Wednesday, October 6, 2010

Procedural Admission is Lawful for Immigration Purposes

In Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), the Board considered whether the respondent was “admitted” to the United States, i.e., whether she made a “lawful entry” after inspection and authorization by an immigration officer under section 101(a)(13)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(13)(A), where her admission was procedurally regular, but it was not in compliance with substantive legal requirements. The Board found that an alien need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status.
In 2001, the respondent approached the United States/Mexico border as a passenger in a car being driven by her United States citizen friend. At that time, she was not in possession of a valid entry document. She testified that the immigration inspector asked her friend, the driver, whether he was an American citizen but did not ask the respondent any questions. The officer then waved the car through the port of entry. In 2005, the respondent was served with a Notice to Appear charging her with inadmissibility as an alien who entered without inspection and who had no valid entry document. The Immigration Judge found her to be inadmissible as charged and statutorily ineligible for adjustment of status because she had not been “admitted” to the United States withing the meaning of section 101(a)(13)(A) of the Act, which defines the terms “admission” and “admitted” to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”
Previously, in Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), the Board had found that the term “admitted” demanded only procedural regularity and held that an alien who physically presents herself for questioning and makes no knowing false claim to citizenship is “inspected” even though she volunteers no information and is asked no questions by the immigration authorities. Considering whether Congress intended to change this interpretation with the 1996 amendments to the Act, the Board concluded that it did not and reaffirmed Matter of Areguillin. The Department of Homeland Security agreed but argued that the respondent did not establish procedural regularity at the port of entry because she had not shown that she was admitted in a particular nonimmigrant or immigrant status. The Board rejected that contention and remanded the case for adjudication of the respondent’s adjustment application.

Gender as Particular Social Group, 9th Circuit

Perdomo v. Holder, __F.3d__, 2010 WL 2721524 (9th Cir. July 12, 2010): The court granted the petition for review of a Guatemalan woman whose application for asylum had been denied by the Immigration Judge. The petitioner claimed to fear persecution as a member of a particular social group (“PSG”) consisting of Guatemalan women who, she argued, ran a greater risk of being murdered. The Immigration Judge rejected the proposed PSG and the Board affirmed, finding the proposed group to be overly broad. On appeal, the Ninth Circuit noted that although it had not previously held that females alone constitute a PSG, it had found in Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005), that female members of a particular clan met this definition and, in so doing, held gender to be an innate characteristic fundamental to one’s identity. The court also recognized in a footnote that the Third Circuit in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), held that gender constitutes a PSG and that Australia, Canada, and the U.K. had done likewise. The court found that the Board erred in its analysis, noting that it had found innate characteristics to be sufficient for PSG status in cases involving homosexuals and Gypsies. The court also stated that it had rejected proposed groups as overly broad in the absence of a unifying relationship or characteristic to narrow an otherwise diverse and disconnected group. The court pointed out that it had previously rejected the proposition that a group could not be a PSG solely because it constitutes too large a segment of society. Therefore the court remanded for the Board to consider in the first instance whether Guatemalan women constitute a PSG and, if so, whether the petitioner had established a well-founded fear on account of that characteristic.

Failure to Advise Free Legal Services, 3rd Circuit

Leslie v. Att’y Gen. of U.S., __F.3d__, 2010 WL 2680763 (3d Cir. July 8, 2010): The court vacated the decision of an Immigration Judge (affirmed by the Board) ordering the removal of a lawful permanent resident (“LPR”) convicted of the aggravated felony of conspiracy to possess and distribute 50 grams of “crack” cocaine, for which he was sentenced to 168 months of incarceration. The sole basis for vacating was the court’s finding that the Immigration Judge failed to advise the petitioner of the availability of free legal services, as required by 8 C.F.R. § 1240.10(a)(2). The court emphasized that an agency must comply with its own regulations “protecting a fundamental statutory or constitutional right of parties appearing before it” and that the failure to do so will invalidate the agency’s action, even where no prejudice is shown. The court found that the regulation in question falls within this category, because it protects the right to counsel in removal proceedings and derives from the due process right to a fundamentally fair hearing.

2nd Circuit - Fugitive Disentitlement Doctrine

Nen Di Wu v. Holder, __F.3d__, 2010 WL 3023810 (2d Cir. Aug. 4, 2010): The court held in abeyance the Government’s motion to dismiss an asylum seeker’s petition for review under the fugitive disentitlement doctrine. In appealing the Board’s denial of asylum, the petitioner moved the court to stay deportation during the pendency of the petition for review. The Government opposed the motion, prompting a request for a supplemental memorandum regarding its intent to enforce the removal order, and the court issued a temporary stay. The Government issued a “bag and baggage” letter and filed the motion to dismiss with the court some 16 days after the petitioner failed to appear for deportation. Noting its broad discretion to grant or deny a motion to dismiss under the fugitive disentitlement doctrine, the court added that such a decision “should be informed by the reasons for the doctrine and the equities of the case.” The court then discussed the traditional justifications for the doctrine. It also noted the need to consider the equities of the case (including whether the party provided an explanation for its fugitive status), and “the extent to which a party has truly evaded the law.” While the court found that the petitioner “technically” was “seemingly” a fugitive from justice, the record did not provide sufficient evidence to consider the relevant factors mentioned above. The court thus held its decision on the motion in abeyance pending briefing, and possibly oral argument, on the merits.

2nd Circuit Decisions - Costa v. Holder, __F.3d__, 2010

Costa v. Holder, __F.3d__, 2010 WL 2632186 (2d Cir. July 2, 2010): The Second Circuit upheld an Immigration Judge’s decision (affirmed by the Board) that the offense of sexual assault in the second degree under § 53a-71 of the Connecticut General Statutes was categorically an aggravated felony as a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act. The Immigration Judge relied on the Second Circuit’s 2003 decision in Chery v. Ashcroft, 347 F.3d 404 (2d Cir. 2003), which reached the same conclusion. The court dismissed the petitioner’s argument that changes to the applicable Connecticut statute since the time of the court’s decision in Chery rendered the statute divisible and therefore subject to the modified categorical approach.