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The LAC Docket | Volume I, Issue 2

The Newsletter of the American Immigration Council’s Legal Action Center

March 1, 2011
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OUR WORK

Access to Courts

Federal appeals court rejects jurisdictional bar to post-departure motions to reopen
Pruidze v. Holder, No. 09-3836 (6th Cir. 2011)

In early February, the U.S. Court of Appeals for the Sixth Circuit rejected the government’s long-held position that immigration courts lack “jurisdiction” to consider motions to reopen filed by noncitizens who have already left the country. The unanimous decision agrees with the position of the Legal Action Center (LAC) and the National Immigration Project of the National Lawyers Guild (NIP), which contended in an amicus brief that the decades-old regulation underlying the government’s argument has been superseded by more recent changes to the Immigration and Nationality Act (INA). (See press release.) The Sixth Circuit thus became the fourth court to strike down or question the validity of the regulation, which only the Tenth Circuit has expressly found to be consistent with the motion to reopen statute.

Similar to requests for new criminal trials, motions to reopen removal proceedings allow noncitizens to present new facts that—if known at the time of the original hearing—could have undermined the government’s basis for deportation or established eligibility for relief from removal. In 1996, Congress codified the right to file a motion to reopen. Relying on a previously issued regulation, however, immigration courts continue to maintain that they cannot consider motions to reopen from noncitizens outside the United States, even if filed before their departure. This policy provides a perverse incentive for the government to deport noncitizens with final removal orders before the deadline for filing a motion to reopen or before a timely filed motion is adjudicated.

In its ruling, the Sixth Circuit agreed with the amicus brief that federal law requires consideration of all motions to reopen submitted before the filing deadline, regardless of whether the noncitizen has left or was removed from the United States. Because federal law creates a blanket right to file such motions within ninety days, the panel concluded that the BIA had no basis to rely on a jurisdictional bar to motions filed post-departure. As Circuit Judge Jeffrey Sutton put it, the government’s position “has no roots in any statutory source and misapprehends the authority delegated to the Board by Congress.”

The LAC and the NIP continue to challenge the validity of the departure bar in federal appellate courts nationwide. The Eighth and Ninth Circuits have heard oral arguments on the issue, and the Third Circuit has tentatively scheduled arguments for late April. The LAC and NIP are working with a petitioner’s lawyer in the 10th Circuit to seek en banc review of an unfavorable decision by that court. In addition, last summer, the LAC and NIP filed a petition for rulemaking with the Department of Justice, asking the agency to abandon the departure bar regulation.

Federal appeals court signals willingness to reconsider sua sponte motions to reopen
Mejia-Hernandez v. Holder, No. 07-74277 (9th Cir. 2011)

In late January, the U.S. Court of Appeals for the Ninth Circuit became the latest federal appellate court to reconsider its jurisdiction to review denials of sua sponte motions to reopen in light of last year’s Supreme Court decision in Kucana v. Holder. While the panel agreed with the LAC that the “overall thrust” of the Supreme Court decision suggested that denials of sua sponte motions to reopen should remain subject to judicial review, it considered itself bound by prior Ninth Circuit rulings.

The Ninth Circuit is now the fourth federal appellate court to consider itself bound by earlier decisions when reconsidering the issue in light of Kucana, a decision indicating that agencies cannot unilaterally insulate their decisions from federal court review. In an amicus brief, the LAC argued that only Congress can shield agency determinations from judicial review, and urged the Ninth Circuit to abandon its prior ruling to the contrary. While the petitioner, who won remand on another ground, will not seek rehearing en banc, the LAC believes that the Ninth Circuit and other federal appellate courts should reconsider the question anew.

Enforcement

BIA partially overrules Matter of Shanu regarding “date of admission” for crimes involving moral turpitude
Matter of Alyazji, 25 I&N Dec. 397 (2011)

In a precedent decision, the Board agreed with the LAC that noncitizens who entered the country in lawful nonimmigrant status do not acquire a new “date of admission” when adjusting to lawful permanent resident status for purposes of determining their removability for the commission of crimes involving moral turpitude (CIMT). The decision marked a partial retreat from the Board’s much-criticized decision in Matter of Shanu, which held both that adjustment of status may qualify as an “admission” under the INA, and that the five-year period in which the commission of a crime involving moral turpitude triggers eligibility for removal starts anew after any admission to the country. Although the Board adhered to the first part of its holding, it concluded that “date of admission”—as used in INA § 237(a)(2)(A)(i)—refers only to the initial admission by virtue of which the noncitizen was in the United States at the time the crime was committed. (See press release.)

As a result of the ruling, all noncitizens are considered to have only one “date of admission” for purposes of the five-year CIMT clock—either the date they were admitted at the border, or, if never admitted at the border, the date they obtained lawful immigration status inside the United States. For individuals admitted in nonimmigrant status, the ruling produces the same outcome the LAC sought in an amicus brief, which argued that adjustment of status should not qualify as an “admission” in the first place.

Federal appeals court requests briefs on impact of ICE civil enforcement memo
Vega Alvarez v. Holder, No. 08-71383 (9th Cir. appeal filed April 2, 2008)

In February, the LAC submitted an amicus brief in Vega Alvarez v. Holder, in which the Ninth Circuit requested supplemental briefing regarding the impact of an internal ICE memorandum on the government’s continued efforts to deport a pair of law-abiding, longtime U.S. residents with four U.S. citizen children. The memorandum, issued in June by ICE Director John Morton, seeks to streamline ICE’s enforcement docket by focusing on targets that promote the agency’s highest priorities: national security, public safety, and border security.

The petitioners, who have lived in the United States since 1991, were initially granted cancellation of removal on account of the hardship their deportation would cause their eldest child, a high school honors student who is enrolled at a pre-law program at community college. The Department of Homeland Security appealed the decision to the BIA, which subsequently overturned the grant of relief.

In its amicus brief, the LAC argued that the government’s failure to exercise prosecutorial discretion in cases that do not meaningfully advance its enforcement priorities represents an unwarranted departure from the clear guidance set forth in the ICE memo. The LAC suggested that the Court remand the case to the BIA to permit consideration of the memo’s impact.

Government reconsiders stance in FOIA suit over H-1B program
AILA v. DHS, No. 10-01224 (D.D.C. filed July 20, 2010)

In late February, in response to a cross-motion for summary judgment filed by AILA, the Department of Homeland Security withdrew its motion for summary judgment and vowed to renew its search for relevant documents in a Freedom of Information Act (FOIA) case that seeks to compel greater transparency in the H-1B program. AILA, represented by Steptoe & Johnson LLP and the Legal Action Center, provided concrete evidence that the government had failed to conduct a full search for relevant documents and produce records subject to disclosure under FOIA.

After reconsidering its position, the government sought and received an additional month to disclose any additional records that it finds that are not exempt under FOIA. AILA will then be able to renew its motion for summary judgment, if necessary. The complaint seeks the release of records explaining how U.S. Citizenship and Immigration Services (USCIS) evaluates H-1B petitions of businesses wishing to temporarily employ high-skilled foreign workers. The suit was filed in U.S. District Court for the District of Columbia after the government denied two previous FOIA requests by AILA.

“REQUESTS FOR EVIDENCE”

  • The LAC is monitoring the ability of noncitizens with immediate relatives in the United States to adjust to lawful permanent resident status following the receipt of Temporary Protective Status (TPS) if they entered the country without being admitted or paroled. Attorneys aware of such cases should send reports to clearinghouse@immcouncil.org.
  • The LAC is monitoring developments related to federal courts’ jurisdiction to review denials of sua sponte motions to reopen. Attorneys with pending Petitions for Review that raise this issue or with cases denied by the BIA whose clients wish to seek federal court review should send reports to clearinghouse@immcouncil.org.
  • The LAC is monitoring issues related to asylum applicants’ employment authorization “clock.” Attorneys may submit brief descriptions to clearinghouse@immcouncil.org.
  • The LAC is drafting a series of practice advisories for immigration lawyers on the use of motions to suppress in removal proceedings. We encourage attorneys who have filed motions to suppress based on unlawful conduct of state or local police officers, or on unlawful conduct of CBP officers, to send reports to clearinghouse@immcouncil.org.
  • The LAC is continuing to monitor implementation of the Ninth Circuit’s recent decision in Dent v. Holder, No. 09-71987 (9th Cir. Nov. 9, 2010), which construed INA § 240(c)(2)(B) to require the government to provide respondents in removal proceedings with a copy of their alien files (A-files). The LAC is developing guidance on Dent and encourages lawyers from all circuits to send reports of their experiences to clearinghouse@immcouncil.org.

QUICK LINKS

  • Staff Attorney Emily Creighton co-authored a paper and spoke at the South Florida AILA chapter conference in February regarding noncitizens’ right to counsel before USCIS, CBP, and ICE. More recently, AILA and the LAC published the final results of a survey addressing the same topic.
  • LAC Law Fellow Ben Winograd discussed the impact of a Virginia Supreme Court decision on immigrants who unwittingly pleaded guilty to crimes making them eligible for removal (Immigration Impact, “Despite Limits, How Padilla v. Kentucky Will Endure,” Jan. 27, 2011).

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