bar. NEW USCIS POLICY AND CASE LAW New USCIS policy guidance and a recent BIA case, Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023), however, now officially acknowledge that the simple passage of time is enough for the three- and ten-year bars to run, regardless of whether the full time period is spent inside or outside the United States. Previously, a handful of unpublished BIA cases said the three- and ten-year bars at INA 212(a)(9)(B) could run in the United States, but with Duarte-Gonzalez we now also have a precedential BIA decision taking the same position as USCIS, that the 212(a)(9)(B) time bars can run in the United States based on the plain language of the statute. This means whether an applicant is seeking adjustment of status with USCIS or applying to adjust in immigration court (before EOIR, the Executive Office for Immigration Review), this policy applies to them. Now, USCIS and EOIR will look at the amount of time that has passed since a person triggered the unlawful presence bar, without regard to where they were physically located during that time. Once the requisite number of years have passed, the ground of inadmissibility no longer applies, and no unlawful presence waiver is needed to adjust status. LIMITED BENEFIT TO THIS CHANGE Even though USCIS and the BIA now acknowledge that the 212(a)(9)(B) time bars can run while in the United States, keep in mind a person must leave the United States to trigger one of these bars. Thus, in order for the time bar to pass in the United States, they must have somehow returned after their departure. How they returned is critical. If you entered the US on a visitor visa in 2003 and overstayed but you triggered the ten-year bar by departing the US in 2005 with advance parole to go visit a sick relative, then when you return and are paroled into the US lawfully, you may wait out the remainder of the ten-year bar in the US. If you become eligible for residency in 2016, more than ten years after you tripped the bar, then you are no longer inadmissible under INA §212(a)(9)(B) pursuant to the new policy. Practically this isn’t going to benefit many people. People in the situation described above would often be able to adjust status without a waiver anyway if they were married to a US citizen and traveled on parole. Those who wouldn’t be eligible would be those who never traveled on parole and this new policy won’t benefit them. If you entered without inspection, accrued more than a year of unlawful presence and then left the US triggering the ten-year bar and then reentered the US again without inspection then this new policy will not benefit you. By reentering without inspection you would have triggered the permanent bar under INA §212(a)(9)(C). Two types of people benefit from this policy without also having a permanent bar problem: 1) Those who re-entered the United States lawfully after a departure triggering the three or ten-year bars; or 2) Those who only triggered the three-year bar with their departure (regardless of whether they re-entered the United States lawfully or not). MATTER OF DUARTE-GONZALEZ Matter of Duarte-Gonzalez, 28 I&N Dec. 688 (BIA 2023) Non-citizens who are inadmissible for a specified period of time pursuant to section … Read more