Tuesday, June 29, 2010

BIA Finds § 236(a)(2)(B) Conditional Parole Is Not Parole into the U.S. for AOS Purposes: Matter of Luis CASTILLO-PADILLA

(1) Conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2006), is a distinct and different procedure from parole under section 212(d)(5)(A) of the Act, 8 U.S.C. § 1182(d)(5)(A) (2006).

(2) An alien who was released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006).

Matter of Luis CASTILLO-PADILLA, Respondent
Cite as 25 I&N Dec. 257 (BIA 2010) Interim Decision #3683
Decided June 18, 2010

The issue in this case is whether an alien who has been released from custody on conditional parole pursuant to section 236(a)(2)(B) of the Act, 8 U.S.C. § 1226(a) (2006), has been “paroled into the United States” for purposes of establishing eligibility for adjustment of status under section 245(a) of the Act.

The Board of Immigration Appeals (BIA or Board) in Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (B.I.A. June 18, 2010), held that (1) conditional parole under INA § 236(a)(2)(B) [8 USCA § 1226(a)(2)(B)] (2006) is a distinct and different procedure from parole under INA § 212(d)(5)(A) [8 USCA § 1182(d)(5)(A)] (2006) and (2) an alien who was released from custody on conditional parole pursuant to INA § 236(a)(2)(B) has not been “paroled into the United States” for purposes of establishing eligibility for adjustment of status (AOS) under INA § 245(a) [8 USCA § 1255(a)] (2006).

The respondent, a native and citizen of Mexico, entered the U.S. on or about October 15, 1999, without being “admitted or paroled after inspection by an Immigration Officer.” The respondent was charged under INA § 212(a)(6)(A)(i) [8 USCA § 1182(a)(6)(A)(i)] (2006) as an alien present in the U.S. without being admitted or paroled. The respondent was detained at the Krome Service Processing Center and was released by the Department of Homeland Security (DHS) on a $12,000 cash bond on November 9, 2006. He was issued a Form I-94 (Arrival-Departure Record) with a stamp indicating that he was released after posting the bond. Before the immigration judge (IJ), the respondent conceded that he was removable as charged but sought to apply for AOS under INA § 245(a) based on his marriage to a U.S. citizen. The IJ denied the respondent's application for relief, finding that, although he was released from custody and given a Form I-94, he had not been “paroled into the United States” as required by INA § 245(a) to establish eligibility for AOS. The IJ also concluded that the respondent was ineligible to adjust his status under INA § 245(i) because of the filing date of his visa petition. The respondent appealed to the BIA, arguing on appeal and at oral argument that he received “conditional parole” under § 236(a)(2)(B) and thus is eligible to adjust status under § 245(a).

INA § 212(d)(5)(A) provides:

The Attorney General may, except as provided in subparagraph (B) or in section 214(f), in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

INA § 236(a) provides: On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General--

(1) may continue to detain the arrested alien; and

(2) may release the alien on--

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or

(B) conditional parole ...

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Friday, June 25, 2010

Illinois Supreme Court OK's taking driver's license for underage drinking

People v. Boeckmann

Direct appeal from the circuit court of Clinton County.

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald concurred in the judgment and opinion.
Justice Garman specially concurred, with opinion, joined by Justice
Justice Freeman dissented, with opinion, joined by Justice Burke.
Justice Karmeier took no part in the decision.

These consolidated appeals involve individuals charged with underage drinking who pled guilty to that offense. No vehicles were involved. The trial court placed each on court supervision for 90 days and then entered an order declaring unconstitutional as applied the statute requiring suspension of a driver’s license on receipt of court supervision for underage drinking, even where no vehicle is involved. It found a due process violation. The Secretary of State brought this direct from the finding of statutory unconstitutionality.

In 1989, the Illinois Supreme Court had held unconstitutional a statutory provision calling for revocation of a driver’s license on conviction of certain sex offenses. There, as here, there was no use of a vehicle. In this decision, the supreme court distinguished its earlier ruling, noting that, here, the legislature may have believed that a young person who consumes alcohol illegally may take the additional step of driving after consuming alcohol, and it is reasonable to believe that a young person disobeying the law against underage consumption may also lack the judgment to decline to drive after drinking. Preventing young people from driving after consuming alcohol is unquestionably in the public interest.

The supreme court also held that the obligation imposed here on the Secretary of State to suspend a driver’s license is mandatory, rather than discretionary.

The circuit court’s holding of statutory unconstitutionality was reversed.

These consolidated cases involved a constitutional challenge to Section 6-206(a)(43) of the Illinois Vehicle Code, the statutory provision which requires suspension of driving privileges for 90 days for any person receiving court supervision for unlawful consumption of alcohol under 21 years of age.

The circuit court held that the statute, as applied, violated due process because a vehicle was not involved in the commission of the offense. The Supreme Court disagreed.

The purpose of 6-206(a)(43) is to “promote the safe and legal operation and ownership of motor vehicles.” Suspension of driving privileges bears a rational relationship to that purpose because “young people who have a driver’s license and consume alcohol illegally may also drive after consuming alcohol regardless of whether a motor vehicle is involved.” And, the suspension of driving privileges is a reasonable method of furthering the public interest in safe and legal operation of motor vehicles, despite the absence of a vehicle or any plan to drive. So, for persons under 21, it doesn’t matter if a vehicle is involved in the commission of the offense of unlawful consumption of alcohol. It doesn’t even matter if a person under 21 who commits the offense of unlawful consumption of alcohol contemplates driving or not. Suspension of driving privileges for anyone receiving supervision for that offense is proper.

Nos. 108289, 108290 cons.

People v. Maschoff

Opinion 108289 (PDF)

Thursday, June 17, 2010

Troubling reality of the expedited removal procedure: 7th Circuit 09-3825 Faisal Khan v. Eric Holder, Jr.

WOOD, Circuit Judge. "Petitioner Faisal Khan and his sister Mona Khan, citizens of Pakistan, obtained B1/B2 nonimmigrant visitor’s visas to travel to the United States, purportedly for a two-month visit with their brother and his wife, whom they had not yet met. Immediately upon the arrival of the Khans and their parents at Chicago’s O’Hare Airport, Faisal and Mona were detained by the Department of Homeland Security. (The status of the parents is not before us.) Faisal and Mona were placed in expedited removal proceedings and ordered to return immediately to Pakistan. Each filed a petition for review from the removal order and a motion to stay removal pending resolution of the petition. We conclude that the government’s motions to dismiss the petitions for review for lack of jurisdiction must be granted.

At the time counsel for the petitioners filed the petition for review from Faisal’s removal order and the motion to stay his removal, counsel had almost no information regarding the removal proceedings, because neither counsel nor Faisal’s family members had been permitted to speak to him. Counsel had been unable to obtain even a copy of the removal order. According to the information counsel had received, Faisal was scheduled to be removed on a flight that evening. With little information about why Faisal, who had a valid passport and a valid visitor’s visa, was being removed, we ordered a temporary stay of his removal and ordered the government to respond. One week later, Mona, who had been paroled into the United States for a total of seven days to obtain medical care, was ordered removed, and she filed a petition for review and motion to stay her imminent removal. We again temporarily stayed her removal in order to obtain a response and additional information.

The government has responded to the motions to stay removal and has furnished the expedited removal orders and related documents. These materials explain why the Khans were not admitted at O’Hare, even though the government concedes that they had valid, unexpired passports and valid, unexpired B1/B2 non-immigrant visitor’s visas. At O’Hare, a United States Customs and Border Protection (“CBP”) investigating officer determined that the Khans actually intended to immigrate to the United States from Pakistan rather than temporarily visit, and they lacked the necessary documentation to immigrate. A different visa is needed for an alien who intends to immigrate than for an alien who has a residence in a foreign country that he has no intention of abandoning and who is visiting the United States temporarily for business or pleasure. 8 U.S.C. § 1101(a)(15)(B). Based on the examination at the border, CBP charged the Khans as inadmissible because they were attempting to immigrate without immigrant visas, in violation of 8 U.S.C. § 1182(a)(7)(A)(i)(I), and it processed them for expedited removal under 8 U.S.C. § 1225(b)(1)(A)(i). In short order, they were served with a Notice and Order of Expedited Removal and found removable as charged; the order was then approved by a CBP Chief. See 8 C.F.R. § 1235.3(b)(2), (7).

The government has called our attention to a number of factors that support its determination that Faisal intended to immigrate. Although we lack jurisdiction to review the merits of the question whether the CBP officer correctly initiated expedited removal proceedings, we note some of the contested factors only to highlight a few of the concerns with the expedited removal procedure that the petitioners are attempting to raise. Perhaps what initially aroused the CBP officer’s suspicions was Faisal’s return airline ticket for August 2010, seven months later than it should have been under his stated travel plans for a two-month visit. Faisal also had $7,800 in cash, his resume translated into English, and blank letterhead from his current employer in Pakistan. The government has also given us a 5-page transcript from Faisal’s interview with the CBP officer. It believes that the transcript supports the conclusion that Faisal intended to immigrate to the United States.

We are not so sure. Some of the answers are inconsistent and could support Faisal’s argument that he was confused and needed a translator. Faisal also protests that the interview lasted for hours and the 5-page document could not possibly be a full transcript. He maintains that the questions and answers the government has selected were taken out of context. He answered “yes” to the question whether he “planned on seeking employment during this entry” but only one page earlier he explained that he brought his documents because “I thought that it would prove I am going back to my job in Pakistan.” Faisal also said, “We are coming just to visit, but if the opportunity came for me to get a job then we would stay.”

Toward the end of the questioning, Faisal answered “yes” to the question whether he had been untruthful, and when asked why he had been untruthful, Faisal responded “I did a big stupid thing.” The officer then asked three separate questions whether he, his parents, and his sister were “immigrating to the United States on their B1/B2 visas, and he said “yes” to each. But when the officer repeated, “You, your sister and parents were attempting to immigrate to the United States today, is that correct?,” Faisal responded, “What does that mean?” Faisal refused to sign the record of his statement or any other documents because he did not believe they were correct. In his petition before this court, he has tendered an affidavit that he says he would offer if the case were remanded for further proceedings and he could submit his own evidence. He says that he repeatedly told the officer that he was employed in Pakistan, that he was not lying, and that he had come to visit his brother and vacation with his family. Faisal asserts that the officer said that Pakistanis and Muslims “always come to the United States to marry or to get a job. She also said that we always lie and that this is what I was doing.”

Mona’s removal proceedings were conducted through an interpreter, but she was not provided an interpreter during her initial questioning the prior week. Although the statute does not require it, regulations issued by the Department of Homeland Security provide that during the interview process, “[i]nterpretive assistance shall be used if necessary to communicate with the alien.” 8 C.F.R. § 235.3(b)(2)(i). The officer in the removal proceedings referred back to Mona’s answers during the earlier questioning and refused to re-interview her on matters related to the initial interview. When asked what the purpose of her visit was, she responded, “I am here to visit my brother and my new sister-in-law and vacation.” She agreed that she had told an officer during the initial interview that she would attend school or marry someone in the United States if that is what her family told her to do because she willingly allows her family to make her life decisions. Mona admitted that she brought her school transcripts and diplomas with her.

The government moves to dismiss the petitions under 8 U.S.C. § 1252(a)(2)(A), which provides that “no court shall have jurisdiction to review” an order of expedited removal under § 1225(b)(1). Although § 1252(e)(2) contains a limited exception permitting review of specific determinations by habeas corpus petitions, the Khans do not argue that subsection (e) applies here. Instead, they assert only that this court may have jurisdiction under a “safety valve” established for substantial constitutional questions, when review would otherwise be barred by § 1252, “to enable judicial correction of bizarre miscarriages of justice.” LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998). See also Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999). This is such a case, they say, in light of the government’s position, which Faisal characterizes as: “even if no power has been conveyed by the legislative to the executive branch to enter the removal order at issue herein, even if the order is legally flawed, notwithstanding that the Petitioner was questioned for seven hours in the dead of night without any interpreter despite the agency’s own regulations calling for one, no court has the power to consider the legality of the agency’s actions.” They opine that this is a proposition of frightening breadth.

The government responds that this court’s cases establishing a safety valve are distinguishable because they did not involve the same jurisdictional bar that governs this case. The review-limiting provisions in those cases, which involved § 1252(a)(2)(C) and § 1252(g), left open the opportunity for aliens (who could have filed habeas corpus petitions in the district courts prior to the 1996 Amendments to the Immigration and Naturalization Act) to bring constitutional issues directly before the courts of appeals. See Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000); Singh, 182 F.3d 504; LaGuerre, 164 F.3d 1035. Moreover, section 1252(a)(2)(D) specifically provides that “Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law.” Section 1252(a)(2)(A), however, is not mentioned in § 1252(a)(2)(D) as leaving open such an opportunity; to the contrary, it expressly prohibits aliens from raising such claims before the court of appeals. See Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007) (“Section 1252(a)(2)(D) plainly states that other limitations on judicial review in ‘this section’— that is, section 1252—still apply.”). Other circuits have held that constitutional and statutory claims arising in expedited removal proceedings are not reviewable. Garcia de Rincon v. DHS, 539 F.3d 1133, 1138-39 (9th Cir. 2008)

(Section 1252(a)(2)(D) does not apply to the jurisdictional limitations in § 1252(a)(2)(A)); Turgerael v. Mukasey, 513 F.3d 1202, 1205-06 (10th Cir. 2008) (Section 1252(a)(2)(D) preserves the jurisdictional bar of § 1252(a)(2)(A)). While the Khans attempt to distinguish these cases because they involved collateral attacks to expedited removal in the context of reinstatement of removal, the language of the cases is not so limited, and nearly all of the cases addressing the expedited removal statute arise in the reinstatement context.

The Khans acknowledge that this court’s cases recognizing a safety valve involved § 1252(a)(2)(C), whereas they were at the point of initial entry where their constitutional rights were at their lowest ebb. They protest, nevertheless, that the purpose of the “safety valve” theory is that some limited jurisdictional review must be available despite congressional attempts to bar review. Cf. INS v. St. Cyr, 533 U.S. 289, 304-05 (2001) (determining that some jurisdiction must continue to exist over pure questions of law and constitutional questions but noting the absence of any express repeal of § 2241 habeas corpus jurisdiction). Here, the Khans acknowledge that there has been an express repeal of jurisdiction. They nonetheless assume that the court may somehow disregard the jurisdiction-stripping statute and reach their constitutional issues under the safety valve. Indeed, they go on to suggest that it would be anomalous for the court to refuse to consider statutory arguments since courts prefer to decide a case on legal grounds rather than constitutional grounds. They make the specific argument that the applicable regulation, 8 C.F.R. § 235.3, is invalid because it grants the government agents the power to order removal without basing any factual findings on clear, convincing, and unequivocal evidence. They argue that there is nothing in § 1225(b)(1) to indicate that Congress intended to modify the rule from Woodby v. INS, 385 U.S. 276, 286 (1966), that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. They believe that doubtful cases should be referred to an immigration judge, giving effect to the statutory provisions whereby applicants for admission who are not “clearly and beyond a doubt entitled to be admitted” be referred to an immigration judge for a hearing. 8 U.S.C. § 1225(b)(2)(A). Finally, they point out that the removal orders do not charge that they engaged in fraud in violation of 8 U.S.C. § 1182(a)(6)(C), and without fraud, there is no support that they lacked valid visas.

The troubling reality of the expedited removal procedure is that a CBP officer can create the § 1182(a)(7) charge by deciding to convert the person’s status from a non-immigrant with valid papers to an intending immigrant without the proper papers, and then that same officer, free from the risk of judicial oversight, can confirm his or her suspicions of the person’s intentions and find the person guilty of that charge. The entire process—from the initial decision to convert the person’s status to removal—can happen without any check on whether the person understood the proceedings, had an interpreter, or enjoyed any other safeguards. To say that this procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior (suppose a particular CBP officer decides that enough visitors from Africa have already entered the United States) is not, however, to say that courts are free to disregard jurisdictional limitations. They are not, and we thus must align ourselves with the courts that have considered the issue and hold that we lack jurisdiction to inquire whether the expedited removal procedure to which the Khans were subjected was properly invoked. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001); Li v. Eddy, 259 F.3d 1132, 1134 (9th Cir. 2001), opinion vacated as moot, 324 F.3d 1109 (9th Cir. 2003) (“On its face, subsection (e)(2) does not appear to permit the court to inquire into whether section 1225(b)(1) was properly invoked, but only whether it was invoked at all.”). Under § 1252(e), which sets forth the limited exceptions to the jurisdictional bar, a court has jurisdiction to inquire only “whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.” 8 U.S.C. § 1252(e)(5).

In a similar situation, the Fifth Circuit affirmed a district court’s dismissal for lack of jurisdiction of a habeas corpus petition challenging an expedited removal order. Brumme v. INS, 275 F.3d 443 (5th Cir. 2001). The petitioner was a native and citizen of Germany, but she made frequent trips to the United States, owned a home in Tucson, and had a visitor’s visa valid through 2005. In March 2000, she and her husband returned to the United States and received entry permits valid through August 2000. In July 2000, the petitioner went to Germany for 10 days to visit her mother and attempted to re-enter the United States to return to her husband, who was being treated here for cancer. The INS inspector determined that she intended to become an immigrant and did not possess a valid immigrant visa, and she was ordered removed under § 1182(a)(7). The district court concluded that it lacked jurisdiction under § 1252(e)(5) to decide the real issues the petitioner was trying to raise—whether she was admissible or entitled to relief from removal Finally, the Khans have attempted to challenge the regulations under which their case has been processed. But that is nothing but a thinly disguised challenge to the validity of the expedited removal system and is untimely under § 1252(e)(3), which permitted a judicial review in an action instituted in the United States District Court for the District of Columbia no later than 60 days after it was first implemented. In fact, such a challenge was brought, and the District Court for the District of Columbia upheld the regulations as written against challenges to: (1) the ban on aliens’ communicating with family, friends and counsel during secondary inspection; (2) the failure to provide adequate language interpretation at secondary inspection; (3) the failure to provide adequate access to and participation of counsel prior to and during the secondary inspection; (4) the failure to provide adequate information on charges and procedures, the opportunity to contest those charges, and the failure to provide for review of removal orders; and (5) the application of these procedures to individuals with facially valid documents. American Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 53-57 (D.D.C. 1998), aff’d, 199 F.3d 1352 (D.C. Cir. 2000).

As relevant here, the district court rejected the plaintiffs’ argument that expedited removal procedures should apply only to aliens whose travel documents are facially invalid and that aliens found inadmissible under § 1182(a)(6)(C) or (a)(7) based on other factors should be referred to an immigration judge. 18 F. Supp. 2d at 56. The court held that the plain language of the statute provides that inadmissibility under these provisions can arise for reasons other than facially invalid or absent papers. Id. “Thus, an inspecting officer can and must refuse admission if a visa holder fails to establish to the inspector’s own satisfaction that the visa holder fulfills the requirements for the classification which his visa bears. Contrary to plaintiffs’ apparent belief, the inspector is not statutorily limited to ascertaining that the ‘face’ of the visa indicates that a consular officer has found the alien admissible; rather, the inspector undertakes an independent admissibility determination himself.” Id. at 57. Finally, the district court ruled that § 1252(e)(3)(A)(ii) permitted it to review only the regulations as written, not as applied and not for the agency’s alleged failure to follow its own regulations. Id. at 58. The court acknowledged concern, as we do, with the effects of Congress’s decision to bar the unwritten actions of the agency from judicial review, particularly where individual CBP agents are given so much discretion and are subjected only to a supervisor’s review of their decisions. Id.

We nonetheless conclude that we are required by law to GRANT the government’s motions to dismiss and DISMISS the petitions for review for lack of jurisdiction. The motions to stay removal pending resolution of the petitions for review are DENIED."

06/11/2010 Opinion (WOOD)


Monday, June 14, 2010

Second or subsequent simple possession offenses are not aggravated felonies under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction

In Carachuri-Rosendo v. Holder (09-60), the Court reverses, in an opinion by Justice Stevens.  The vote is unanimous, though Justices Scalia and Thomas each file opinions concurring in the judgment only.

Issue: Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession. http://www.supremecourt.gov/opinions/09pdf/09-60.pdf

Petitioner, a lawful permanent resident of the United States, faced deportation after committing two misdemeanor drug offenses in Texas.For the first, possession of a small amount of marijuana, he received 20 days in jail. For the second, possession without a prescription of one antianxiety tablet, he received 10 days. Texas law, like federal law, authorized a sentencing enhancement if the State proved that petitioner had been previously convicted of a similar offense, but Texas did not seek such an enhancement here. After the second conviction, the Federal Government initiated removal proceedings. Petitioner conceded that he was removable, but claimed that he was eligible for discretionary cancellation of removal under the Immigration and Nationality Act (INA) because he had not been convicted of any “aggravated felony,” 8 U. S. C. §1229b(a)(3). Section 1101(a)(43)(B) defines that term to include, inter alia, “illicit trafficking in a controlled substance . . . including a drug trafficking crime” as defined in18 U. S. C. §924(c), which, in turn, defines a “drug trafficking crime” as a “felony punishable under,” inter alia, “the Controlled Substances Act (21 U. S. C. 801 et seq.).” A felony is a crime for which the“maximum term of imprisonment authorized” is “more than one year.” §3559(a). Simple possession offenses are ordinarily misdemeanors punishable with shorter sentences, but a conviction “after a prior conviction under this subchapter [or] the law of any State . . . has become final”—a “recidivist” simple possession offense—is “punishable” as a “felony” under §924(c)(2) and subject to a 2-year sentence. Only this “recidivist” simple possession category might be an“aggravated felony” under 8 U. S. C. §1101(a)(43). A prosecutor must charge the existence of the prior conviction. See 21 U. S. C. §851(a)(1). Notice and an opportunity to challenge its validity, §§851(b)–(c), are mandatory prerequisites to obtaining a punishment based on the fact of the prior conviction and necessary prerequisites to “authorize” a felony punishment, 18 U. S. C. §3559(a), for the simple possession offense at issue. Here, the Immigration Judge held that petitioner’s second simple possession conviction was an “aggravated felony” that made him ineligible for cancellation of removal. The Board of Immigration Appeals and Fifth Circuit affirmed. Relying on the holding in Lopez v. Gonzales, 549 U. S. 47, 56—that to be an “aggravated felony” for immigration law purposes, a state drug conviction must be punishable as a felony under federal law—the court used a “hypothetical approach,” concluding that because petitioner’s “conduct” could have been prosecuted as a recidivist simple possession under state law, it could have also been punished as a felony under federal law.

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Thursday, June 10, 2010

Chinese Asylum: Is it appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion? 7th Circuit 2010

Xiu Chen v. Eric Holder, Jr. (Easterbrook)
Full Text

A Chinese citizen's petition for review of BIA's denial of her application for asylum is granted and remanded as the Board has never addressed the question of whether it is appropriate to treat suing a unit of government as a legitimate means of expressing one's political opinion. Furthermore, the Board needs to consider the possibility that, if China has classified petitioner as a public protester, then perhaps an imputed political opinion is "at least one central reason" for the attempted arrest for filing suit against the local government for confiscating her father's land without just compensation.

Xiu Qin Chen, a citizen of China, seeks asylum in the United States. She contends that China persecuted her because of her political opinions and will imprison her because of those opinions should she be returned. Her political opinion, as she expresses it in this court, is that China should pay just compensation when it takes private property for public use. That capitalist principle, enshrined in the fifth amendment to the Constitution of the United States, is less honored in communist nations.

Chen contends that her home town of Langqi razed about a dozen homes in order to construct a military building. (We recount her story, which the Board of Immigration Appeals accepted provisionally.) Officials promised to provide similarly sized plots of land and to pay for construction of new houses within three months, and to provide rent for transitional housing. The rent was paid, but when four months passed without the transfer of new land or the money to build new homes, Chen filed suit against the local government. The court dismissed that suit, and officials appeared at her family’s rented home with a warrant for her arrest. She fled. Police have tried to find her ever since, and when her father refused to reveal her whereabouts he was beaten and his leg broken. But the Board of Immigration Appeals concluded that Chen’s lawsuit did not advance a political position, so the government’s reaction, though excessive, was not on account of “political opinion” within the meaning of 8 U.S.C. §1158(b)(1)(B)(i).

One circuit has held that litigation is a form of political expression that can make a person eligible for asylum. Baghdasaryan v. Holder, 592 F.3d 1018, 1020–21, 1024 (9th Cir. 2010); Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1044–45 (9th Cir. 2008). Another has implied this, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 547–48 (2d Cir. 2005), though that decision did not arise from litigation. Chen urges us to follow these decisions and rule in her favor on the political-opinion question, remanding to allow the agency to address the rest of the statutory issues. Things are not quite that simple, however.

First, the ninth circuit approached the subject as if the judiciary made an independent decision. It does not. The Attorney General, and his delegate the Board of Immigration Appeals, are principally responsible for interpreting ambiguous terms in the immigration laws, and the judiciary must respect administrative decisions that plausibly implement this legislation. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), applied to immigration law by INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999). See also Negusie v. Holder, 129 S. Ct. 1159, 1163–64 (2009). The alien must establish that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant”. 8 U.S.C. §1158(b)(1)(B)(i). These are not self-defining terms, so administrative officials have considerable leeway.

Second, it is necessary to distinguish having a political opinion from the means of its expression. The United States does not allow punishment for anyone’s political views—but rules for the time, place, and manner of expression are independent of the speaker’s politics. Thus it may be permissible to punish a person for waking up the neighbors with a bullhorn, even though the viewpoint of the amplified statements cannot be penalized. See Ward v. Rock Against Racism, 491 U.S. 781 (1989). And a public demonstration that blocks access to a person’s home, and spoils the quiet that people need in their daily lives, may be curtailed. See Frisby v. Schultz, 487 U.S. 474 (1988). The second and ninth circuits appear to have assumed that the time, place, and manner rules used in the United States apply equally to foreign nations, and that any departure from them penalizes political opinion. That is far from clear to us. The foundation for the time, place, and manner rules is that they do not concern the viewpoint or content of the speech. In California, shopping malls are open to political demonstrations, see PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980). But if a foreign nation bans political speech at shopping malls and arrests picketers as trespassers, that is not necessarily punishment for “political opinion”; it may be no more than insistence that political opinion be expressed in a different place. Thus if a foreign state decides that litigation is not an appropriate forum for political opinion, it would be hard to characterize that as persecution.

Third, the United States has itself limited the expression of political opinion in the courts. True enough, litigation is protected by the first amendment as one of the ways by which the people may petition for redress of grievances. See Lewis v. Casey, 518 U.S. 343 (1996); NAACP v. Button, 371 U.S. 415 (1963). Cf. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510–11 (1972). But this does not imply that litigation is just politics by other means. See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). A court is the forum in which legal rights are vindicated, and people who use litigation solely as a pulpit for political protest may be penalized if the suit is objectively baseless. BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002).

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Monday, June 7, 2010

Driving While License Revoked (DWLR) offense was not a lesser-included offense of aggravated DUI.People v. Nunez Filed 3-18-10

The fact that Defendant’s driver’s license was revoked at the time he drove while under the influence is not an element of the DUI offense, but rather it was a factor that served to enhance the sentence classification from a misdemeanor to a Class 3 felony DUI. As a matter of law, Defendant’s Driving While License Revoked (DWLR) offense was not a lesser-included offense of aggravated DUI.

Following a bench trial in the circuit court of Cook County, defendant Jorge Nunez was convicted of one count of aggravated driving under the influence of a drug or combination of drugs during a period in  which his driver’s license was suspended or revoked (aggravated DUI), in violation of sections 11–501(a)(4) and (c–1)(2.1) of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11–501(a)(4),  (c–1)(2.1) (West 2006)), and one count of driving while his driver’s license was suspended or revoked (DWLR), in violation of section 6–303(d) of the Vehicle Code (625 ILCS 5/6–303(d) (West 2006)).  Defendant was sentenced to two concurrent terms of two years’ imprisonment.

No. 108189 People v. Nunez

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There must be evidence of the presence of cannabis in the blood, breath, or urine to be found guilty of a DUI based on 11-501(a)(6) People of the State of Illinois v. Samuel McPeak, No. 2080572

The 2nd District recently ruled that there was insufficient evidence to convict for a DUI where there was neither evidence of impaired driving nor evidence of cannabis in the breath, blood, or urine of the defendant.

Defendant Samuel McPeak was found guilty of DUI (625 ILCS 5/11-501 (a) (6)) after the trial court denied his motion to quash the arrest and suppress evidence at a stipulated bench trial.

McPeak subsequently appealed on two grounds: 1) the stipulated facts were insufficient to convict him; and 2) he was not properly admonished under Supreme Court Rule 402. The appeals court reversed and remanded based on improper admonishments in accordance with Supreme Court Rule 402. At that point they didn’t address the adequacy of the evidence presented; McPeak’s first ground for appeal.

In this case the court focused on People v. Allen, 375 Ill. App. 3d 810 (2007) and People v. Briseno, 343 Ill App. 3d 953 (2003) as helpful in McPeak’s argument.

In Allen the defendant was also convicted of a DUI based on cannabis and the Third District reversed based on insufficient evidence, stating:

The statute does not criminalize having breath that smells like burnt cannabis. Furthermore, even though the trial court found the officer’s testimony credible regarding defendant’s admission of smoking cannabis the night before his arrest, the State put on no evidence that there would have been ‘any amount’ of the illegal drug in defendant’s breath, urine, or blood at the time of defendant’s arrest as a result of smoking cannabis the night before. Allen, 375 Ill. App. 3d at 816.

The court further addressed the State’s argument that with the additional circumstantial evidence of drug paraphernalia that there was enough evidence to convict. The argument was dismissed because there was no additional evidence of impaired driving (recall the basis of the stop was a seat belt violation). Ultimately, the State was unable to prevail against the court’s decision that there was no evidence of any cannabis remaining in McPeak’s breath, blood, or urine when he was driving.

This decision seems to put the brakes on the statute’s requirement of “any amount of drugs” in the body being sufficient to convict for a DUI. It appears with this ruling that the state will need to make a showing of 1) impaired driving; 2) physical indicators of drug consumption aside from a defendant’s admission, and 3) evidence that the drug is actually in the breath, blood, or urine at the time of the offense.

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Thursday, June 3, 2010

Matter of MONGES-Garcia, 25 I&N Dec. 246 (BIA 2010)

BIA Finds No Conflict Between Regulation's Time Limits on Motions to Reopen and INA § 242B(e)(1)'s Limit on Discretionary Relief.

(1) The 90-day time limitation for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or after the 1996 promulgation of the regulations.

(2) The 5-year limitation on discretionary relief for failure to appear at deportation proceedings under former section 242B(e)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(e)(1) (1994), is not in conflict with, and does not provide an exception to, the 90-day deadline for filing a motion to reopen in 8 C.F.R. § 1003.23(b)(1).

The Board of Immigration Appeals (BIA or Board) held in Matter of Monges-Garcia, 25 I. & N. Dec. 246 (B.I.A. May 20, 2010), that (1) the 90-day time limitation for filing a motion to reopen in 8 CFR § 1003.23(b)(1) (2010) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or after the 1996 promulgation of the regulation, and (2) the five-year limitation on discretionary relief for failure to appear at deportation proceedings under former INA § 242B(e)(1) (1994) is not in conflict with, and does not provide an exception to, that 90-day deadline for filing a motion to reopen. The matter was before the BIA following the U.S. Court of Appeals for the Ninth Circuit's remand of the Board's prior decision in the matter to permit the Board to answer these questions, Monges-Garcia v. Gonzales, 228 Fed. Appx. 665 (9th Cir. 2007).

The respondent is a native and citizen of Honduras who entered the U.S. without inspection on February 16, 1994, after which deportation proceedings were initiated against her with the issuance of an order to show cause and notice of hearing (Form I-221). When the respondent failed to appear for her scheduled hearing on October 28, 1994, the immigration judge (IJ) ordered her deported in absentia. On April 7, 2003, the respondent filed a motion to reopen her deportation proceedings, seeking to apply for adjustment of status based on her marriage to a U.S. citizen. The IJ denied the motion, finding that the respondent did not establish that her failure to appear resulted from a lack of notice or exceptional circumstances as required by former INA § 242B(e)(1) and that her motion was time barred under the regulations. The Board upheld this decision, and the respondent sought review in the Ninth Circuit, which remanded.

Former INA § 242B(e)(1), which was added by § 545(a) of the Immigration Act of 1990 (IMMACT), [FN3]  provides as follows: At deportation proceedings.--Any alien against whom a final order of deportation is entered in absentia under this section and who, at the time of the notice described in subsection (a)(2), was provided oral notice, either in the alien's native language or in another language the alien understands, of the time and place of the proceedings and of the consequences under this paragraph of failing, other than because of exceptional circumstances (as defined in subsection (f)(2)) to attend a proceeding under section 242, shall not be eligible for relief described in paragraph (5) for a period of 5 years after the date of the entry of the final order of deportation.

Listed in paragraph (5) are voluntary departure under INA § 242(b)(1) [8 USCA § 1252(b)(1)], suspension of deportation or voluntary departure under INA § 244 [8 USCA § 1254], and adjustment or change of status under INA §§ 245, 248, or 249 [8 USCA §§ 1255, 1258, or 1259]. In conjunction with this and other provisions in § 242B relating to the required notice of deportation hearings that must be given to aliens and the consequences for their failure to appear, Congress mandated that the Attorney General issue implementing regulations within six months of enactment of IMMACT regarding the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, including a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions. Accordingly, the Department of Justice published a final rule in 61 Fed. Reg. 18900 (Apr. 29, 1996), effective July 1, 1996. The regulation, now at 8 CFR § 1003.23(b)(1), provides that, subject to certain exceptions, a party may file only one motion to reconsider and one motion to reopen proceedings, which must be filed within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 30, 1996, whichever is later.

The BIA, in an opinion written by Board Member Charles K. Adkins-Blanch and joined by Board Member John H. Guendelsberger and Temporary Board Member Jean C. King, found that, pursuant to the time limitations imposed by the regulations, a motion to reopen a final administrative order of removal, deportation, or exclusion entered on or after the July 1, 1996, effective date is subject to the 90-day deadline because 90 days after the date of the order would be later than September 30, 1996. In addition, the Board said, the regulations make clear that any motion to reopen such a final order entered before July 1, 1996, must necessarily be filed by September 30, 1996, which is the later deadline in that case. Since these regulations were promulgated pursuant to Congress' directive in conjunction with its enactment of the enforcement provisions of INA § 242B setting forth the consequences of failure to appear at deportation proceedings, the Board concluded that (1) Congress clearly intended that the time and number limitations on motions would further the statute's purpose of bringing finality to immigration proceedings and (2) therefore, the 90-day time limitation for filing a motion to reopen contained in 8 CFR § 1003.23(b)(1) applies to motions to reopen in absentia deportation orders for the purpose of adjusting status, whether filed before or *1052  after the 1996 promulgation of the regulations. Thus, since the respondent is subject to the current version of 8 CFR § 1003.23(b)(1), which required her to file her motion to reopen by September 30, 1996, because her in absentia deportation order was issued on October 28, 1994, and her motion to reopen was not submitted until April 7, 2003, the Board found her motion untimely filed and therefore properly denied by the IJ.

Turning to the Ninth Circuit's second question, the Board found no conflict between the regulation and INA § 242B(e)(1), both of which emanated from Congress' concern over delays in immigration proceedings. Since the regulations carry out Congress' intent, the Board saw no inconsistency between them and the statute. The Board rejected the respondent's contention that INA § 242B(e)(1)' s five-year limitation on an alien's eligibility for discretionary relief as a result of failure to appear at deportation proceedings is an exception to the 90-day deadline in 8 CFR § 1003.23(b)(1). The Board explained that the five-year bar is applicable only to aliens who failed to appear for a hearing, including those who left the U.S. and subsequently returned, whereas the general time limitation on filing a motion contained in 8 CFR § 1003.23(b)(1) is an independent provision that applies to any alien who has been ordered excluded, deported, or removed. These provisions, the Board said, have separate restrictions for different purposes and are not at odds with one another. Moreover, since Congress intended to prevent aliens from obtaining benefits as a result of the mere accrual of time after the entry of a final administrative order, the Board opined that it would be inconsistent with that intent to allow an alien who avoided deportation for more than five years after failing to appear for a hearing to be exempt from the regulatory time limitations on motions to reopen. Thus the Board concluded that aliens must comply with the applicable provisions of both 8 CFR § 1003.23(b)(1) and INA § 242B(e)(1) in order to apply for adjustment of status.

Since the respondent's motion to reopen was filed well after the regulatory deadlines and did not qualify for any of the permissible exceptions to the time limits on motions to reopen, the Board upheld the IJ's decision that the respondent was precluded from reopening her proceedings. Therefore, the appeal was dismissed.

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Ninth Circuit Finds Son of U.S. Citizen Remains Such After Citizen's Death and Remains Eligible for § 237(a)(1)(H)(i) Waiver.

The U.S. Court of Appeals for the Ninth Circuit, in reviewing the decision of the Board of Immigration Appeals (BIA or Board) in Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. Oct. 23, 2008), has held that the Board erred in holding that the son of a U.S. citizen was not eligible for a waiver of inadmissibility under INA § 237(a)(1)(H)(i) [8 USCA § 1227(a)(1)(H)(i)] because his citizen mother died before a decision was rendered on his waiver application, Federiso v. Holder, 2010 WL 1980763 (9th Cir. May 19, 2010).

The petitioner is a Filipino national who entered the U.S. as a lawful permanent resident in November 1986 as the unmarried son of a U.S. citizen (his mother). Fifteen years later, removal proceedings were initiated against him because he had falsely represented that he was unmarried when he applied for his visa, rendering him inadmissible and therefore removable under INA § 212(a)(6)(C)(i) [8 USCA § 1182(a)(6)(C)(i)] for having procured his visa by fraud or willful misrepresentation. The petitioner requested relief under INA § 237(a)(1)(H)(i) which gives an immigration judge (IJ) the discretion to waive the removal of an immigrant who procured a visa through willful misrepresentation if the immigrant “is the spouse, parent, *1050 son, or daughter” of a U.S. citizen or lawful permanent resident. The removal proceedings dragged on for years, and, after the proceedings had been initiated but before the hearing on the petitioner's request for § 237(a)(1)(H)(i) relief, his mother died. At the hearing, the petitioner and the Department of Homeland Security (DHS) disagreed about whether the petitioner was still eligible to apply for a § 237(a)(1)(H)(i) waiver. The IJ held that he was since he “continues to be the son of a United States citizen” after the death of his U.S.-citizen mother. The IJ then examined a long list of equities in the petitioner's favor and granted the waiver. DHS appealed, and the BIA, agreeing with DHS, held that “to be eligible for a waiver of removal” under § 237(a)(1)(H)(i), “an alien must establish a qualifying relationship to a living relative” (emphasis added). Because the petitioner's mother was no longer living, the BIA held that he was no longer eligible to apply for the waiver. The BIA therefore vacated the IJ's decision and ordered the petitioner removed to the Philippines. The petitioner sought review by the court of appeals.

The court acknowledged that, where there is ambiguity in the statute, it must defer to the agency's interpretation, but found the text of § 237(a)(1)(H)(i) plain and unambiguous and the Board's interpretation clearly contrary to the plain meaning of that text.

INA § 237(a)(1)(H) provides that:

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who-- (i) (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

This text, the court said, “clearly states that the son of a citizen of the United States may be eligible for a waiver of removal.” Since neither DHS not the BIA disputed that the petitioner was the son of a U.S. citizen, the court opined that that alone was enough to resolve the case. However, the court also pointed out that, while the Board interpreted the statutory provision to apply only to a living citizen, “this is not what the statute says.”

The court also found that the BIA erred in relying on two Ninth Circuit decisions which held that the purpose of the waiver was to promote family unity and that waivers should not be granted in instances in which that purpose would not be furthered: Chung Wood Myung v. District Director of U.S. Immigration & Naturalization Service, 468 F.2d 627 (9th Cir. 1972) (finding that the waiver should not be granted for the father where the U.S. citizen child lived in Korea with his mother), and Kalezic v. Immigration and Naturalization Service, 647 F.2d 920 (9th Cir. 1981) (finding that, where the alien was divorced from his U.S. citizen wife and thus family unity was not applicable, the waiver would not be granted). The court found Kalezic of little value in adjudicating the instant case since it involved a marital relationship, not “the wholly distinct relationship between parent and child.” While a husband ceases to be his wife's spouse upon divorce, the court pointed out that “[A] child never ceases to be his mother's son. He always is her son, even after her death.”

The court found Myung more relevant since it involved a parent-child relationship but explained that, in the decades since it issued Myung and Kalezic, both the statutory text at issue and the role of the interpreter have changed. The court pointed out that, when it decided these two cases, it looked to the purpose of the statute rather than to its language but that now it is governed by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny, and, unless the “statute is silent or ambiguous with respect to the specific issue” before the court, the court's work is done. Here, the court reiterated, the statutory language at issue is plain: the son of a U.S. citizen may be eligible for a waiver. Also, the court noted, when Myung and Kalezic were decided, the waiver was mandatory whereas it is now discretionary. Thus, the court said, whether an alien is eligible for a waiver is a question of statutory interpretation fit for judicial review whereas whether issuing § 237(a)(1)(H) relief to a particular alien is consistent with the statute's underlying purpose is a case-by-case policy determination that the statutory text commits not to the courts but to the discretion of the Attorney General and his designee the IJ. Neither the BIA nor the court may further its preferred interpretation of Congress' intent by misreading or adding to the statutory eligibility requirements that Congress has laid out quite clearly, the court concluded. Accordingly, the court granted the petition for review and remanded the matter to the Board for further proceedings.
BIA Finds Fraud Waiver Applicant’s Qualifying Relative Must be Living to Establish Eligibility.

BIA finds that the purpose of a fraud waiver under INA §237(a)(1)(H)(i)(I) is clear from the statutory language and court interpretations - to unite aliens with their living USC or LPR family members. Concludes that because the waiver applicant’s mother is deceased, he lacks the qualifying relative. Matter of Federiso, 24 I&N Dec. 661, (BIA 2008). To be eligible for a waiver of removal under INA § 237(a)(1)(H)(i) [8 USCA § 1227(a)(1)(H)(i)] (2006), an alien must establish a qualifying
relationship to a living relative, the Board of Immigration Appeals (BIA or Board) has held. Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. Oct. 23, 2008).

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EOIR Creates Immigration Judge Conduct and Professionalism Web Page

The Office of the Chief Immigration Judge has established a procedure that allows any person to file a complaint about the conduct of an Immigration Judge.  Below are links to documents which describe how to file a complaint, the procedures used to process complaints, and statistics concerning the disposition of complaints.
Process for Handling Complaints Against Immigration Judges
Filing a Complaint
Immigration Judge Complaint Statistics
(Coming Soon)

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