U.S. Department of Justice Washington, D.C. 20530

Vol. 16, No. 10 October 2012

LITIGATION HIGHLIGHTS Ninth Circuit En Banc Untangles Application of Ret- roactivity Principles when Chevron Deference Un- ADJUSTMENT der Brand X is Given to an Interpretation by the BIA ►Prior removal form United States rendered applicant ineligible for ad- Pursuant to the “Judicial Power” Ninth Circuit in Garfias-Rodriguez v. justment (7th Cir.) 15 Holder, __F.3d__, 2012 WL 5077137  vested in Article III courts over cases ASYLUM arising under the Laws of the United (9th Cir. Oct. 19, 2012). The court’s States, when a U.S. Court of Appeals discussion is rooted in the BIA’s role ►Spouse of an individual forced to interprets a federal statute, it pro- as the authoritative interpreter of undergo an abortion under China’s vides an authoritative statement of its ambiguous INA provisions as ex- coercive population control policy is meaning and announces the law of plained in Chevron, U.S.A., Inc. v. Nat- not automatically entitled to asylum the circuit. Moreover, when the court ural Res. Def. Council, Inc., 467 U.S. (1st Cir.) 13 as a judicial decisionmaker also 837 (1984), and Nat’l Cable & Tele- ►Persons returning from the Unit- changes the law of the circuit, it fol- comms. Ass’n v. Brand X Internet ed States with citizen children, and lows that the analysis in Chevron Oil Servs., 545 U.S. 967 (2005), and perceived as wealthy, are not a partic- Co. v. Huson, 404 U.S. 97 (1971), pursuant to the “Executive Power” to ular social group (1st Cir.) 13 which sets forth retroactivity factors to ensure that the laws be faithfully exe- ►Department of State Country Re- consider when a court changes the cuted. See U.S. Const. art. II sec. 1, ports sufficient to rebut presumption law is controlling. sec. 3. of future persecution (10th Cir.) 21

CONVENTION AGAINST TORTURE Although these principles are Understanding the en banc well settled in the Ninth Circuit, their court’s opinion requires an under- ►CAT denial remanded to BIA be- applicability when the BIA construes standing of the complex procedural cause it did not apply the clear error the meaning of an ambiguous INA posture in which the case arrived in standard of review (9th Cir.) 17 provision in a precedential decision CRIME was recently decided by the en banc (Continued on page 2)

►Attempted kidnapping under Cali- fornia law is categorically a crime of violence (9th Cir.) 18 Alien , and Related Curiosities ►Risk of injury to child under Con- necticut law is not “sexual of a Immigration is about relation- counterpart – unmarriage, or di- minor” under INA (1st Cir.) 13 ships. Central to our regulation of vorce – must also be given its due.  who may visit or join our society are As the sage observed, a good mar- WAIVER familial bonds which may or may not riage is a treasure, but a good di- ►Constitutional challenge to regu- conform to the requirements of our vorce is a miracle. lation governing religious visas proce- laws and jurisprudence. See Ezer, dures rejected (9th Cir.) 18 The Intersection Of Immigration Law This note takes a look at the and Law, 40 Fam. L. Q. 339 immigration aspects of divorce. (Fall 2006). Because can Paul Simon counseled that there are both confer and preclude immigra- “50 Ways To Leave Your Lover,” but Inside tion benefits, the ques-tion whether breaking up without a righteous di- a marriage has been properly dis- vorce can bust more than the alien’s 12. Further Review Pending solved may be as important as heart. As Professor Friedman ex- 13. Summaries of Court Decisions knowing whether it was lawfully con- plains, divorce may have economic, tracted. Our clients and the courts moral, and symbolic meaning, but it 19. Topical Parentheticals rightfully give considerable attention is above all a legal matter. Fried- 22. Inside OIL to the institution of marriage, but its (Continued on page 3)

1 October 2012 Immigration Litigation Bulletin

cy decision as though it had issued Retroactivity of BIA’s Branded X Decisions from the court itself.” (Continued from page 1) of the interplay between sections 212 the Ninth Circuit. The Garfias line of (a)(9)(C)(i)(I) and 245(i) in Matter of Third, the court rejected the gov- cases, which involves § 212(a)(9)(C) Briones, 24 I. & N. Dec. 355 (BIA ernment’s position that the BIA, as the (i)(I) (unlawful re-entry following un- 2007), finding that aliens inadmissi- authoritative interpreter of an ambigu- lawful presence) follows a track paral- ble under 212(a)(9)(C)(i)(I) were ineli- ous statute, has issued an interpreta- lel to a line of cases addressing § 212 gible to adjust status under 245(i). tion in Briones that is comparable to a (a)(9)(C)(i)(II) (unlawful re-entry follow- The Ninth Circuit next issued Gonza- judicial construction of a statute and ing prior removal). After Congress les v. Dep’t of Homeland Sec., 508 is an authoritative statement of what amended the INA by adding the inad- F.3d 1227 (9th Cir. 2007), where it the statute meant before as well as missibility provisions of § 212(a)(9)(C) accorded Chevron deference under after the decision of the case giving for recidivist immigration violators, Brand X to the authoritative interpre- rise to that construction. The court the former INS issued a memoran- tation of section 212(a) clarified that agency dum providing that aliens inadmissi- (9)(C)(i)(II) as set forth decisions are not anal- ble under § 212(a)(9)(C) were not in Torres-Garcia. Because the BIA is ogous to court deci- sions because an eligible to adjust status under § 245 “the authoritative arbi- (i). Immigration judges routinely fol- Subsequently, in agency interpretation lowed this guidance, and their deci- Morales-Izquierdo v. ter” of the meaning of is not a once-and-for- sions were affirmed in unpublished Dep’t of Homeland ambiguous provisions always definition of BIA decisions. Sec., 600 F.3d 1076 of the INA, Briones, what the statute (9th Cir. 2010), the and not the court’s de- means, but an act of In 2004, the Ninth Circuit issued court applied Gonzales cision according defer- interpretation in light Perez-Gonzalez v. Ashcroft, 379 F.3d retroactively to all cas- of its policymaking 783 (9th Cir. 2004), where it rejected es open on direct re- ence to Briones, responsibilities that the former INS memorandum’s appli- view. In doing so, the “announced” and may be reconsidered cation to § 212(a)(9)(C)(i)(II), and con- court explained that, “changed” the law of “on a continuing ba- cluded that aliens inadmissible under when it accords defer- the circuit. sis.” 212(a)(9)(C)(i)(II) were eligible to ad- ence to the BIA’s au- just status under 245(i). Perez- thoritative interpreta- Fourth, because Gonzalez relied on former §§ 212.2 tion of the INA, it “adopts” that inter- the court determined that the BIA, and (e) and (i)(2) of the regulations to rec- pretation as its own. Morales- not the court as a judicial deci- oncile the inadmissibility provision Izquierdo, 600 F.3d at 1089-90. sionmaker, “changed” the law of the with the special adjustment of status More specifically, the court ruled that circuit, it follows that the analysis in provision. a statute can only have one meaning Montgomery Ward & Co. v. FTC, 691 and that the court’s decisions estab- F.2d 1322 (9th Cir. 1982), which sets Two years later, exercising its lish that meaning, regardless of the forth retroactivity factors to consider authority under Brand X, the BIA is- relevant adjudicatory history. Id. at when an agency changes its law is sued an authoritative interpretation of 1089. In Garfias, the en banc court controlling. After applying the Mont- the interplay between §§ 212(a)(9)(C) overruled Morales-Izquierdo’s ra- gomery Ward test, the court held that (i)(II) and the regulations in Matter of tionale. the BIA’s decision may be applied ret- Torres-Garcia, 23 I. & N. Dec. 866 roactively to Mr. Garfias. (BIA 2006), finding that, because the First, the en banc court unani- regulations predated section 212(a) mously deferred to the BIA’s permissi- Finally, an eight judge majority (9)(C)(i)(II), they could not be reasona- ble interpretation of the interplay be- held that 8 C.F.R. § 1240.26(i), which bly construed as implementing the tween §§ 212(a)(9)(C)(i)(I) and 245(i) terminates any grant of voluntary de- statute. Shortly thereafter, the Ninth in Briones. parture upon the filing of a petition for Circuit, relying on Perez-Gonzalez, judicial review of a removal order, was issued a decision in Acosta v. Gonza- Second, a highly fragmented a proper exercise of the Attorney Gen- les, 439 F.3d 550 (9th Cir. 2006), court, which resulted in a 6-1-1-1-2 eral’s authority under §§ 240B(b)(1) where it rejected the former INS mem- split decision, held that, because the and 240B(e), and that the court pos- orandum’s application to section 212 BIA is “the authoritative arbiter” of the sesses no equitable authority to stay (a)(9)(C)(i)(I) and concluded that al- meaning of ambiguous provisions of voluntary departure periods contrary iens inadmissible under 212(a)(9)(C) the INA, Briones, and not the court’s to the Attorney General’s regulation. (i)(I) were eligible to adjust status un- decision according deference to Brio- der 245(i). nes, “announced” and “changed” the By Luis Perez, OIL law of the circuit. To hold otherwise, 202-353-8806 Later the next year, the BIA is- the court noted, “would ignore the sued the authoritative interpretation effect of Chevron and treat the agen-

2 October 2012 Immigration Litigation Bulletin

years of his or her LPR admission). & Under INA Cf. 8 C.F.R. § 214.2 (k)(5) (non- (Continued from page 1) immigrant fiance(e) visas contem- man, Rights of Passage: Divorce 8 U.S.C. § 1101(a)(35). See Ed- plate marriage within 90 days of the Law In Historic Perspective, 63 Or. L. wards, Kicking The INA Out Of Bed: alien’s admission). Rev. 649 (1984). Abolishing The Consummation Re- quirement For Proxy Marriages, 22 Save for these several immigra- The Definition Of Divorce Hastings Women’s L. J. 55 (2011). tion provisions, federal marital law Earlier, proxy marriages had been has been largely limited to enact- The Supreme Court has de- acceptable for immigration purposes. ments for the governance of the Dis- clared marriage to be “one of the See, e.g., United States ex rel. Aznar trict of Columbia, the territories, and ‘basic civil rights of man,’ fundamen- v. Commissioner of Immigration, 298 the Panama Canal. See, e.g., Act of tal to our very existence and surviv- F. 103, 105 (S.D. N.Y. 1924). Mar- September 29, 1965, Pub. L. No. 89- al.” Loving v. Virginia, 388 U.S. 1, riage under the im- 217, 79 Stat. 889 12 (1967), quoting Skinner v. State migration statutes (District of Columbia, of Oklahoma, 316 U.S. 535, 541 was deemed gender- The Supreme Court divorce for adultery, (1942). The Court, a little less restricted. See, e.g., desertion, cruelty, or breathlessly, has observed, Adams v. Howerton, has declared felony conviction, 673 F.2d 1036 (9th and for Divorce, like marriage, is of con- Cir.), cert. denied, marriage to be “one bigamy, lunacy, coer- cern not merely to the immediate 458 U.S. 1111 of the ‘basic civil cion, or incapacity); parties. It affects personal rights (1982) (homosexual Act of September 21, of the deepest significance. It marriage does not rights of man,’ 1922, Pub. L. No. also touches basic interests of qualify for INA 332, 42 Stat. 1004, society. “immediate relative” fundamental to our 1008 (Panama Ca- classification). See very existence and nal, divorce for impo- Williams v. North Carolina , 325 U.S. also Defense of Mar- tence, bigamy, adul- 226, 230 (1945). And the Court has riage Act, Pub. L. No. survival.” tery, desertion, ne- held that access to divorce is guar- 104-199, 110 Stat. glect, habitual drunk- anteed by the due process clause. 2419 (1996), codi- enness, attempted Boddie v. Connecticut, 401 U.S. 371, fied at 1 U.S.C. § 7 (2006)(defining spousal murder, cruelty, or felony 376 (1971). But despite the consti- marriage as “only a legal union be- conviction). See also Reynolds v. tutional significance of marriage and tween one man and one woman”). United States, 98 U.S. 145, 164-66 divorce, and its often critical signifi- Cf. 8 U.S.C. § 1101(b) (defining (1878)(sustaining a convic- cance for tax, immigration, and other “child”, “parent”, “father”, and tion under the criminal code of the statutory matters, there is relatively “mother” for immigration purposes). Utah Territory); Matter of Agbulos, 13 little federal law on the making and I&N Dec. 393 (BIA 1969)(recognizing breaking of marital bonds. The INA’s limits on marriage tribal marriage pursuant to the mari- included exclusion and deportation tal law established by the U.S. Mili- Neither the Immigration and for plural unions, a constraint that tary Government of the Philippines). Nationality Act nor the immigration remains in the law today. 8 U.S.C. Congress otherwise left to the States regulations define “divorce”. See §§ 1182(a)(10)(A), 1227(a)(1)(A). the enactment of laws for the making generally Gordon, Mailman & Yale- However, for individuals who limit and breaking of marital unions. Loehr, 3 Immigration Law And Proce- their enjoyment to one spouse at a dure, Chap. 36, Immediate Relatives time, Congress until recently has In contrast to the plurality and (Bender rev. ed.). Immigration law is been indifferent to the number or gender constraints on marriage, similarly silent regarding the institu- frequency of our marriages and di- there are no federal limits on who tion of marriage, except to limit vorces. But see Act of August 10, may divorce. As discussed below, “proxy” marriages. 1939, Pub. L. No. 366, ch. 638, 53 divorce for immigration purposes Stat. 1341 (prohibiting under crimi- involves the application of local law. The term [sic] “spouse”, “”, or nal penalty the use of the mails for While marriage usually depends upon “” do not include a solicitation of the procurement of the law where the union was cele- spouse, wife, or husband by rea- divorce in foreign countries). The brated (lex loci celebrationis), divorce son of any marriage ceremony 1986 Immigration Marriage Fraud generally is determined by the alien’s where the contracting parties Amendments added several “time- domicile, the availability and proce- thereto are not physically present sensitive” marital provisions to the dures for dissolving a marriage being in the presence of each other, INA. E.g., 8 U.S.C. § 1154(a)(2) dependent upon the family law of the unless the marriage shall have (barring second preference visas state or foreign country in question. where the alien re-marries within five been consummated. (Continued on page 4) 3 October 2012 Immigration Litigation Bulletin

States and China, consuls might pre- Marriages & Divorces Under INA side over marriages, divorces, and (Continued from page 3) similar matters for United States citi- International law similarly leaves finding “limited purpose” marriage to zens in that country. Compare Cele- divorce and related matters to local gain husband’s admission was not bration Of Marriages By Consuls, 7 practices and preferences. There is void). There is an analogous differ- U.S. Op. Atty. Gen. 18 (1854), with a general divorce treaty, the Hague entiation in divorce. Void divorces United States Judicial Authority In Convention On The Recognition Of are those contrary to public policy, China, 7 U.S. Op. Atty. Gen. 495 Divorces And Legal Separations typically where the divorcing authori- (1855). Before 1989, consular offic- (978 U.N.T.S. 399, 1 June 1970), ty lacks jurisdiction (for lack of the ers issued “certificates of witness to but the treaty imposes no standards parties’ domicile or presence), or marriage,” but offered no corre- on divorce and the United States is where there is no notice to one of the sponding services for divorce. Today, not a signatory. spouses. See generally Harper, The our foreign service officers are ex- Validity of Void Di- pressly “forbidden to A critical distinction between vorces, 79 U. Pa. L. celebrate marriag- marriage and divorce is that there is Rev. 158 (1930). Cf. Before 1989, consular es,” and are limited no such thing as “common law” di- Abrams, Marriage officers issued to authenticating vorce. See, e.g., Glover v. Bowen, Fraud, 100 Cal. L. foreign marriage and 1987 WL 123580 (N.D. Ala. 1987). Rev. 1 (2012). Void- “certificates of witness divorce records See generally Common Law Mar- able divorces are to marriage,” but of- (whereby they generally salvagea- riage @ http://en.wikipedia.org/wiki/ fered no corresponding “assume no respon- Common-law_marriage (visited Mar. ble void divorces; sibility” for the record 7, 2012). See also Meister v. Moore, that is, defective services for divorce. To- contents). See 22 96 U.S. 76 (1877) (adoption of state divorces that are day, our foreign service C.F.R. Part 52; 7 For- marriage statute not presumed to cured by valid re- eign Affairs Manual bar common law marriage); Matter marriage or equitably officers are expressly 1413, 1461-62. of F –, 5 I&N Dec. 163 (BIA 1953) protected from sub- “forbidden to celebrate sequent challenge. (common law marriages valid for marriages.” The Attorney General immigration purposes). Cf. Matter of The taxonomy for has long determined M –, 7 I&N Dec. 601 (BIA 1957) “migratory” divorces the immigration con- (discussing common law marriage obtained in jurisdictions other than sequences of marriage and divorce. and sexual relations). While many the marital domicile includes For example, in response to an ad- jurisdictions recognize common law “bilateral”, “ex parte”, and “practical missibility inquiry by the Secretary of or consensual marriages, none ac- recognition” divorces (i.e., where the Labor, Attorney General Cummings cepts the notion of consensual or do- party attacking the decree is preclud- opined regarding the citizenship of it-yourself divorce. Common Law ed from doing so because of estop- an American woman who married Marriage, supra. Once married, by pel, laches, unclean hands, or similar and divorced two Danish citizens. ceremony, common law, or other- equitable constraints). See, e.g., Citizenship Of Mrs. Marion Thor- wise, dissolution of the union re- Black’s Law Dictionary 549-51 (9th gaard, 37 U.S. Op. Atty. Gen. 206 quires intervention by a court or oth- ed. 2009). See also 7 Foreign Af- (1933). Similarly, the Attorney Gen- er third party. Id. Importantly, one fairs Manual 1460. eral has passed upon the derivative cannot end a marriage by attempting citizenship of the minor, foreign-born to enter into a second union. A di- The Immigration Agencies And children of women who “resumed” vorce must first be obtained to dis- Divorce their United States citizenship under solve the prior marriage or the se- the Cable Act after divorce from or cond marriage will be void. Despite the paucity of federal the death of their foreign . family law, our administrative agen- E.g., Citizenship of Minor Child Of Marital law differentiates be- cies are regularly involved in mar- Native American Mother And Spanish tween void and voidable marriages. riage and divorce. See generally Father, Divorce Of Parents, 37 U.S. See generally Gordon, Mailman & Levy, The Family In Immigration And Op. Atty. Gen. 90 (1933); Citizenship Yale-Loehr, Immigration Law and Nationality Law: Part I, 92-09 Immi- of R. Bryan Owen, 36 U.S. Op. Atty. Procedure, ¶ 36.02[2][a]. A void gration Briefings 1 (Sept. 1992). For Gen. 197 (1929). See, e.g., In re marriage has no validity; a voidable example, United States consular of- Lazarus, 24 F.2d 243 (N.D. Ga. marriage is recognized as long as the ficers once married our citizens and 1928). marriage persists. Id. See, e.g., other nationals at posts abroad. The Mpiliris v. Hellenic Lines, Ltd., 323 F. Attorney General opined that such Our contemporary immigration Supp. 865, 876-82 (S.D. Tex. 1969), officers lacked the authority to do so, adjudicators can neither marry nor aff’d, 440 F.2d 1163 (5th Cir. 1971) but he also concluded that by virtue divorce aliens, but they do routinely of the treaty then between the United (sustaining ’s Jones Act claim, (Continued on page 5) 4 October 2012 Immigration Litigation Bulletin

subsequent Jerusalem marriage was Marriages & Divorces Under INA monogamous for visa purposes). (Continued from page 4) See also Matter of P – and S –, 5 I&N pass on questions regarding marital See also State of Ohio ex rel. Popo- Dec. 1 (BIA 1947)(coerced, racially- status. Many immigration issues can vici v. Agler, 280 U.S. 379 (1930) based divorce decrees issued during turn on the existence and validity of (state, not federal, courts are the the Hitler regime held valid, subject a divorce, including any matter in appropriate forum for foreign diplo- to reinstatement of the marriage by which it is relevant to ask whether mat’s divorce). subsequent decree recognizing the the alien is married (and if so, to union by a court of competent juris- whom). For example, divorce may be Like marriage, a divorce that is diction). The bar to “mail order” di- a part of admission (e.g., as an immi- valid where rendered generally is vorces may not be absolute if either grant by virtue of being the spouse or deemed valid for immigration pur- spouse has had some contact with the unmarried son or daughter of a poses. As the Board explained in the divorcing jurisdiction, and, as citizen or lawful permanent resident, Matter of Luna, 18 noted below, a good 8 U.S.C. § 1153(a)), removal (e.g., as I&N Dec. 385 (BIA re-marriage can an alien who misrepresented his or 1983), sometimes cure a her marital status, or had married The Board-recognized bad divorce. See, twice without intervening death or The general e.g., Matter of W –, 8 divorce, 8 U.S.C. § 1182(a) (6)(C), (a) rule is that a de- public policy I&N Dec. 16 (BIA (10)(A)), removal relief (e.g., as an cree of divorce constraints preclude 1958). valid where ren- alien whose removal would cause immigration recognition hardship to a citizen or LPR spouse dered is valid every- Relia nc e on or child, 8 U.S.C. § 1229b(b)), ad- where and will be of “mail order” divorces local law to ascertain justment of status (e.g., as an alien recognized either and divorces insuffi- an alien’s marital who is admissible and family visa under the “full faith status may not be eligible, 8 U.S.C. § 1255(a)), deriva- and credit” clause cient to resolve plural limited to foreign tive benefits (e.g., as the spouse or of the United marriage issues. judicial decrees. child of an alien asylee, 8 U.S.C. § States Constitu- See, e.g., Matter of 1158(b)(3)), or naturalization (e.g., tion, or in the case Lashkevich, 12 I&N as an alien barred from good moral of divorces ren- Dec. 22, 25-26 (BIA character by plural marriage, 8 dered in foreign countries, under 1966)(sustaining the appeal of a visa U.S.C. §§ 1101(f)(2), 1427(a)). the principle of comity, provided denial upon foreign certification that Plainly, much of the INA necessarily that recognition would not contra- alien was “single”). requires our immigration adjudica- vene public policy. tors to determine the validity and [W]e find it unnecessary to rest effect of alien divorce. 18 I&N Dec. at 386, citing 27B our decision upon the C.J.S., Divorce, sections 326-333 [beneficiary’s] religious divorce . . . Despite the statutory and regu- (1959). See also Shikof v. Murff, [T]he civil status of a person, de- latory silence regarding alien divorce, 257 F.2d 306, 308-09 (2d Cir. termined in accordance with the the administrative jurisprudence is 1958)(discussing types of non- laws of the country of which she is substantial and shows the following: judicial divorce; an Islamic divorce a national and in which she resid- obtained in New York held not valid). ed, and who has no United States (1) Alien divorce is first a question residence or domicile, should, on of local law. The Board-recognized public the basis of comity, be accorded policy constraints preclude immigra- recognition of the civil status ac- The Board has rejected a call tion recognition of “mail order” di- corded to her by the laws of such for uniform federal standards for vorces and divorces insufficient to country. alien marriage and divorce, declaring resolve plural marriage issues. See, that “it is the function of the state to e.g., Matter of Hoefflin, 15 I&N Dec. See also Matter of Dabaase, 16 I&N determine how its residents may 31 (BIA 1974)(visa not supported Dec. 39 (BIA 1976)(proof necessary enter into the marital relationship.” where Michigan law, the place of the to establish a customary or tribal di- Matter of Hosseinian, 19 I&N Dec. second marriage, did not recognize vorce), aff’d sub nom. DaBaase v. 453, 455 (BIA 1987). See, e.g., the “mail order” Mexican divorce INS, 627 F.2d 117 (8th Cir. 1980). Matter of Levine, 13 I&N Dec. 244 dissolving the first marriage); Matter Cf. Op. Gen. Counsel No. 96-14, Ef- (BIA 1969); Matter of P –, 4 I&N Dec. of Darwish, 14 I&N Dec. 307 (BIA fect Of State Court Judgment On Sec- 610 (BIA 1952; Atty. Gen. 1952). 1973)(foreign decree irregular under tion 216 “Good Faith” Waiver, 1996 The same is true for dissolving mar- Dominican Republic law, but recog- WL 33166345 (INS)(citing possibility riage. See, e.g., Williams v. North nized under Jordanian-Muslim law, of collusion in divorce; state court held insufficient to establish that Carolina, supra, 325 U.S. at 232-33. (Continued on page 6) 5 October 2012 Immigration Litigation Bulletin

(recognizing a Connecticut marriage Marriages & Divorces Under INA predicated on a Mexican divorce ob- (Continued from page 5) tained by two aliens domiciled and ruling that parties did not marry for Separation, sections 964-965; An- residing in other countries). immigration purposes is not control- not., 13 A.L.R.3d 1419 (1967). Ac- ling). The immigration agencies ac- cord, Matter of Dagamac, 11 I&N The courts of this country have cord extra-judicial (“customary”) di- Dec. 109 (BIA 1965)(a “mail order” been in perpetual conflict as to vorces careful scrutiny. See, e.g., divorce decree is invalid and will not the application of the laws of the Matter of Nwangwu, 16 I&N Dec. 61 be recognized). But see Matter of place of divorce or marriage and (BIA 1975)(extra-judicial divorce re- Jimenez, 18 I&N Dec. 182 (BIA the place where recognition of the quires adherence to local ethnic or 1981) (recognizing as valid a Domini- divorce or marriage is sought . . . tribal formalities); see also Matter of can Republic mutual consent divorce [But] [t]he rules of comity may not Kumah, 19 I&N Dec. 290 (BIA 1985) which, under Dominican law, re- be departed from except . . . for (alien’s failure to persuade Ghanaian quired neither domi- the purpose of nec- cile nor presence of authorities fatal to claim of custom- essary protection of ary tribal divorce). Because it is bot- either party). Cf. While the divorce our citizens or in tomed on the widely variable state Williams v. North enforcing some and foreign marital law, alien divorce Carolina, supra, itself may depend paramount rule of can challenge counsel and court (sustaining biga- public policy. alike. mous upon foreign law, conviction where the jurisdiction 2 I&N Dec. 885-86. (2) The law that governs alien North Carolina de- Because the foreign divorce generally depends on clined to recognize of the divorcing divorce judgment domicile. Nevada divorce). authority ordinarily was valid in Mexico, there was no conflict To be valid for immigration pur- The require- will be determined with Connecticut’s poses, a divorce decree must be ment of domicile is public policy and issued by a court or authority having not absolute, howev- under our law. morals (the place of competent jurisdiction. While the er, and may yield to re-marriage), and divorce itself may depend upon for- the rule that the va- there was no avoid- eign law, the jurisdiction of the di- lidity of an alien’s re-marriage (and ance of the laws of any United States vorcing authority ordinarily will be hence the immigration validity of his domicile, the Board concluded that a determined under our law. or her divorce) will be governed by visa should be granted. Id. See also the law of the place of celebration. Matter of San Juan, 17 I&N Dec. 66 A foreign court must have juris- See, e.g., Matter of P–, supra (fact (BIA 1979)(despite the failure to sat- diction to render a valid [i.e., rec- that prior marriage was dissolved by isfy the jurisdictional requirements ognizable] decree, and the appli- Mexican in absentia divorce while for Puerto Rican divorce, INS cannot cable tests of jurisdiction are or- spouses resided in the United States withhold recognition to deny visa dinarily those of the United does not bar application of the gen- based on subsequent New York mar- States, rather than of the divorc- eral rule that the validity of a subse- riage where neither Puerto Rico nor ing country. quent marriage is governed by the New York would permit such collat- law of the place of celebration (here, eral attack); Matter of I –, 1 I&N Dec. Matter of Luna, supra, 18 I&N Dec. Germany)), overruling Matter of O –, 627 (BIA 1943)(Oklahoma marriage at 386. Immigration recognition of a 3 I&N Dec. 33 (BIA; Atty. Gen. 1949) voidable for breach of 6 month wait- divorce decree ordinarily requires (in absentia divorces are invalid for ing period after Missouri divorce, suf- that the domicile of at least one of immigration purposes if obtained ficient for suspension eligibility). For the spouses be in the divorcing juris- while either party was domiciled or divorcing aliens (as well as others), diction. physically present in the United “domicile” depends on intent, and States). See also Chinese Divorce has its own dense and often confus- [A] divorce obtained in a foreign Valid Even Without Physical Appear- ing jurisprudence. country will not normally be rec- ance, 83 No. 27 Interpreter Releases ognized as valid if neither of the 1484 (July 2006). Absent compel- (3) Alien divorce must be final, ab- spouses had a domicile in that ling policy reasons to the contrary, solute, and bona fide. country, even though domicile is the Board has been willing to over- not a requirement for jurisdiction look divorce defects, even when the Historically, we have recognized under the divorcing country’s spouses had no domicile and but three avenues of marital dissolution: laws. little presence in the divorcing juris- annulment (as if the marriage never diction. See, e.g., Matter of McG –, 2 occurred), absolute divorce (divorce a I&N Dec. 883 (BIA 1947) Id., citing 24 Am.Jur.2d, Divorce and (Continued on page 7) 6 October 2012 Immigration Litigation Bulletin

1238 (9th Cir. 1979), cert. denied, Marriages & Divorces Under INA 449 U.S. 828 (1980)(sham marriage: (Continued from page 6) “Conduct and lifestyle before and vinculo matrimonii), and limited “bed 1974). See also Matter of E–, 2 I&N after the marriage are relevant . . . in and board” divorce (divorce a menso Dec. 328 (BIA, Atty. Gen. 1945) determining the intent of the par- et thoro, or ). As (bigamy under state law, by re- ties”). That is, immigration adjudica- discussed below, alien annulment marriage during one year pendency tors may look to the couple’s intent presents special concerns. For im- of interlocutory divorce decree, to live together as proof of a suffi- migration purposes, alien divorce deemed crime involving moral turpi- cient union (see, e.g., Matter of Lau- must be absolute, restoring the alien tude). reano, 19 I&N Dec. 1, 3 (BIA 1983)), to a single, unmarried status. See In but as long as a divorce was not ob- re Lazarus, supra, 24 F.2d at 244 Alien divorce must be in good tained for immigration purposes, the (“Total divorce, equally with . . . faith. See, e.g., Matter of Alde- bona fides of the marital dissolution death, terminates the marital rela- coaotalora, 18 I&N do not seem to mat- Dec. 430 (BIA 1983) tionship”). Legal separation is not ter. sufficient. See, e.g., Matter of Miral- (visa denied where do, 14 I&N Dec. 704 (BIA 1974)(a beneficiary admitted While sham (4) Alien annulment Brazilian “amicable divorce” is a le- she divorced solely divorces usually is a whole different gal separation that does not permit to obtain immigra- matter. re-marriage, and thus was insuffi- tion benefits as un- don’t count, the cient under the INA to accord married child of law- jurisprudence has The Board has “unmarried” status); Matter of Fer- ful permanent resi- acknowledged that reira, 14 I&N Dec. 723 (BIA 1974) dent); accord, In re yet to develop a “the issue of void, (Portuguese court separation decree Mauricia-Valverde, voidable, and an- does not terminate marriage). See visa petition benefi- divorce equivalent nulled marriages [is] also USCIS, Adjudicator’s Field Man- ciary, 2009 WL of the “bona fide” a difficult one.” Mat- ual, § 21.3(a)(2), 2007 WL 1103517 (BIA 2009) ter of Astorga, 17 3376347 (“A legal separation is not (unpub.). Cf. Boyter marriage. I&N Dec. 1, 3 (BIA proof of marital capacity”). Of v. Comm’r, 74 Tax 1979). Central to course, while legal separation won’t Court 989 (1980) the conundrum is the work for immigration purposes, it (annual divorce and re-marriage inva- immigration effect of judgments that may be enough for naturalization lid for tax purposes), remanded, 668 declare the marriage never to have (i.e., derivative citizenship). See, F.2d 1382 (4th Cir. 1981); accord, existed. The Board has wrestled with e.g., Nehme v. INS, 252 F.3d 415, Rev. Rul. 76-255, 1976-2 C.B. 40, annulment’s “relation back” doctrine. 422-24 (5th Cir. 2001); Wedderburn 1976 WL 37839 (IRS). As with mar- v. INS, 215 F.3d 795, 799 (7th Cir. riages, the immigration agencies Generally . . . marriages declared 2000), cert. denied, 532 U.S. 904 have recognized the concept of void at inception, or annulled, will (2001). Cf. Matter of H –, 3 I&N “sham divorces”. See, e.g., Interpret- not relate back to cure a ground Dec. 742 (parents cannot “separate” ing A “Pro Forma” Russian Divorce, of exclusion or deportation at the under the immigration statutes if Legal Op. No. 93-64, 1993 WL time of entry . . . to avoid manipu- they were never married). 1504011 (INS 1993)(an alien may lation of immigration priorities not disavow a voidable divorce ob- through changes in marital status Alien divorce also must be final. tained to facilitate immigration); In re not undertaken in good faith . . . Compare, e.g., Matter of Souza, 14 Miroslava Gonzales, visa petition Conversely, however . . . in certain I&N Dec. 1 (BIA 1972)(alien not qual- beneficiary, 2007 WL 4182294 (BIA instances, retroactive effect ified for fiancee visa where divorce – 2007)(unpublished; a sham divorce should not be given an annul- from first fiancee – was not yet final), will not be given effect). But see In ment . . . where no immigration with In re Saunders, 2006 WL re [Applicant], 1995 WL 1796754 fraud was noted and where injus- 1558871 (BIA 2006)(unpublished; (INS AAU Bangkok) (exclusion waiver tice would result . . . . adjustment qualification de-pends granted notwithstanding sham di- on divorce finality). Both the Board vorce). Cf. Drinker, Problems of Pro- Matter of Astorga, supra, 17 I&N and legacy INS have concluded that fessional Ethics In Matrimonial Liti- Dec. at 3 (citations omitted). In As- the finality of foreign divorces is a gation, 66 Harv. L. Rev. 443 (1953) torga, the Board reaffirmed its gen- question to be determined under the (discussing divorce collusion). While eral rule that marriages declared void foreign law. Validity of Foreign Di- sham divorces usually don’t count, at inception or annulled will not relat- vorces and Subsequent Remarriage, the jurisprudence has yet to develop ed back to cure a ground of exclusion Legal Op. No. 97-9, 1997 WL a divorce equivalent of the “bona or deportation based on the alien’s 33169239 (INS 1997), citing Matter fide” marriage. Compare, e.g., Gar- entry as unmarried. 17 I&N Dec. at cia-Jaramillo v. INS, 604 F.2d 1236, of Ma, 15 I&N Dec. 70, 71 (BIA (Continued on page 8) 7 October 2012 Immigration Litigation Bulletin

tion where record failed to show that Marriages & Divorces Under INA annulment granted for marriage (Continued from page 7) fraud established immigration fraud). misrepresentation). The case law suggests that the immi- 4, reaffirming Matter of Wong, 16 I&N Dec. 87 (BIA 1977); Matter of R gration effect of alien annulment is As with other marital issues, the particularly unpredictable. – J–, 7 I&N Dec. 182 (BIA 1956). immigration effect of Accord, Matter of Magana, 17 I&N may depend upon the local law. See, (5) A good divorce cannot cure a Dec. 111 (BIA 1979)(no relation e.g., Matter of Samedi, 14 I&N Dec. back to cure entry fraud). See, e.g., bad marriage (but a good marriage 625 (BIA 1974)(adjustment denied may fix a bad divorce.) Hendrix v. INS, 583 F.2d 1102, where, under local law, marriage 1104 (9th Cir. 1978)(annulment annulled for non-immigration fraud If an alien’s marriage is defec- would not relate back to cure visa was declared void ab initio); Matter fraud, nor could alien assert that tive or problematic for immigration of Labiano, 11 I&N Dec. 200 (BIA purposes, divorce alone will not help. disqualifying marriage was not bona 1965)(visa revoked where, under fide). Similarly, annulment will not Thus, for example, an alien who state law, the underlying marriage “needs” to be unmarried or singularly cure marriage fraud. was prohibited for See, e.g., In re married for admission or adjustment barred degree of cannot fix his or her problem simply Gomes Soares, visa consanguinity and petition beneficiary, If an alien’s by dissolving the offending union. deemed “void with- See, e.g., In re Medrano-Segovia, visa 2009 WL 1653742 out [need for] any (BIA 2009) marriage is petition beneficiary, 2006 WL decree of divorce or 3922262 (BIA 2006) (unpublished; (unpublished; state defective or prob- annulment”). But denial of annulment unmarried child visa automatically both the Board and revoked upon the alien’s marriage, a held not to preclude lematic for immi- the courts have finding of marriage defect not cured by subsequent final concluded, divorce); Matter of H–, 9 I&N Dec. fraud). Moreover, gration purposes, post-entry annul- 640 (BIA 1962)(second, polygamous The fact that the marriage valid under Jordanian law ments may be divorce alone will law of the jurisdic- viewed as indicia of would not support visa petition, and not help. tion in which the defect was not cured by the alien’s immigration fraud. annulment was See, e.g., Small v. divorce of first wife after second mar- granted deem[s] riage). See also Matter of Ali, 2007 INS, 438 F.2d 1125 annulled marriag- (2d Cir. 1971). WL 4707517 (BIA 2007) es void ab initio [is] not control- (unpublished; second, polygamous ling. On the other hand, annulments marriage valid under Yemeni law would not support visa petition, and may be deemed to “relate back” in Garcia v. INS, 31 F.3d 441, 444 (7th immigration cases to prevent fraud. defect was not cured by first wife’s Cir. 1994)(sustaining deportability subsequent death). See generally Matter of T –, 8 I&N for visa misrepresentation). Further Dec. 493, 495 (BIA 1959) complicating questions regarding the DHS and EOIR look to the al- (discussing deportation upon the applicability of the “relation back” annulment of “gigolo” marriages). In ien’s marital status at the time of the doctrine, the particular law under immigration application or petition. If the absence of fraud, the Board has which the annulment was obtained chosen to apply (or not apply) the the alien has too many (or too few) may differentiate between annul- spouses at that time, he or she must doctrine as “justice” dictates. See, ments that are effective upon decree e.g., Matter of Castillo-Sedano, 15 correct the problem and then and those that dissolve the marriage reapply. See, e.g., In re Pelayo- I&N Dec. 445 (BIA 1975)(where an- from its inception. Compare, e.g., nulment obtained by default judg- Martinez, visa petition beneficiary, Matter of V –, 6 I&N Dec. 153 (BIA 2008 WL 5181831 (BIA 2008) ment and no evidence of fraud, an 1954)(deportation, marriage an- alien’s immigration status does not (unpub.; visa denied where alien re- nulled for fraud ab initio under Cali- married relying on fraudulent divorce, revert back to his or her pre- fornia law could not support a visa), marriage status); McGreath v. Hold- a defect not cured by a post-petition with Matter of R –, 4 I&N Dec. 345 annulment and re-marriage); In re er, 573 F.3d 38 (1st Cir. 2009)(post- (BIA 1951)(deportation terminated, entry annulment related back to pre- Plasencia-Chirino, visa petition bene- where under District of Columbia law ficiary, 2006 WL 2024175 (BIA clude adjustment). See also Witter war bride’s annulment for marital v. INS, 113 F.3d 549, 552-53 (5th 2006)(unpub.; a post-petition divorce incapacity declared marriage void may support a new visa petition, but Cir. 1997)(applying “relation back” from date of decree, not ab initio). principles, the vacatur of an annul- it is not germane to the approvability Cf. Karayannis v. Brownell, 248 F.2d of a pre-divorce petition). This may ment did not cure the alien’s visa 80 (D.C. Cir. 1957)(staying deporta- (Continued on page 9) 8 October 2012 Immigration Litigation Bulletin

the foreign court, but has recognized Marriages & Divorces Under INA Mexican divorces where the plaintiff (Continued from page 8) at least visited that country during mean that an alien must “re-marry” Dec. 70 (BIA 1974), and overruling the dissolution proceedings. See, more than once. See, e.g., Matter of Matter of Kurtin, 12 I&N Dec. 284 e.g., Matter of B–, supra; Matter of P –, E –, supra, 2 I&N Dec. at 337 (after (BIA 1967). See also Matter of Alli- supra. See also Matter of Kwan, 11 divorce is final and absolute, the son, 12 I&N Dec. 835 (BIA 1968); I&N Dec. 205 (BIA 1965) (full faith alien must re-marry the one with Matter of Sena, 16 I&N Dec. 688 and credit; accepting as immigration whom he or she shared the marriage (BIA 1979). Because marriage is sufficient a collateral Michigan de- ceremony). Under the INA, marital assessed under the law of the place cree declaring marriage in China in- choreography matters and the alien of celebration, the immigration suffi- valid but second marriage in Vene- must get his or her marriage, di- ciency of an alien’s divorce may de- zuela valid). vorce, and immigration application in pend upon the particularities of the the right order. law in the place he If there has been no or she chooses to re-marriage, the va- While divorce may not cure marry. Compare, If there has been lidity of an alien’s marriage for immigration purposes, e.g., Matter of Gam- divorce often will be marriage occasionally will cure di- ero, 14 I&N Dec. no re-marriage, assessed under the vorce. That is, a defective (i.e., void- 674 (BIA 1974) the validity of an law of the divorcing able) divorce that has been recog- (where Chihuahuan jurisdiction. For ex- nized by a state or foreign country as proxy decree was alien’s divorce ample, in Matter of sufficient for purposes of re- recognized by Baja often will be Ma, supra, 15 I&N marriage, generally will be accepted California as suffi- Dec. at 71, the Board as sufficient for immigration purpos- cient to permit sub- assessed under concluded that an in es. See, e.g., Matter of Espinoza, 16 sequent marriage, absentia Korean di- I&N Dec. 199 (BIA 1977) (absent such marriage held the law of the vorce did not restore judicial action, a voidable divorce is valid for visa); and divorcing jurisdiction. the alien to unmar- valid). Compare Matter of Agustin, Matter of B –, 5 I&N ried status. 17 I&N Dec. 14 (BIA 1979)(a voida- Dec. 659 (BIA 1954) ble marriage generally will be regard- (where Mexican In this case . . . ed as valid until annulled or other- proxy decree was recognized by Cali- there is no subsequent marriage. wise terminated). Beyond Dr. John- fornia as sufficient to permit second Consequently we must decide son’s dictum of hope triumphing marriage, such marriage held valid whether or not the divorce in over experience, re-marriage can be for visa); Matter of B–, 1 I&N Dec. question should be recognized on the proof of alien divorce. 677 (BIA 1943)(German decree ob- the basis of comity without any tained by alien having domicile there, one state’s law as a reference (6) The test for good alien divorce recognized as valid for second mar- point . . . [T]he law of the state often is re-marriage. riage and sufficient for suspension granting the divorce must be com- application), with Matter of Daga- plied with, regardless of any addi- In many immigration cases, the mac, supra (because law of domicile tional requirements we may im- immigration validity of the alien’s did not recognize validity of Mexican pose; for if the divorce is invalid divorce is determined by assessing “mail order” divorce, the alien’s re- there, it is invalid everywhere. the validity of his or her re-marriage. marriage in the Philippines was inva- The Board has explained: lid for immigration purposes). As- Alien divorce is governed by the suming good faith, it appears that same burden of proof rules that apply Where one of the parties to a aliens are free to “alter-shop” and to alien marriage. That is, except marriage has a prior divorce, we find the most accommodating forum when the divorce is pertinent to a look to the law of the state where to cure a voidable divorce by re- charge of removability, the alien must the subsequent marriage was marriage. establish the fact and immigration celebrated to determine whether validity of his or her divorce. See, or not that state would recognize Our states typically have sub- e.g., Matter of Karim, 14 I&N Dec. the validity of the divorce. stantial jurisprudence regarding the 417 (BIA 1973)(absent evidence of sufficiency of foreign divorces for compliance with required procedures Matter of Hosseinian, supra, 19 I&N purposes of re-marriage. California, for “mutual consent” divorce under Dec. at 455 (visa petition not sup- for example, generally has refused to Pakistani law, termination of first ported where California law, the recognize in absentia or “mail order” marriage and thus validity of Wash- place of the subsequent marriage, Mexican divorces where neither party ington re-marriage for visa petition did not recognize proxy Hungarian to the divorce proceedings was physi- was not established). Where the al- divorce), citing Matter of Ma, 15 I&N cally present within the jurisdiction of (Continued on page 10) 9 October 2012 Immigration Litigation Bulletin

343, 354 (1948)), and to the fact Marriages & Divorces Under INA that when our federal courts were (Continued from page 9) given authority over “all Cases, in ien has re-married, he or she may be the South, divorce was rare and Law and Equity” (Art. III, sec. 2), mari- assisted by the law in many states available by legislative act (i.e., a tal cases were neither. That is, in that, where two marriages are shown private bill passed by the state legis- 1789 English courts of chancery for the same person, the second is lature). Friedman, supra, at 651-53, lacked authority to issue divorce and presumed valid. As the Board ex- citing inter alia, Blake, The Road To alimony decrees (such matters being plained in Matter of F –, supra, 5 Reno: A History Of Divorce In The reserved to the ecclesiastical courts). I&N Dec. at 165, United States (Macmillan 1962). In See Matrimonial Causes Act of 1857, Maynard v. Hill, 125 U.S. 190, 206- 20 & 21 Vict., c. 85 (reforming and The presumption of the validity of 10 (1888), the Court explored the moving English divorce from ecclesi- the second marriage is stronger origin and prevalence of legislative astical to civil courts). See also than and overcomes the pre- divorce, rejecting the Ankenbrandt v. Rich- sumption of the continuance of claim of a wife who ards, 504 U.S. 689, the first marriage. A party who had been divorced The federal courts’ 693-95 (1992) attacks the validity of the second without cause or reticience regarding (addressing the marriage has the burden of proof notice by special “domestic relations to show affirmatively that the first legislative act of the divorce has been exception” to federal marriage has not been terminat- Washington Territory traced to the Consti- jurisdiction). Cf. Mar- ed. (“the loose morals shall v. Marshall, and shameless con- tution’s “reservation” 547 U.S. 293, 305- But the weight of immigration duct of the husband to the States of the 09 (2006)(discussing jurisprudence gives the presumption can have no bearing “domestic relations” limited utility. upon . . . the power “regulation and con- and “probate” excep- in the assembly to tions to federal juris- The presumption of marriage . . . pass the act”). How- trol of marital and diction, finding bank- gives way to the burden of proof ever, pressed by ris- family relationships.” ruptcy court had au- placed upon a[n] [alien] who ing demand, the thority over widow seeks an immigration visa prefer- states gradually re- Anna Nicole Smith’s ence. placed legislative divorce with judi- claim of tortious interference with her cial divorce (the statutory form disap- inheritance expectation). Kakko v. INS, 594 F. Supp. 623, 628 pearing last from Delaware in 1897). (S.D.N.Y. 1984). See, e.g., Matter of Id. See also Granville-Smith v. Gran- Federal courts will consider con- Martinez-Solis, 14 I&N Dec. 93 (BIA ville-Smith, 349 U.S. 1, 6-7 (1955) stitutional challenges to local marital 1972)(presumption of second mar- (sustaining Virgin Island divorce deni- law. In Boddie v. Connecticut, supra, riage validity was precluded where al, observing that Congress later for- the Court, emphasizing the State’s citizen spouse was paid to marry bade territories from passing “local” monopoly, held that due process pro- alien one week after meeting and or “special” divorce laws). hibits a state from denying, solely on offered no evidence that first mar- the basis of inability to pay court riage was dissolved by death, di- Federal courts consider mar- fees, access to judicial divorce. vorce, or annulment); Matter of Bran- riage and divorce to be matters that tigan, 11 I&N Dec. 493 (BIA 1966) should be determined by local law. We know of no instance where (state law presumption of validity of See, e.g., Sosna v. Iowa, 419 U.S. two consenting adults may di- second marriage insufficient to show 393, 404 (1975); Williams v. North vorce and mutually liberate them- termination of first); Matter of S–, 7 Carolina, supra. In dicta, the Su- selves from the constraints of I&N Dec. 469 (BIA 1957) preme Court “disclaim[ed] altogether legal obligations that go with mar- (presumption of second marriage any jurisdiction in the [federal] riage, and more fundamentally validity rebutted by evidence that courts . . . upon the subject of di- the prohibition against remar- “former” spouse was living and nei- vorce.” Barber v. Barber, 62 U.S. (21 riage, without invoking the State’s ther divorce nor annulment ob- How.) 582, 584 (1858) judicial machinery. tained). In contrast to marriage, no (nevertheless finding federal jurisdic- immigration case has been found tion to enforce a state alimony de- 401 U.S. at 376. However, the Court suggesting a corresponding pre- cree). The federal courts’ reticience found no denial of due process in a sumption of validity for alien divorce. regarding divorce has been traced to state’s requirement of one year’s the Constitution’s “reservation” to residence as a prerequisite to di- Federal Courts and Divorce the States of the “regulation and vorce. Sosna v. Iowa, supra. control of marital and family relation- In our early years, particularly in ships” (Sherrer v. Sherrer, 334 U.S. (Continued on page 11) 10 October 2012 Immigration Litigation Bulletin

scope of this note. Suffice it to ob- Marriages & Divorces Under INA serve that even our most widely rec- (Continued from page 10) ognized theological authorities ap- The courts have stated that a obligation to defer to the agencies’ pear divided on the subject. Com- legitimate marriage “need not con- judgments regarding alien divorce, pare, e.g., Deuteronomy 24:1 (“When form to American customs” (e.g., but analogies to alien conviction may a man hath taken a wife . . . [and] Gee Chee On v. Brownell, 253 F.2d help. That is, while criminal law ordi- she finds no favor in his eyes . . . let 814, 817 (5th Cir. 1958)), and have narily lies outside the province of the him write her bill of divorcement”), suggested a similar latitude regard- immigration adjudicators, it is the with Matthew 19:8-9 (“Moses per- ing divorce. See, e.g., In re Schlau, Board’s role and responsibility to mitted you to divorce . . . But anyone 136 F.3d 480 (2d Cir. 1943) determine the immigration signifi- who divorces, except for . . . unfaith- (naturalization, erroneous reliance cance of an alien’s convictions. Like- fulness, and marries another . . . on rabbinical divorce did not pre- wise, alien divorce is a matter on commits adultery”). clude good moral character). See which judicial defer- also DaBaase v. INS, supra ence is due. On a much (customary or tribal divorce). And, as If immigration is the ulti- more prosaic level, discussed above, if a divorce decree The law of alien mate political question, divorce was de- is valid where rendered, the federal divorce is an un- scribed by Cary Grant wieldy amalgam of marriage – its formation, courts ordinarily will treat the decree meaning, and dissolution – as “a game for law- as valid everywhere. state law, conflict of yers.” A necessary law principles, and arguably presents our game, it appears, State decrees are recognized in the INA. One judge central social construct. given the central role observed, accordance with the Constitution’s As such, divorce inevitably of the marital rela- Full Faith and Credit Clause (with tionship in our immi- questions regarding recognition of At the base of the is freighted with moral gration law. And in foreign decrees belonging to the At- petitioner’s difficul- and religious considera- this, our Republic’s torney General of the state in ques- ties lies the subject most political of sea- of divorce, fraught tions far beyond the scope tion). E.g., Rodriguez v. INS, 204 of this note. sons, immigration F.3d 25, 28 (1st Cir. 2000). Cf. as it is with great lawyers can join with Loughran v. Loughran, 292 U.S. confusion and un- candidates and pun- 216, 223 (estate dispute, differing certainty in these United States dits alike to reaffirm the revered max- local marital laws). Assuming the and almost totally lacking in una- im, “Coniuges sunt renovario auxil- domicile of at least one spouse, de- nimity among them. Through it ium.” crees issued by foreign countries are all is woven the ecclesiastical recogized as a matter of comity. strands of a sacrament as well as By Thomas Hussey, OIL See, e.g., Hilton v. Guyot, 159 U.S. the temporal strands of a con- 113, 163-64 (1895). tract. The views herein are purely personal, But resolution of an alien’s mar- Petition of Smith, 71 F. Supp. 968, and the author does not speak for ital status under state law does not 973 (D. N.J. 1947)(granting naturali- the Department of Justice or the Of- necessarily establish that status for zation, finding erroneous reliance on fice of Immigration Litigation. immigration purposes. See, e.g., Mexican mail order divorce did not Skelly v. INS, 630 F.2d 1375, 1382 preclude good moral character). It (10th Cir. 1980), citing Lutwak v. surely is only a matter of time before United States, 344 U.S. 604, 611 some enterprising court or counsel (1953), and DeFigueroa v. United finds fault – a la Padilla – in an immi- States, 501 F.2d 191, 195 (7th Cir. gration determination on the basis 1974). that the alien was given bad counsel on his or her divorce. Our federal courts routinely We encourage consider divorce in immigration mat- Conclusion contributions to the ters. Much of the jurisprudence in- Immigration Litigation Bulletin volves review of administrative judg- If immigration is the ultimate ments regarding the validity of the political question, marriage – its for- marital dissolution. Divorce validity mation, meaning, and dissolution – Contact: Francesco Isgro questions typically are questions of arguably presents our central social law over which the courts would ex- construct. As such, divorce inevita- ercise de novo review. There is bly is freighted with moral and reli- scant caselaw regarding the courts’ gious considerations far beyond the 11 October 2012 Immigration Litigation Bulletin FURTHER REVIEW PENDING: Update on Cases & Issues

Aggravated Felony — Drug Trafficking Asylum – Particular Social Group on October 24, 2012. The govern- ment’s brief is due by December 3, On October 6, 2012, the Su- On September 27, the en banc 2012. preme Court heard argument in Seventh Circuit heard argument on Moncrieffe v. Holder on the question rehearing in Cece v. Holder, 668 F.3d Contact: Bryan Beier, OIL of whether, to establish a drug traf- 510 (2012), which held an alien's pro- 202-514-4115 ficking aggravated felony, the gov- posed particular social group of young ernment must prove that marijuana Albanian women in danger of being Convictions – Modified Categorical distribution involved remuneration targeted for kidnapping to be traf- Approach and more than a small amount of ficked for was insufficient- marijuana, as described in 21 U.S.C. ly defined by the shared common In Aguilar-Turcios v. Holder, 691 § 841(b)(4). In a decision at 662 characteristic of facing danger. F.3d 1025 (9th Cir. 2012), and F.3d 387, the Fifth Circuit joined the Sanchez-Avalos v. Holder, 693 F.3d First and Sixth Circuits in holding Contact: Andy MacLachlan, OIL 1011 (9th Cir. 2012), the Ninth Cir- that the government need not. The 202-514-9718 cuit applied United States v. Aguila- Second and Third Circuits require Montes De Oca, 655 F.3d 915 (9th that the government make these Asylum — Corroboration Cir. 2011) (en banc), and held that showings, because a defendant the aliens’ convictions did not render could make them in a federal crimi- On December 11, 2012, an en them deportable. The government nal trial to avoid a felony sentence banc panel of the Ninth Circuit will has requested extensions of time to for marijuana distribution. hear argument on rehearing in Oshodi seek rehearing through December v. Holder. The court granted a sua 14, 2012, so that any rehearing peti- Contact: Manning Evans, OIL sponte call for en banc rehearing, and tions in those cases may be coordi- 202-616-2186 withdrew its prior published opinion, nated with the government’s brief to 671 F.3d 1002, which declined to the Supreme Court in Descamps v. Asylum — Particular Social Group follow, as dicta, the asylum corrobora- United States. tion rules in Ren v. Holder, 648 F.3d During the March 20, 2012, en 1079 (9th Cir. 2011). The parties Contact: Bryan Beier, OIL banc argument in Henriquez-Rivas v. have filed en banc supplemental 202-514-4115 Holder, the court requested that the briefs. government determine whether the Consular Nonreviewability BIA would make a precedent deci- Contact: John W. Blakeley, OIL sion on remand in Valdiviezo- 202-514-1679 On July 25, 2012, the govern- Galdamez v. Attorney General, 663 ment filed a petition for rehearing en F.3d 582 (3d Cir. 2011). The BIA Convictions – Modified Categorical banc in Rivas v. Napolitano, 677 F.3d declined to comment on its pending Approach 849 (9th Cir. 2012), which held that case. The now-withdrawn un- the district court had jurisdiction to published Henriquez-Rivas decision, On January 7, 2013, the Su- review a consular officer’s failure to 2011 WL 3915529, upheld the preme Court will hear oral argument in act on the alien’s request for recon- agency’s ruling that El Salvadorans Descamps v. United States, a criminal sideration of the visa denial. The who testify against gang members sentencing case in which the question petition argues that the longstanding do not constitute a particular social presented is whether the Ninth Circuit doctrine of consular nonreviewability group for asylum. Concurring judges was correct in United States v. Aguila- recognizes that the power to exclude on the panel, and the subsequent Montes De Oca, 655 F.3d 915 (9th aliens is inherently political in nature petition for rehearing, suggested en Cir. 2011) (en banc), that a state con- and that consular decisions and ac- banc rehearing to consider whether viction for burglary, where the statute tions are generally not, therefore, the court’s social group precedents, is missing an element of the generic appropriately subject to judicial re- especially regarding “visibility” and crime, may be subject to the modified view. The court ordered the appoint- “particularity,” are consistent with categorical approach. ment of pro bono counsel to respond each other and with BIA precedent. to the government petition by Decem- Resolution of the case is ex- ber 27, 2012. Contact: Manning Evans, OIL pected to implicate the reasoning of 202-616-2186 Aguila-Montes and the “missing ele- Contact: Craig A. Defoe ment” rule that it overruled. The peti- 202-532-4114 tioner’s brief was filed Updated by Andy MacLachlan, OIL 202-514-9718 12 October 2012 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

not to the spouse of that person. Two 2009), because he was statutorily inel- FIRST CIRCUIT courts of appeals have unreservedly igible to adjust status, and there was embraced this plain-language construc- “no basis in the record to predict, be- First Circuit Holds that Spouse of tion,” said the court. Moreover, added yond mere speculation,” that events an Individual Forced to Undergo an the court, “even if we assume -- favora- rendering him eligible to adjust would Abortion under China’s Coercive Pop- bly to the petitioner -- that the statutory occur in the near future. ulation Control Policy Is Not Automat- text, read charitably, might admit of ically Entitled to Asylum some conceivable ambiguity, the Attor- Contact: Lindsay Murphy, OIL ney General's interpretation would de- 202- 616-4018 In Dong v. Holder, 696 F.3d 121 mand the same result.” The court (1st Cir. October 3, 2012) (Thompson, agreed with Matter of J-S- that, while Persons Returning from the Unit- Selya, Lipez), the First Circuit, on an the statute does not ed States with Citizen issue of first impression, joined several exclude spouses from its “Petitioner's evi- Children, and Per- of the other circuits in holding that the purview, the spouse ceived as Wealthy, Are refugee definition under INA 101(a) must show special cir- dence of potential Not a Particular Social (42)(B), for victims of coercive popula- cumstances — some- persecution based on Group tion control policies does not extend thing more than his rela- automatically to a spouse of a person tionship to the victim of this religious choice In Rojas-Perez v. forced to undergo an abortion. a forced abortion — In is neither specific to Holder, __F.3d__, order to avail himself of his own circumstanc- 2012 WL 5383261 The petitioner, a Chinese nation- this caveat. The court (1st Cir. November 5, al, entered the United States illegally concluded that petition- es nor localized to 2012) (Torruella, in March 2006 and affirmatively ap- er failed to make such a the region in China Thompson, Howard plied for asylum on October 10, 2006. showing. (concurring)), the First His application was subsequently re- from which he hails.” Circuit concluded that ferred to an immigration court. Peti- Lastly, the court substantial evidence tioner’s claim was heard by an IJ on rejected petitioner claim supported the agency’s December 2, 2009. Petitioner stated of religious persecution. “Petitioner's determination that aliens who are that following the birth of his first child, evidence of potential persecution wealthy or would be perceived as his spouse was fitted with an IUD. based on this religious choice is neither wealthy upon their return to Mexico do Flouting government policy, the spouse specific to his own circumstances nor not constitute a particular social group had the IUD removed at a private clinic localized to the region in China from for purposes of withholding of removal. and thereafter conceived another which he hails. Such a specific link is child. In 2005, when the government normally a necessary element of a The petitioners entered without became aware of the pregnancy she claim based on a fear of future perse- inspection in 2001 and 2003. After was forced to have an abortion. This cution,” said the court. Also, noted the being placed in removal proceedings, prompted petitioner to leave China. court, petitioner did not establish a petitioners applied for withholding of Petitioner also testified that following pattern and practice of persecution of removal based on their fear that, if his entry into the United State, he be- Evangelical Christians. they returned to Mexico, their son came involved in the Evangelical would be kidnapped and held for ran- Church in Boston and was baptized Contact: Shahrzad Baghai, OIL som. The BIA agreed with the IJ that the in April 2009. 202- 305-8273 petitioners’ stated fear that they would be targeted for their perceived wealth The IJ found petitioner generally First Circuit Holds Denial of Continu- was not related their membership in a credible but, following Matter of J-S- ance Was Not an Abuse of Discretion particular social group. 24 I&N Dec. 520 (A.G. 2008), denied Where Eligibility to Adjust Status Was his asylum claim based on his Based on Speculative Events The First Circuit held that sub- spouse’s forced abortion. The IJ also stantial evidence supported the agen- rejected petitioner’s claim of fear reli- In Sheikh v. Holder, __F.3d__, cy’s decision in light of the “well- gious persecution. The BIA affirmed. 2012 WL 4801335 (1st Cir. October settled logic” that claims based on The First Circuit upheld the BIA’s inter- 10, 2012) (Howard, Ripple (7th Cir. by perceived wealth or financial status pretation in Matter of J-S-, based on designation), Lipez), the First Circuit are not related to a statutorily protect- the plain language of the statute. held that the agency properly denied ed ground. The court also rejected “[T]he statutory language appears un- petitioner’s motion for a continuance petitioners’ challenge to the social ambiguously to refer only to the person under the standards set forth in Matter visibility requirement because it had who actually undergoes the procedure, of Hashmi, 24 I&N Dec. 785, 790 (BIA (Continued on page 14)

13 October 2012 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 13) “hurts the alien or criminal defend- “Guatemalan nationals repatriated been previously upheld by the court ant . . . other times as in this case, the from the United States.” The court but suggested that the issue “at the alien or defendant comes out ahead.” noted that the alien’s theory appears very least merits additional examina- to be that Guatemalan gangs will as- tion by and clarification from the BIA.” The court remanded the case to sume he amassed significant wealth In his concurrence, Judge Howard the BIA because it had not ruled during his stay in the United States argued that there was no need to en- whether petitioner would be remova- and that he will be a target for extor- tertain the criticisms of the social visi- ble on the alternative grounds of child tion and other criminal activity as a bility requirement as abuse or on the result of his perceived wealth. The they did not impact the grounds that he was court thus interpreted the alien’s al- court’s decision and Because the convicted of a “crime of leged social group as Guatemalans cautioned that “the criminal information violence.” who are perceived as wealthy, and dicta in the majority referred to Sicaju-Diaz v. Holder, 663 opinion may encourage identified the basis of Contact: Sabatino F. F.3d 1 (1st Cir. 2011), in which it held what I believe will be the alien’s conviction as Leo, OIL that such a group does not constitute misplaced challenges “Possession with Intent 202-514-8599 a social group within the meaning of to the BIA's social visi- to Sell a Controlled Sub- the Immigration and Nationality Act. bility requirement.” stance (Marijuana),” An Alien Is Subject to Removal for Aggra- Contact: Shahrzad Baghai, OIL Contact: Sabatino F. his offense constituted vated Felony Convic- 202-305-8273 Leo, OIL “illicit trafficking.” tion Where Criminal 202-514-8599 Information Estab- SECOND CIRCUIT lished Illicit Trafficking Risk of Injury to Child in Violation of Controlled Substance Second Circuit Holds That It of Connecticut General Statute § 53- Lacks Article III Jurisdiction to Re- 21(a)(1) Is Not Sexual Abuse of a In James v. Holder, __F.3d__, view a Vacated Board Decision Minor under the Modified Categori- 2012 WL 5077157 (1st Cir. October Where the Reasoning of a Subse- cal Approach 19, 2012) (Boudin, Selya, Dyk), the quent Decision Substantially Differed First Circuit concluded that the alien’s from the Vacated Decision In Campbell v. Holder, __F.3d__, conviction under Connecticut General 2012 WL 5077154 (1st Cir. October Statute § 21a-277(b) rendered him In Fuller v. Board of Immigration 19, 2012) (Boudin, Selya, Dyk (by removable pursuant to 8 U.S.C. Appeals, __F.3d__, 2012 WL desig.)), the First Circuit ruled that § 1227(a)(2)(A)(iii) as an aggravated 4875696 (2d Cir. October 16, 2012), petitioner, who pled nolo contendere felony. The court determined that be- (Pooler, Calabresi, Jacobs (concurring)) to one count of risk of injury to a mi- cause the criminal information identi- the Second Circuit held that it lacked nor under section 53-21(a)(1) of the fied the basis of the alien’s conviction Article III jurisdiction to review a BIA Connecticut General Statute, cannot as “Possession with Intent to Sell a decision that had been vacated upon be held to have pled to an offense Controlled Substance (Marijuana),” his reconsideration by the BIA while the that falls within the “sexual abuse of a offense constituted “illicit trafficking” petition for judicial review was pend- minor,” an aggravated felony under within the meaning of 8 U.S.C. § 1101 ing, because the reasoning of the deci- INA § 101(a)(43)(A), and a ground for (a)(43)(B). sion pending judicial review did not removal. substantially correspond to the BIA’s Contact: Anthony Payne, OIL subsequently issued final decision. The court determined that the 202-616-3264 The court declined to rule on the statu- Connecticut statute was divisible, that tory jurisdictional issue as to whether the criminal information in petitioner’s First Circuit Rejects Particular the order on review remained a final case identified no specific conduct, Social Group of Guatemalan Nation- order after it had been explicitly vacat- and that the trial judge, during peti- als Repatriated From the United ed. Judge Jacobs, in a concurring tioner’s nolo contendere plea colloquy States opinion, would have dismissed the twice assured the alien “that he was appeal because the court’s statutory admitting to no conduct whatsoever In Escobar v. Holder, __F.3d__, jurisdiction to review the appealed and the [trial] judge himself made no 2012 WL 5193223) (1st Cir. October decision lapsed once it was explicitly findings as to the underlying con- 22, 2012) (Boudin, Thompson, Torru- vacated and replaced by the BIA. duct.” The court noted that the appli- ella), First Circuit rejected petitioner’s cation of the Taylor-Sheperd method- claim that he would be persecuted in Contact: Matt Crapo, OIL ology, which focuses on the statute Guatemala based on his membership 202-353-7161 rather than the conduct, sometimes in the particular social group of (Continued on page 15) 14 October 2012 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 14) tioner failed to show how any errors the court concluded that BIA, apply- in translation prejudiced his claim. ing Matter of Ortega-Cabrera, 23 I&N FOURTH CIRCUIT Dec. 793 (BIA 2005), reasonably Contact: Lindsay Corliss, OIL determined that the relevant period Fourth Circuit Holds Implausibil- 202-532-4214 is the ten years preceding the appli- ity and Insufficient Corroboration cation’s final adjudication. Support Adverse Credibility Deter- FIFTH CIRCUIT mination Contact: Lori B. Warlick, OIL Fifth Circuit Holds that Convic- 202-532-4315 In Singh v. Holder, __F.3d__, tion under Texas Assault Statute 2012 WL 5383287 (4th Cir. Novem- Was a Crime Involving Moral Turpi- Seventh Circuit Rules that Immi- ber 5, 2012) (Duncan, Agee, Diaz), tude gration Judge Overlooked Material the Fourth Circuit held the agency Evidence in Denying Waiver supplied sufficient reasons for its In Esparza- adverse credibility finding, which was Rodriguez v. Holder, In Lam v. Holder, based on the alien’s inherently im- __F.3d__, 2012 WL __F.3d__, 2012 WL plausible testimony and failure to 4937384 (King, Hig- An “intentional” 4875151) (7th Cir. adequately corroborate his claims. ginson, Foote) (5th October 16, 2012) Cir. October 18, assault that is (Manion, Williams, The petitioner arrived in the 2012), the Fifth Cir- intended to and Castillo (by designa- United States on a student visa in cuit ruled under the does cause more tion)), the Seventh 2006 and, after being placed in re- modified categorical Circuit ruled that the moval proceedings in 2007, applied approach that a con- than de minimis Immigration Judge, in for withholding of removal and pro- viction under Texas physical harm is a denying waiver under tection under the CAT. The IJ found Penal Code § 22.01 INA § 212(h)(1)(B), petitioner not credible regarding his (a)(1) for intentional CIMT. overlooked material political beliefs or that his claim that assault that causes evidence relating to he was arrested, detained, and bodily injury is a petitioner’s wife’s de- abused by the police. The BIA af- crime involving moral pression when con- firmed. turpitude (CIMT). In so holding, the cluding that she would not suffer court more broadly clarified that an extreme hardship upon petitioner’s The Fourth Circuit upheld the “intentional” assault that is intended removal. The court also ruled that adverse credibility finding. The court to and does cause more than de the Immigration Judge improperly observed that the IJ was entitled to minimis physical harm is a CIMT. relied on a report from the Secret find petitioner’s claim not credible Service discussing a crime commit- where he testified that the police only Contact: Ann Welhaf, OIL ted in Chicago when investigating a arrested petitioner after they could 202-532-4090 crime in another location because not find his father later claimed that the report lacked probative value his father was able to secure petition- SEVENTH CIRCUIT regarding petitioner’s rehabilitation. er’s release from police custody with- out incident. The court also noted Seventh Circuit Defers to BIA Contact: Timothy Hayes, OIL that petitioner was nonresponsive at Decision that the Good Moral Char- 202-532-4335 various points in his testimony and acter Period Is Calculated Back- failed to articulate “any political ward from Date of Adjudication of Alien’s Prior Removal from the views whatsoever” in support of his Cancellation of Removal Applica- United States Rendered Him Ineli- political asylum claim. tion gible for Adjustment of Status and Cancellation of Removal Turning to the corroboration In Duron-Ortiz v. Holder, finding, the court held that the IJ rea- __F.3d__, 2012 WL 4856495 (7th In Nunez-Moron v. Holder, sonably expected corroborative evi- Cir. October 15, 2012) (Bauer, Man- __F.3d__, 2012 WL 5315860 (7th dence of the events in India and was ion, Tinder), the Seventh Circuit Cir. October 30, 2012) (Easterbrook, justifiably skeptical of the proffered ruled that INA § 240A(b)(1) is ambig- Manion, Tinder), the Seventh Circuit affidavits as one was altered by hand uous as to when the ten-year period held that an alien who had previous- without explanation. Finally, the throughout which an applicant for ly been subjected to expedited re- court rejected petitioner’s claim that cancellation of removal must estab- moval was ineligible for adjustment an incompetent translator violated lish good moral character termi- his right to due process because peti- nates. Applying Chevron deference, (Continued on page 16) 15 October 2012 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 15) ner, Wood), the Seventh Circuit Petitioner entered the United of status because he was inadmissi- ruled that the BIA did not abuse its States in 1992 on a nonimmigrant ble under 8 U.S.C. § 1182(a)(9)(C)(i)(II). discretion in denying petitioner’s exchange visa and applied for asy- multiple motions for reconsideration lum, withholding of removal, and The petitioner illegally entered or reopening. The court ruled that protection under the CAT when his the United States in 1992. After at- the BIA did not abuse its discretion visa expired in 2005. The BIA af- tempting to re-enter the United in finding that one of the motions to firmed the IJ’s decision denying peti- States in 1997 using another per- reopen was untimely, since the fil- tioner’s application for failure to son’s residency card, petitioner was ing of a motion to reconsider did not demonstrate an objectively reasona- apprehended by INS and subse- toll the time for a ble fear of future per- quently removed pursuant to an ex- motion to reopen; secution. pedited removal order. Petitioner re- that the BIA did not Substantial evidence entered the United States in 1999 abuse its discretion supported the BIA’s The Eighth Cir- and filed an application for asylum, in denying reopening decision where peti- cuit held that sub- withholding of removal, and protec- where the alien’s stantial evidence sup- tion under the CAT. When placed in fear of generalized tioner’s termination ported the BIA’s deci- removal proceedings, petitioner with- violence and crime from his government sion where petition- drew that application and requested did not establish pri- position and any ques- er’s termination from cancellation of removal and, in the ma facie eligibility for tioning of petitioner’s his government posi- alternative, voluntary departure. The asylum; and that the tion and any question- BIA affirmed the IJ’s denial of peti- BIA did not violate family members did ing of petitioner’s tioner’s applications for relief and the alien’s due pro- not rise to the level of family members did protection from removal. cess or equal protec- persecution. not rise to the level of tion rights because persecution. The The Seventh Circuit concluded the alien lacked a court further conclud- that petitioner was precluded from protected liberty interest in the dis- ed that petitioner failed to establish applying for adjustment of status cretionary relief of reopening, and an objectively reasonable fear of fu- because he was inadmissible under the agency’s decision had a rational ture persecution because (1) the INA § 212(a)(9)(C)(i)(II). The court, basis and there was no evidence of party petitioner supported was now deferring to the BIA’s holding in Mat- improper motive. in power, and (2) petitioner was a ter of Torres–Garcia, 23 I&N Dec. professor and, therefore, not similar- 866 (BIA 2006), rejected petitioner’s Contact: Jessica Malloy, OIL ly situated to the political opponents argument that he could avoid the ten 202-532-4218 and journalists that were persecuted -year bar for seeking admission by in Kenya. Finally, the court rejected petitioning the Attorney General, via petitioner’s due process claim based nunc pro tunc relief, to retroactively EIGHTH CIRCUIT on the IJ’s decision to reopen pro- consent to his application for adjust- ceedings because there is no consti- ment of status. Finally, the court Eight Circuit Holds that Alien’s tutionally protected liberty or proper- held that the alien’s expedited re- Publications Criticizing the Kenyan ty interest in receiving asylum. moval from the United States, pursu- Government Failed to Demon- ant to INA § 235(b)(1), severed his strate Eligibility for Asylum and Contact: Tracie Jones, OIL physical presence in the United Alien Does Not Have a Protected 202-305-2145 States and rendered him ineligible Right to Asylum for cancellation of removal. Eighth Circuit Upholds Denial of In Wanyama v. Holder, Motion to Reopen on the Basis that Contact: Alex Goring, OIL __F.3d__, 2012 WL 5357933 (8th Guatemalans Who Resist Joining a 202-353-3375 Cir. November 1, 2012) (Riley, Ar- Gang is not a Particular Social nold, Gruender), the Eighth Circuit Group Seventh Circuit Holds Agency concluded that the petitioner failed Did Not Abuse Its Discretion in to demonstrate a particularized In Lopez-Mendez v. Holder, Denying petitioner’s Multiple Mo- threat of persecution based on the __F.3d__, 2012 WL 5289934 (8th tions for Reopening or Reconsideration publication of articles criticizing the Cir. October 29, 2012) (Riley, Smith, Kenyan government, his political Colloton), the Eighth Circuit deter- In Cruz-Mayaho v. Holder, affiliation, or the mistreatment his mined that the BIA did not abuse its __F.3d__, 2012 WL 4901108) (7th mother and brother suffered in Kenya. discretion when it concluded that the Cir. October 17, 2012) (Bauer, Pos- (Continued on page 17)

16 October 2012 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions the BIA’s reversal of that determina- tion, petitioner also sought asylum, withholding and CAT protection. On (Continued from page 16) planning policy was too remote. The remand the IJ denied asylum and evidence petitioner’s offered to reo- court further concluded that petitioner withholding but granted cancellation pen his asylum proceedings — did not establish a due process viola- and Cat protection. The IJ deter- threats motivated petitioner’s refusal tion because of any deficiencies in mined, among other facts, that un- to join a gang in Guatemala — did not translation where he failed to demon- like the situation described in Matter establish a nexus between the strate the requisite prejudice. of J-E-, 23 I&N Dec. 291 (BIA 2002), threats and a protected ground, and petitioner showed that conditions in therefore would not likely change the Finally, the court also denied Haitian prisons had deteriorated “to result of the case. Further, said the petitioner’s attorney’s the point that incar- court, “persons resistant to gang vio- motion to withdraw ceration in a Haitian lence are too diffuse to be recognized because petitioner “The BIA cannot prison is almost the as a particular social group.” The allegedly admitted disregard the IJ’s equivalent of a death court also rejected the petitioner’s that he fabricated warrant.” The IJ also claim that the BIA abused its discre- elements of his claim. findings and substi- determined that be- tion by not finding that gang mem- The court declined to tute its own view of cause petitioner had bers persecuted the alien based on assume the truth of the facts. Either it no family in Haiti he his membership in an indigenous the attorney’s un- would be facing “a group. sworn allegations must find clear error, long time imprison- where there was no explaining why; or, if ment.” On appeal, Contact: Benjamin Zeitlin, OIL corroborative evi- critical facts are the BIA reversed the 202-305-2807 dence and noted that, IJ and denied cancel- under 8 U.S.C. § missing, it may lation and CAT protec- Eighth Circuit Holds that Sub- 1252(a)(1), Congress remand to the IJ.” tion. stantial Evidence Supports Finding has barred a remand that Alien Committed a Serious to the Board for further fact-finding or The Ninth Circuit, in reversing Nonpolitical Crime consideration of this new information. the BIA, explained that “throughout its CAT ruling the BIA failed to grap- In Zheng v. Holder, __F.3d__, Contact: Jeffrey Bernstein, OIL ple with the evidentiary record in this 2012 WL 5350157 (8th Cir. October 202-353-9930 case and to specifically address any 31, 2012) (Loken, Gruender, Ben- clear errors that IJ made in his factu- ton), the Eighth Circuit held that sub- NINTH CIRCUIT al findings based on that evidence -- stantial evidence supported the BIA’s evidence showing that both Haiti’s finding that an alien’s premeditated Ninth Circuit Remands Case for current prison conditions and attack on a Chinese family planning the Agency to Apply the Proper [petitioner’s] personal circumstances official for refusing to return petition- Standard of Review to an Alien’s are different from the record that er’s property was a serious non- Torture Claim prompted the BIA’s ruling in Matter political crime, rendering him ineligi- of J-E-.” In particular, the court fault- ble for asylum and withholding of In Ridore v. Holder, 696 F.3d ed the BIA for its failure to address removal. 907 (9th Cir. October 3, 2012) the IJ’s fact-based determination (Fisher, Rawlinson, Wu (C.D. Cal., by opting instead to invoke statements Petitioner testified that his wife desig.)), the Ninth Circuit held that the from Matter of J-E-. “The BIA cannot was forcibly sterilized and police of- BIA erred when it reversed the Immi- disregard the IJ’s findings and substi- ficers confiscated his furniture after gration Judge’s grant of protection tute its own view of the facts. Either the birth of petitioner’s second child. under CAT because it did not apply it must find clear error, explaining After officials refused to return peti- the clear error standard of review as why; or, if critical facts are missing, it tioner’s property, petitioner waited required under 8 CFR §1003.1(d)(3) may remand to the IJ,” said the for an official on his way home and (i). court. beat him with a stick until he suf- fered “a very serious injury.” The petitioner, a citizen of Haiti The court also reversed the and an LPR since 1973, was placed in denial of cancellation, finding that The court held that the attack removal proceedings in 2003 based although the BIA had given proper constituted a serious nonpolitical on a string of criminal convictions, deference to the IJ’s factual finding, crime where petitioner beat the offi- including an aggravated felony. The it failed to give proper deference to cial because petitioner sought return IJ initially denied cancellation of re- the finding of hardship in Haiti. Ac- of his furniture and that any link be- moval based upon the aggravated cordingly, the court remanded to the tween the attack and petitioner’s felony conviction. However, following (Continued on page 18) “other resistance” to Chinese family 17 October 2012 Immigration Litigation Bulletin

Summaries Of Recent Federal Court Decisions their due process. The court found that they had no legitimate claim of entitlement to have their petitions (Continued from page 17) On this latest appeal, plaintiffs approved and therefore could not BIA for review of petitioner’s CAT challenged the regulations on consti- claim under the proper standard, and claim a due process violation. tutional grounds and also argued that for a reconsideration of his claim of the regulation violated the Religious hardship finding in Haiti as a criminal Contact: Melissa Leibman,OIL-DCS Freedom Restoration Act (RFRA). 202-305-7016 deportee. Plaintiffs based their RFRA claim on

the fact that the lag in the processing Ninth Circuit Holds Conviction of Contact: Kiley L. Kane, OIL of their employers’ petitions may 202-305-0108 Attempted Kidnapping under Cali- cause them to accrue unlawful pres- fornia Penal Code § 207(a) Cate- ence time when their five year visa Ninth Circuit Affirms Decision gorically Constitutes a Crime of expires. The court rejected this con- Violence and Therefore an Aggra- Upholding USCIS Regulation on Re- tention explaining that “the chal- ligious Worker Visas vated Felony lenged regulation does not affect their In Ruiz-Diaz v. In Delgado-Hernandez v. Hold- “Even assuming immi- ability to practice er, __F.3d__, 2012 WL 4784162 United States, 697 grant religious workers their religion. They F.3d 1119 (9th Cir. (9th Cir. On October 9, 2012) are subject to remov- (Hawkins, McKeown, Bybee) (per 2012) (Schroeder, are being treated al after five years Gould, Rakoff), the differently from other curiam), the Ninth Circuit held that because their visas the crime of attempted kidnapping Ninth Circuit rejected employment-based have expired, not a constitutional chal- under section 207(a) of the Califor- visa applicants, the because they are nia Penal Code is a crime of violence lenge to 8 C.F.R. practicing their reli- § 245.2(a)(2)(i)(B), a difference requires under 8 U.S.C. § 1101(a)(43)(F) and gion. Their inability to (U) and 18 U.S.C. § 16, and there- rule which prohibits only a rational basis to file their applications applicants for special fore an aggravated felony rendering survive an Equal Pro- concurrently with the alien removable under 8 U.S.C. immigrant religious their employers' peti- worker visas from fil- tection challenge.” § 1227(a)(2)(A)(iii). The Ninth Circuit tions may well delay analyzed the approach of other ing adjustment of sta- religious workers tus applications until after USCIS courts with respect to comparable from adjusting status before their kidnapping statutes, congressional grants their underlying visa petitions. temporary visas expire, but it does not and state legislative enactments, prevent them from practicing their and U.S. Sentencing Commission The plaintiffs in the case, who religion.” represented a class of non-citizen Guidelines, and concluded that an “ordinary kidnapping” under the Cali- religious workers, together with their The court also rejected plaintiffs’ organizations, had been admitted to fornia statute presents a substantial Equal Protection claim noting that the risk of force, as required in 18 U.S.C. the United States on five-year special regulation does not target any reli- immigrant religious worker visas. § 16(b). Thus, section 207(a) gious groups but rather targets all “defines a crime of violence” render- Unlike the other employment-based members of the fourth-preference immigrant categories, where the em- ing a conviction under the statute a visa category. “Even assuming immi- categorical match to the aggravated ployer can file a visa petition concur- grant religious workers are being rently with an application for adjust- felony ground of removal. treated differently from other employ- ment of status, for this category of ment-based visa applicants, the differ- religious workers, the employees Contact: Holly M. Smith, OIL ence requires only a rational basis to 202-305-1241 must wait for the USCIS to approve survive an Equal Protection chal- their employers' petitions before they lenge,” said the court. Here, the court TENTH CIRCUIT can file the adjustment applications. found that the government’s concerns Plaintiffs challenged this distinction about fraud in the religious worker on a number of grounds. Previously, Tenth Circuit Holds that District visa program satisfied the rational Court Must Determine the Proper the Ninth Circuit had held that the basis standard. regulation was not contrary to the Forum for UNTOC Claims statute and had remanded the case Finally, the court rejected plain- to the district court to consider plain- In Musau v. Carlson, 2012 WL tiffs’ contention that USCIS’s delay in 4903251 (10th Cir. October 17, tiffs’ other contention’s See Ruiz- processing their application, which Diaz v. United States, 618 F.3d 1055 2012) (Kelly, McKay, O’Brien often meant that their five-year visas (dissenting)), the Tenth Circuit, in an (9th Cir. 2010). The district court had expired before their employers’ (Continued on page 21) dismissed the remaining contentions. petition could be acted upon violated

18 October 2012 Immigration Litigation Bulletin This Month’s Topical Parentheticals

ASYLUM  Pavlov v. Holder, __ F. 3d __, in Matter of Briones and Matter of 2012 WL 4477374 (7th Cir. Oct. 1, Torres-Garcia and holding that 8 Dong v. Holder, __ F. 3d __, 2012 2012) (holding that the U.S.C. § 1182(a)(9)(C)(i)(II) precludes WL 4646500 (1st Cir. Oct. 3, 2012) INA’s permanent bar against immigra- petitioner from seeking adjustment (deferring to the AG’s decision in Mat- tion benefits for an alien who know- of status pursuant to 8 U.S.C § 1255 ter of J-S- and joining several other ingly files a frivolous asylum applica- (i) or a retroactive waiver of inadmis- circuits in holding that 8 U.S.C. § tion applies not just to applications sibility pursuant to 8 C.F.R. § 212.2 1101(a)(42)(B), a statute enacted to filed with an IJ, but also to those filed (e); further holding that an expedited pave the way for asylum for victims of with DHS; further, joining Ninth and removal order severs an alien’s con- China’s coercive population control Tenth Circuits in holding that written tinuous physical presence for purpos- policies, does not extend automatical- warning on the asylum application es of cancellation eligibility) ly to a spouse of a person forced to satisfies statutory requirement that an undergo an abortion; further holding applicant must be advised of the con- Garfias-Rodriguez v. Holder, __ F. that petitioner’s evidence of potential sequences of knowingly filing a frivo- 3d __, 2012 WL 5077137 (9th Cir. religious persecution based on his lous application) Oct. 19, 2012) (en banc) (holding claim that his evangelical beliefs that the court must defer to the BIA’s would force him to join an unsanc- Zheng v. Holder, __ F. 3d __, 2012 decision in Matter of Briones, that an tioned Protestant church in China “is WL 5350157 (8th Cir. Oct. 31, 2012) alien inadmissible for reentering after neither specific to his own circum- (affirming that Chinese asylum appli- accruing unlawful presence was ineli- stances nor localized to the region in cant’s after-hours planned assault of gible to adjust status under 8 U.S.C. China from which he hails,” and thus a family-planning official causing seri- § 1255(i); because the court con- does not constitute compelling evi- ous injury, in order to recover property cluded that Briones clarified an un- dence of a well-founded fear of perse- confiscated for earlier violation of certain area of the law, it applied the cution) family-planning laws, is a “serious non- Montgomery Ward retroactivity analy- political crime” barring asylum and sis, and held that the BIA’s decision Neri-Garcia v. Holder, __ F. 3d __, does not constitute “other resistance” applied retroactively; further holding 2012 WL 4513201 (10th Cir. Oct. 3, to family planning, because serious that in light of the AG’s voluntary de- 2012) (concluding that the BIA criminal nature of the offense out- parture regulation, courts lack au- properly relied on the 2009 and 2010 weighed its political aspect) (*Note: thority to stay voluntary departure Country Reports to find that the gov- court notes motion of counsel to with- periods) ernment rebutted the presumption of draw based on applicant’s admission future persecution on account of the that testimony about hitting official CAT alien’s sexual orientation because the and other evidence were fabricated, reports reflected mostly positive de- which, if true would warrant dismissal Ridore v. Holder, __ F. 3d __, velopments in treatment of homosex- of the petition for abuse of adminis- 2012 WL 4513230 (9th Cir. Oct. 3, uals in Mexico since 1994) trative and judicial process; but court 2012) (holding that the BIA violated concludes that since allegations are its standard of review in reversing an Matter of M-Z-M-R-, 26 I.&N. 28 unsworn and outside record they will IJ’s grant of CAT protection to a U.S. (BIA Oct. 4, 2012) (holding that for an be ignored) criminal deportee claiming likelihood asylum applicant to be able to inter- of being subjected to harsh prison nally relocate safely, there must be an ADJUSTMENT conditions in Haiti constituting tor- area of the country where the circum- ture, where BIA failed to articulate stances are substantially better than Sheikh v. Holder, __ F. 3d __, any standard of review, and in effect those giving rise to a well-founded 2012 WL 4801335 (1st Cir. Oct. 10, applied overall de novo review rather fear of persecution on the basis of the 2012) (affirming IJ’s denial of a con- than clear-error review, by ignoring or original claim; further holding that if tinuance where petitioner conceded failing to address IJ’s findings that i) an applicant is able to internally relo- that he was ineligible for any relief but Haitian government maintains harsh cate, an IJ should balance the factors argued that Congress might pass im- conditions with specific intent to tor- identified at 8 C.F.R. § 1208.13(b)(3) migration laws in the future that ture Haitian prisoners; ii) Haiti’s de- in light of the applicable burden of would make him eligible to adjust his tention policy of U.S. criminal depor- proof to determine whether it would status) tees is an unlawful sanction under be reasonable under all the circum- Haitian law; and iii) applicant was stances to expect the applicant to Nunez-Moron v. Holder, __ F. 3d likely to be subject to torture) relocate) __, 2012 WL 5315860 (7th Cir. Oct. 30, 2012) (deferring to BIA’s decision (Continued on page 20)

19 October 2012 Immigration Litigation Bulletin

trict court could, in its discretion, is- This Month’s Topical Parentheticals sue declaratory relief)

(Continued from page 19) of marijuana” if all the alien’s crimes MOTION TO REOPEN were closely related to or connected CANCELLATION with a single incident in which the Anaya-Aguilar v. Holder, __ F. 3d alien possessed 30 grams or less of __, 2012 WL 4787801 (7th Cir. Oct. Duron-Ortiz v. Holder, __ F. 3d __, marijuana for his or her own use, pro- 4, 2012) (clarifying on denial of re- 2012 WL __ (7th Cir. Oct. 15, 2012) vided that none of those crimes was hearing that the court did “not mean (deferring to the BIA’s interpretation inherently more serious than simple to foreclose review of the Board’s in Matter of Ortega-Cabrera that for possession) denial of a motion to reopen sua purposes of cancellation of removal sponte in case where a petitioner has eligibility, the time period for estab- DETENTION a plausible constitutional or legal lishing GMC is the ten years immedi- claim that the Board misapplied a ately preceding the final administra- United States v. Trujillo-Alvarez, __ legal or constitutional standard”) tive decision) F. 3d __, 2012 WL 5295854 (D. Or. Oct. 29, 2012) (holding that ICE may EAJA Bedoya-Melendez v. United not detain an alien for the purpose of States Att’y Gen., __ F. 3d __, 2012 securing his appearance at a criminal Jeroski v. Federal Mine Safety WL 5259041 (11th Cir. Oct. 25, trial without satisfying the require- and Health Review Com’n, __ F. 3d 2012) (denying en banc rehearing; ments of the Bail Reform Act, which __, 2012 WL 4820609 (7th Cir. Oct. Judge Barkett dissented arguing that gives defendants a statutory right to 11, 2012) (joining eight other circuits the court’s conclusion that there is pre-trial release) in holding that the Supreme Court’s no judicial review of the AG’s deter- “prevailing party” analysis in Buck- mination of whether petitioner was DUE PROCESS hannon applies in the EAJA context; “battered or subjected to extreme rejecting petitioner’s claim that it cruelty” for purposes of cancellation Ruiz-Diaz v. United States, __ F. satisfied prevailing party status eligibility “is based on a misreading 3d __, 2012 WL 4748810 (9th Cir. where the administrative review com- of 8 U.S.C § 1252(a)(2)(B)”) Oct. 5, 2012) (rejecting plaintiffs’ mission dismissed petitioner’s suit claims that the regulation which pre- because the Federal Mine Safety and CRIMES cludes special religious worker appli- Health Administration vacated its cants from filing their visa applica- order against petitioner) Delgado-Hernandez v. Holder, __ tions concurrently with the petitions of F. 3d __, 2012 WL 4784162 (9th their sponsoring employers violates WAIVER Cir. Oct. 9, 2012) (holding that a con- the Religious Freedom Restoration Act viction for attempted kidnapping and the constitutional protections of Lam v. Holder, __ F. 3d __, 2012 under Cal. Pen. Code § 207(a) cate- equal protection and due process) WL __ (7th Cir. Oct. 16, 2012) gorically constitutes a crime of vio- (vacating and remanding BIA’s denial lence because the “ordinary case of JURISDICTION of a section 212(h)(1)(B) waiver be- kidnapping” presents a substantial cause the IJ and BIA overlooked ma- risk of force) Fuller v. BIA, __ F. 3d __, 2012 WL terial evidence relating to petitioner’s __ (2d Cir. Oct. 16, 2012) (holding wife’s depression and improperly Matter of Davey, 26 I.&N. 37 (BIA that petition for review was moot be- relied on a report to determine that Oct. 23, 2012) (holding that: (1) for cause on reconsideration, the BIA petitioner failed to show rehabilita- purposes of section 237(a)(2)(B)(i) vacated and superseded the removal tion) the phrase “a single offense involv- order under review with an order that ing possession for one’s own use of relies on materially different reason- NOTED thirty grams or less of marijuana” ing) calls for a circumstance-specific in-  Renteria v. Metro. Gov’t of Nash- quiry into the character of the alien’s NATURALIZATION ville & Davidson Cnty., __S.W. 3d__, unlawful conduct on a single occa- 2012 WL 4712214) (Tenn. Sup. Ct. sion, not a categorical inquiry into  Klene v. Napolitano, __ F. 3d __, October 4, 2012) (holding that the the elements of a single statutory 2012 WL 4840713 (7th Cir. Oct. 12, Memorandum of Agreement between crime; (2) an alien convicted of more 2012) (joining Third Circuit and hold- U.S. Immigration and Customs En- than one statutory crime may be ing that district court had jurisdiction forcement and the Nashville metro- covered by the exception to deporta- to review USCIS’s denial of naturaliza- politan government, under Section bility for an alien convicted of “a sin- tion despite the commencement of 287(g) of the Immigration and Na- gle offense involving possession for removal proceedings against petition- tionality Act, does not violate state or one’s own use of thirty grams or less er after the denial, and that the dis- local law)

20 October 2012 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions INDEX TO CASES SUMMARIZED IN THIS ISSUE ed that DHS met its burden, by a pre- (Continued from page 18) ponderance of the evidence, to rebut Campbell v. Holder 14 unpublished decision, reversed and the regulatory presumption of future Cruz-Mayaho v. Holder 16 remanded the district court’s dismis- persecution based on evidence of Delgado-Hernandez v. Holder 18 sal for lack of subject matter jurisdic- past persecution. Dong v. Holder 13 tion under the REAL ID Act. In so Duron-Ortiz v. Holder 15 holding, the court instructed the dis- According to the 2009 and 2010 Escobar v. Holder 14 trict court on remand to determine Department of State Country Reports, Fuller v. BIA 01 three issues: (1) whether an alien homosexual conduct had experienced Garfias-Rodriguez v. Holder 01 can pursue a United Nations Conven- growing social acceptance in Mexico; James v. Holder 14 tion Against Transnational Organized gay pride marches were occurring in Lam v. Holder 15 Crime (“UNTOC”) claim before immi- cities across the country, including Lopez-Mendez v. Holder 16 gration tribunals or a circuit court; (2) one in Mexico City in which 400,000 Musau v. Carlson 18 if an alien cannot pursue an UNTOC people participated; Mexico City had Neri-Garcia v. Holder 21 claim in either forum, whether an legalized both gay marriage and Nunez-Moron v. Holder 15 alien is entitled to relief under the adoption by gay couples; and the Rojas-Perez v. Holder 13 UNTOC; and (3) if so entitled, wheth- Mexican Supreme Court required all Ridore v. Holder 17 er the REAL ID Act unconstitutionally Mexican states to recognize gay mar- Ruiz-Diaz v. United States 18 suspends the writ of habeas corpus. riages performed in those states Sheikh v. Holder 13

where it was permitted. Singh v. Holder 15 Contact: Craig Kuhn, OIL-DCS Wanyama v. Holder 16 202-616-3540 On appeal, the BIA adopted the Zheng v. Holder 17 IJ's reasoning regarding DHS's rebut- Tenth Circuit Holds that Country tal of the presumption of future per- Reports Were Sufficient to Rebut secution and his conclusion that peti- the Presumption of Future Persecu- tioner failed to show he would likely tion be tortured if he returned to Mexico.

OIL TRAINING CALENDAR In Neri-Garcia v. Holder, 696 The Tenth Circuit concluded that

F.3d 1003 (10th Cir. October 3, “based on the Country Reports relied November 29, 2012. Brown Bag 2012) (Hartz, Anderson, O’Brien), the on by the BIA, a reasonable adjudica- Lunch & Learn on “Transgender Is- Tenth Circuit concluded that the BIA tor would not be compelled to con- sues” with Civil Rights attorney, Sha- properly relied on the 2009 and clude that [petitioner] would be ron McGowan. 2010 Country Reports to find that threatened upon his removal to Mexi- the government rebutted the pre- co because he is gay. He has not December 14, 2012. Brown Bag sumption of future persecution on shown the BIA's analysis of the Coun- Lunch & Learn with professor Patrick account of the petitioner’s sexual try Reports was flawed or that its con- Weil, author of the just-published orientation because the reports re- clusion regarding fundamental chang- book: The Sovereign Citizen: Denatu- flected mostly positive developments es in the treatment of gays in Mexico ralization and the Origins of the in treatment of homosexuals in Mexi- is not supported by substantial evi- American Republic. co since 1994. dence.”

For additional information about After a credible-fear interview in The court also agreed with the these training programs contact Fran- January 2011, an asylum officer de- BIA’ conclusion that petitioner’s cesco Isgro at: termined that petitioner had a rea- “twenty-seven-year-old evidence of sonable fear of persecution or tor- torture did not establish likely torture [email protected] ture in Mexico, and his case was re- if he returned to Mexico today. ferred to an immigration judge. The

IJ considered his applications for Contact: Walter Bocchini, OIL OTHER UPCOMING EVENTS restriction on removal and for protec- 202-514-0492 tion under the CAT under 8 C.F.R. § December 14, 2012. OIL cele- 1208.16. The IJ found petitioner to be a member of the particular social brates the Holiday Season with its group of homosexual males from Annual White Elephant affairs Mexico, and that he had established past persecution on account of his homosexuality. But the IJ also decid-

21 October 2012 Immigration Litigation Bulletin

INSIDE OIL

At Fall Training: David McConnell, Ernie Molina, Papu Sandhu OIL’s trick-or-treaters stopped by for some treats

Attorney General Eric Holder welcomes trick-or–treaters to his office

The Immigration Litigation Bulletin is a monthly publication of the Office of Im- migration Litigation, Civil Division, U.S. Stuart F. Delery Department of Justice. This publication Principal Deputy Assistant is intended to keep litigating attorneys Attorney General within the Departments of Justice and Homeland Security informed about August Flentje immigration litigation matters and to Acting Deputy Assistant Attorney General increase the sharing of information “To defend and preserve Civil Division between the field offices and Main the Executive’s Justice. authority to administer the David M. McConnell, Director Michelle Latour, Deputy Director Please note that the views expressed in Immigration and Nationality Donald E. Keener, Deputy Director this publication do not necessarily laws of the United States” Office of Immigration Litigation represent the views of this Office or those of the United States Department of Justice. Francesco Isgrò, Senior Litigation Counsel If you would like to receive the Immigration Editor

Litigation Bulletin electronically send your If you have any suggestions, or would Carla Weaver: Contributor like to submit a short article, please email address to: contact Francesco Isgrò at 202-616- Linda Purvin 4877 or at [email protected]. [email protected] Circulation

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