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

Vol. 14, No. 10 October 2010

LITIGATION HIGHLIGHTS Asylum Applicant Was Persecuted on Account of “Other Resistance” Because the Forced IUD Insertion Was ASYLUM

►Court defers to BIA’s interpreta- Accompanied by Threats and Economic Deprivations tion that asylum applicant must show In Fei Mei Cheng v. U.S. Attor- Cheng, a native of China, be- “central reason” for persecution (10th ney General, __ F.3d __, 2010 WL came pregnant in 1996 while living Cir.) 10 3896198 (3rd Cir. October 6, 2010) in China's Fujian Province. However, ►Asylum applicant who was previ- (Fuentes, Aldissert, Roth), the Third under Chinese law she was too ously found not credible, failed to Circuit, while upholding the BIA’s young to marry her boyfriend. Over show changed country conditions (2d finding that the insertion of an in- the course of her pregnancy, local Cir.) 6 trauterine device (IUD) was not per family planning officials employed a CAT se persecution, held that petitioner, pattern of escalating threats in an ►CAT available even where appli- Cheng, was eligible for asylum under effort to persuade her to abort the cant can avoid torture by ceasing po- the “other resistance” provision of pregnancy, but Cheng resisted and litical activities (9th Cir.) 9 INA § 101(a)(42), because she had gave birth to a daughter on January shown “resistance” to China’s popu- 1, 1997. In response to her resis- MTR lation control policies, had received tance to the population control laws ►Motion to reopen in absentia re- threats and other economic depriva- and to induce her to undergo a ster- moval order denied where alien made tions which in the aggregate consti- ilization procedure, the officials con- no effort to update his address (3d tuted persecution, and that the per- fiscated the family farm and truck, Cir.) 8 secution had been on account of her forbade Cheng from working on the resistance to those policies. farm, threatened to take her new- CRIMES (Continued on page 2) ►Possession of 120 grams of mari- juana is an aggravated felony (3d Cir.) 7 ►Criminal alien who obtained Cer- AAG Tony West’s Remarks at 14th Annual tificate of Relief in New York court, OIL Immigration Litigation Conference remains “convicted” for purpose of immigration (2d Cir.) 6 Assistant Attorney General Tony JURISDICTION West, delivered the following re-

►Court lacks jurisdiction to review marks at OIL’s 14th Annual Immi- IJ’s denial of request for continuance gration Litigation Conference, held at the National Advocacy Center on (7th Cir.) 9 September 27–October 1, 2010. RELIEF ►The continuous residence It's always good to be back here requirment under TPS cannot be met at the NAC. I was among the first by imputation (3d Cir.) 7 students to come through here when the NAC opened just over a decade Inside ago and I never pass up an opportu- recognizing the value of this gather- nity to come back and enjoy the ing. 3. Violations of regulations cafeteria's cheese grits. It's also a pleasure to be here with you this And I want to thank you, the pub- 5. Further review pending morning, at the start of OIL's annual lic servants who earn the trust of the 6. Summaries of court decisions conference. This conference has American people every day in the criti- 11. October Parentheticals become an important, regular offer- cally important work you do. The mat- ing here at the NAC, and I want to ters you handle touch on nearly every 14. Inside OIL thank Mike Bailie and his folks for (Continued on page 13) 1 October 2010 Immigration Litigation Bulletin

under Matter of M-F-W- & L-G-, the Forced IUD insertion not per se persecution asylum applicant must prove that “(1) she resisted China's family plan- (Continued from page 1) tute persecution and, alternatively, ning policy, (2) she has been perse- born daughter away from her, and even if it had been persecution, cuted (or has a well-founded fear of imposed various economic and other Cheng had failed to establish a persecution), and (3) the persecution sanctions. Cheng was ultimately nexus between the acts complained was or would be because of the re- forced to have an IUD inserted, and of and her resistance to China’s fam- spondent's resistance to the policy.” soon thereafter in 2000, she and her ily planning program. Here, the court determined that be- boyfriend paid snakeheads to smug- cause Cheng had resisted the popu- gle them out of China and into the In her petition for review to the lation control policies – noting that United States. Third Circuit, Cheng contended that the BIA had assumed as much – she being compelled to wear an IUD and met the first requirement. The court Shortly after her arrival to the being subject to regular gynecologi- then disagreed with the BIA’s conclu- United States, Cheng was placed in cal examinations was tantamount to sion that Cheng had not been sub- removal proceedings where she ap- “sterilization”. Alternatively even if it ject to persecution. In Matter of M-F- plied for asylum as was not “sterilization,” W- & L-G- the BIA held that IUD inser- “person who has been Cheng argued that tion is not “persecution” in the ab- forced to . . . undergo The court theld that she was entitled to sence of “aggravating circum- involuntary steriliza- the BIA’s interpreta- asylum because she stances.” The court found that in tion, or who has been tion that forced IUD had been persecuted deciding Cheng’s claim, the BIA had persecuted for . . . and had a well- only focused on the IUD insertion other resistance to a insertion was insuf- founded fear of perse- and had not considered the cumula- coercive population ficiently permanent cution on account tive effect of her experience. In par- control program” under other resistance to to constitute sterili- ticular, the court found that the BIA INA. § 101(a)(42). China’s population had not taken into account the seri- When the hearing of zation was a per- control policies. ous threats that had been leveled at the merits was con- missible construc- her, the fact that the IUD procedure vened on November 1, The Third Circuit had been performed in a hurried and 2005, Cheng had given tion of the statute. first considered improper manner, and that she had birth to a second child whether the BIA's in- been subject to economic sanctions. and was pregnant with a third child. terpretation of the statutory term When considered in the aggregate, The IJ found Cheng’s testimony credi- “sterilization” under Matter of M-F-W- the court held, these experiences ble and initially granted asylum find- & L-G-, was entitled to deference. amounted to past persecution. ing a well-founded fear of persecution Applying the Chevron two-step analy- because she had three children, with sis, the court found that the term Third, and finally, the court two of them being unauthorized. On “involuntary sterilization” was am- found that there was direct evidence appeal, the BIA remanded the case to biguous, rejecting petitioner’s con- in the record to compel the conclu- the IJ in light of two published BIA tention that the insertion of an IUD sion that Cheng had been harmed decisions. Upon reconsideration the was a form of sterilization. The court on account of resistance to China’s IJ denied the application for asylum explained that the term contem- family planning policies. The court and Cheng appealed to the BIA. The plates a permanent inhibition of re- rejected the BIA’s conclusion that BIA upheld the denial and it relied productive capacity, and that Con- the only relevant act of mistreatment primarily on Matter of M-F-W- & L-G-, gress had not directly spoken to “the to establish the nexus was the IUD 24 I&N Dec. (BIA 2008), a precedent precise question of whether com- insertion. “No reasonable adjudica- decision issued after the IJ’s second pelled IUD insertion, plus monitoring tor could conclude that these events opinion. In that case, the BIA held (1) falls within the ambit of the statutory were ‘unconnected’ to Cheng’s acts that the insertion of an IUD does not term.” The court then held that the of resistance,” said the court. constitute persecution in and of itself BIA’s interpretation that forced IUD absent aggravating circumstances, insertion was insufficiently perma- Accordingly, the court held that and (2) that the reinsertion of an IUD nent to constitute sterilization was Cheng had been persecuted on ac- typically is not persecution on ac- “not only a permissible construction count of her resistance to China’s count of resistance to a family plan- of the statute's terms, but it also coercive population control policies ning program, since women in China finds support in the legislative his- and remanded the case to the BIA whose IUDs fall out or are removed tory of IIRIRA.” for its exercise of discretion. always have the devices reinserted, whether or not they resisted the fam- Second, the court considered By Francesco Isgro, OIL ily planning program. Applying M-F-W- Cheng’s contention that she was &L-G- to Cheng’s claim, the BIA held eligible under the “other resistance” Briena Strippoli, OIL that the IUD insertion did not consti- provision. The court explained that 202-305-7029 2 October 2010 Immigration Litigation Bulletin No Harm, No Foul: When Must Aliens Demonstrate Prejudice When Immigra- tion Officials Violate Their Own Regulations?

A government agency “must adopted a two-part analysis to be The Board adopted the Ninth scrupulously observe rules, regula- applied when determining whether Circuit’s two-prong approach in Mat- tions, or procedures which it has agency violation of its own regula- ter of Garcia-Flores, 17 I&N Dec. established” and “when it fails to do tions invalidates an underlying re- 325, 329 (BIA 1980); see also Mat- so, its action cannot stand and moval order. First, the court must ter of Hernandez, 21 I&N Dec. 224 courts will strike it down.” United determine whether the regulation (BIA 1996). Setting forth the States v. Heffner, 420 F.2d 809, “serves a purpose of benefit to the “general rule” that aliens must 811 (4th Cir. 1969). Lest the reader alien” and second, if it does, viola- “specifically demonstrate” prejudice get too comfortable with this legal tion of such regulation will render resulting from the agency’s regula- maxim, it is also a “general principle the removal unlawful “only if the tory violation, the Board further clari- that ‘it is always within the discretion violation prejudiced interests of the fied that prejudice may be pre- of . . . an agency to relax or modify its alien” and such prejudice “relate[d] sumed where (1) “compliance with procedural rules to the interests pro- the regulation is mandated by the adopted for the or- tected by the regula- Constitution,” and (2) “an entire derly transaction of “Where an INS regula- tion.” Id.; United procedural framework, designed to business before it tion does not affect fun- States v. Rangel- insure the fair processing of an ac- when in a given case damental rights derived Gonzales, 617 F.2d tion affecting an individual is cre- the ends of justice from the Constitution or 529, 530 (9th Cir. ated but then not followed by an require it.’” American a federal statute,” the 1980). agency.” Matter of Garcia-Flores, Farm Lines v. Black Second Circuit will in- 17 I&N Dec. at 329. See also Marti- Ball Freight Service, validate the challenged This test was nez-Camargo v. INS, 282 F.3d 487, 397 U.S. 532, 539 proceeding “only upon a applied as recently as 491 (7th Cir. 2002) (adopting the (1970), quoting NLRB September in United Board’s approach in Matter of Gar- showing of prejudice to v. Monsanto Chemi- States v. Ramos, __ cia-Flores because it “strikes the cal Co., 205 F.2d the rights sought to be F.3d __, 2010 WL proper balance” between the need 763, 764 (8th Cir. protected by the subject 3720208 (9th Cir. for agencies to follow their own 1953); see also Les- regulation.” Sept. 24, 2010). In rules and the “practical reality” that lie v. Att’y Gen., 611 Ramos, the Ninth Cir- not every violation impacts substan- F.3d 171, 176 (3d Cir. 2010) (“not cuit declined to dismiss the indict- tive rights). every promulgated regulation is of ment against an alien charged with such a nature that a violation should unlawful reentry after deportation The Fourth Circuit voiced its invalidate agency action.”). This arti- despite the court’s finding that the approval of the Ninth Circuit’s test, cle explores the tension between Immigration Judge and DHS violated as adopted by the Board in Garcia- these seemingly contradictory princi- 8 C.F.R. § 1003.25(b) by failing to Flores, in Delgado-Corea v. INS, 804 ples and summarizes circuit prece- determine whether his waiver of his F.2d 261 (4th Cir. 1986). In dent in an effort to help litigators appeal rights was “voluntary, know- Delgado, the court held that INS’s reconcile them. ing, and intelligent.” Id. at *9. De- failure to provide the alien with a list spite finding Ramos’s stipulated re- of free legal services available In the immigration context, the moval proceedings “invalid,” the where the deportation hearing was various circuits have navigated the Court affirmed the district court’s to be held, in contravention of for- waters of agency noncompliance denial of Ramos’s motion to dismiss mer 8 C.F.R. § 242.1(c), was not differently. In United States v. the indictment because Ramos actionable because the alien failed Calderon-Medina, 591 F.2d 529, failed to establish prejudice as he to demonstrate prejudice where she 531 (9th Cir. 1979), the Ninth Circuit was statutorily ineligible for relief. waived her right to counsel at the rejected the government’s argument Id. at *10; see also United States v. deportation hearing. Id. at 263. that violations of INS regulations Gonzalez-Valerio, 342 F.3d 1051 invalidate deportation orders only (9th Cir. 2003) (refusing to dismiss The Second Circuit took a very where the violation denies due proc- alien’s indictment for unlawful reen- different approach, however, to a ess or fundamental fairness in the try despite alien not being informed similar regulatory violation in Picca deportation hearing, as well as the of his right to seek relief under for- v. Mukasey, 512 F.3d 75 (2d Cir. contrary argument that any violation mer section 212(c) of the Immigra- 2008). In Picca, the court found of regulation automatically invali- tion and Nationality Act (“INA”) in that the Immigration Judge violated dates the deportation, without re- underlying proceedings where alien 8 C.F.R. § 1240.10(a) when he gard to whether the alien suffered could not establish prejudice due to failed to explain that free legal ser- prejudice. Instead, the court statutory ineligibility for relief). (Continued on page 4)

3 October 2010 Immigration Litigation Bulletin

dice, when a violation of im- No harm, no foul migration regulations impli- cates less than fundamental rights, wholesale remand (Continued from page 3) may have affected the outcome of places an “unwarranted and vices might be available to the alien, the proceeding, conscience-shocking potentially unworkable bur- did not ascertain that Picca had conduct, or a deprivation of funda- den on the agency’s adjudi- received a list of these services, and mental rights.”). cation of immigration cases.” no list appeared in the record. Id. at 79. Declining to adopt the Calderon The Third Circuit has adopted a Id. at 178-79. -Medina approach, the Second Cir- similar approach. In Chong v. INS, cuit found that the Immigration 264 F.3d 378 (3d Cir. 2001), the The Fifth Circuit, too, appears Judge’s failure to follow these estab- court required a showing of preju- more willing to excuse violations of lished procedures “constitute[d] dice to obtain a new removal hearing agency regulations that are not ‘reversible error,’ without a showing based on the Immigra- grounded in the Con- of prejudice, because . . . the right to tion Judge’s failure to stitution or federal counsel concerns ‘fundamental no- notify the parties in The Fifth Circuit, statute. In Arzanipour tions of fair play underlying the con- the Notice of Certifica- v. INS, 866 F.2d 743 cept of due process,’ and tion to the Board that too, appears more (5th Cir. 1989), the ‘remanding for agency compliance they had a right to willing to excuse court upheld the with its own rules would actively make representations violations of Board’s dismissal of encourage such compliance.’” Id., before that entity. The the alien’s appeal quoting Montilla v. INS, 926 F.2d court classified former agency regula- despite the Immigra- 162, 167, 169 (2d Cir. 1991). 8 C.F.R. § 3.7, also at tions that are not tion Judge’s failure to issue in Waldron, as grounded in the inform the alien of his On the other hand, the Second procedural in nature, right to appeal. The Circuit has held that “where an INS and agreed with the Constitution or court observed that regulation does not affect funda- Second Circuit that it federal statute. “failure of an agency mental rights derived from the Con- was not “grounded in to follow its own regu- stitution or a federal statute,” the any underlying funda- lations is not . . . a per court will invalidate the challenged mental constitutional or statutory se denial of due process unless the proceeding “only upon a showing of right.” Id. at 390, quoting Waldron, regulation is required by statute.” prejudice to the rights sought to be 17 F.3d at 518. Id. at 746. Despite finding that the protected by the subject regulation.” regulation at issue, former 8 C.F.R. Waldron v. INS, 17 F.3d 511, 518 Not until July 2010 did the § 3.3, “not required by statute,” the (2d Cir. 1994) (failure to notify alien Third Circuit “formulate a frame- court analyzed alleged prejudice to of his right to contact consular or work” governing the inverse: the alien anyway, noting that Arzani- diplomatic authorities in his country “violations of regulations promul- pour apparently learned of his right of nationality and to properly certify gated to protect fundamental statu- to appeal prior to the deadline but his case to the Board did not war- tory or constitutional rights need not not how long he had to file his ap- rant remand in the absence of be accompanied by a showing of peal. Because the regulation re- prejudice, where neither regulation prejudice to warrant judicial relief.” quired the Immigration Judge inform “implicate[d] fundamental rights Leslie, 611 F.3d 171. Mindful of the aliens of their appeal right, not the with constitutional or federal statu- goal posts set by prior precedent time frame, the court found that the tory origins”); see also Ali v. Mu- addressing these issues, the court Immigration Judge’s failure “did not kasey, 524 F.2d 145 (2d Cir. 2008) stated: result in substantial prejudice to the (termination of removal proceedings petitioner.” Id. not required, absent prejudice, de- “[W]e believe a prejudice rule spite DHS’s failure to allow aliens to that distinguishes between Just as it is true that “agencies withdraw their asylum applications regulations grounded in fun- must comply with their own regula- in contravention of 8 C.F.R. § 103.2 damental constitutional or tions,” it is equally clear that “an (b)(6), because the regulation pri- statutory rights and agency- administrative agency is not a slave marily addresses procedure, rather created benefits successfully of its rules.” Ramos-Sepulveda v. than an underlying fundamental [distinguishes between ex- INS, 743 F.2d 1307, 1310 (9th Cir. constitutional or statutory right); empted] procedural regula- 1984); Waldron, 17 F.3d at 518. Rajah v. Mukasey, 544 F.3d 427 tions [and] regulatory viola- Case law addressing agency viola- (2d Cir. 2008) (“[P]re-hearing regu- tions [that] are so serious as tions of their regulations reflects latory violations are not grounds for to merit judicial relief. We jurists’ efforts, some more success- termination, absent prejudice that also agree that, absent preju- (Continued on page 15)

4 October 2010 Immigration Litigation Bulletin FURTHER REVIEW PENDING: Update on Cases & Issues

Particularly Serious Crimes general order were missing an ele- Contact: Mary Jane Candaux, OIL ment of the generic crime alto- 202-616-9303 On December 16, 2010, the gether. Ninth Circuit will hear oral argument Convictions — State Expungements on rehearing en banc in Delgado v. Contact: Holly M. Smith, OIL Holder, 563 F.3d 863 (9th Cir. 202-305-1241 On December 14, 2010, the 2009). The questions presented Ninth Circuit will hear oral argument are: 1) must an offense constitute Derivative Citizenship on en banc rehearing in Nunez- an aggravated felony in order to be Equal Protection Reyes v. Holder, 602 F.3d 1102 (9th considered a particularly serious Cir. 2010). Based on Ninth Circuit crime rendering an alien ineligible On November 10, 2010, the precedents, the panel had applied for withholding of removal; 2) may Supreme Court heard argument in equal protection principles and held the BIA determine in case-by-case Flores-Villar v. United States, 130 that the alien's state conviction for adjudication that a non-aggravated S. Ct. 1878. The Court will consider using or being under the influence of felony crime is a PSC without first the following question: Does defen- methamphetamine was not a valid classifying it as a PSC by regulation; dant’s inability to claim derivative "conviction" for immigration purposes and 3) does the court lack jurisdic- citizenship through his U.S. citizen (just as a disposition under the Fed- tion, under 8 U.S.C. § 1252(a)(2)(B) father because of residency require- eral First Offender Act would not be), (ii) and Matsuk v. INS, 247 F.3d 999 ments applicable to unwed citizen and thus could not be used to render (9th Cir. 2001), to review the merits fathers but not to unwed citizen him ineligible for cancellation of re- of the Board's PSC determinations mothers violate equal protection, moval. The government argued in its in the context of both asylum and and give defendant a defense to petition that the court’s "equal protec- withholding of removal? criminal prosecution for illegal reen- tion" rule conflicts with six other cir- try under 8 U.S.C. § 1326 The deci- cuits, is erroneous, and disrupts na- Contact: Erica Miles, OIL sion being reviewed is U.S. v. Flores- tional uniformity in the application of 202-353-4433 Villar, 536 F.3d 990 (9th Cir. 2008). congressionally-created immigration law. Aggravated Felony — Missing Element Contact: Carol Federighi, OIL 202-514-1903 Contact: Holly M. Smith, OIL The government has filed a 202-305-1241 petition for rehearing en banc in Due Process — Duty to Advise Aguilar-Turcios v. Holder, 582 F.3d Aggravated Felony — Pre-1988 1093 (9th Cir. 2009). The court In U.S. v. Lopez-Velasquez, 568 ordered the alien to respond, the F.3d 1139 (9th Cir. 2009), the court On June 14, 2010, the govern- response was filed, and the Federal held that defendant’s due process ment filed a petition for rehearing en Public and Community Defenders rights were violated when the IJ did banc in Ledezma-Garcia v. Holder, have applied to file a brief as not inform him that he was eligible (9th Cir. 2010), where the Ninth Cir- amicus curiae. The government peti- for discretionary relief even though cuit had held that the Anti-Drug Abuse tion challenges the court’s use of defendant was indeed not eligible Act of 1988, that made aliens deport- the “missing element” rule for ana- under the law as it then existed. On able for aggravated felony convictions lyzing statutes of conviction. The March 8, 2010, the Ninth Circuit did not apply to convictions prior to panel majority held that the alien's granted rehearing en banc and va- November 18, 1988. The petitioner conviction by special court martial cated the panel’s opinion. had been order removed from the U.S. for violating Article 92 of the Uni- based on his commission of an aggra- form Code of Military Justice (10 The question presented is: vated felony of sexually molesting a U.S.C. § 892) — incorporating the Whether an illegal reentry defendant minor. The question presented to the Department of Defense Directive had a due process right to be ad- court is whether the Anti-Drug Abuse prohibiting use of government com- vised in his underlying deportation Act that made aliens deportable for puters to access pornography — was proceeding of his potential eligibility aggravated felony convictions applies not an aggravated felony under 8 for discretionary relief under INA to convictions entered prior to its en- U.S.C. § 1101(a)(43)(I) because 212(c), where the defendant was actment on November 18, 1988. neither Article 92 nor the general not then eligible for that discretion- order required that the pornography ary relief, but there was a plausible Contact: Robert Markle, OIL at issue involve a visual depiction of argument that the law would change 202-616-9328 a minor engaging in sexually explicit in defendant’s favor.

conduct, and thus Article 92 and the

5 October 2010 Immigration Litigation Summaries Of Recent Federal Court Decisions pared in anticipation of questions First Circuit Holds Chinese FIRST CIRCUIT about the contents of their apart- Alien, Whose Previous Falun Gong ment, the patterns of their daily liv- Claim Was Found Not Credible, Fist Circuit Upholds Denial of ing, and the members of his wife’s Failed To Establish Changed Coun- Removal of Conditional Residence family. Petitioner was then served try Conditions For Falun Gong Prac- Where Petitioner Had committed with an NTA and charged with re- titioners Marriage Fraud movability has an alien who sought to procure immigration status by In Le Bin Zhu v. Holder, __ F.3d In Pena-Beltre v. Holder, __ fraud. __, 2010 WL 4010125 (1st Cir. Oc- F.3d __, 2010 WL 3991694 (1st tober 14, 2010) (Lynch, Boudin, Li- Cir. Oct. 13 2010) (Lynch, Selya, On April 11, 2006, petitioner pez), the First Circuit held that the Boudin), the First Circuit upheld the filed another I-751 petition claiming BIA’s did not abuse its discretion by BIA’s denial of petitioner’s request eligibility on the basis that he had denying the alien’s untimely motion for removal of the conditions on his married in good faith but his mar- to reopen based on changed country conditional lawful residence status riage had ended in divorce. At the conditions. The alien had previously and voluntary departure. The peti- hearing petitioner did not testify but sought asylum on account of his tioner entered the United States he presented testimony from his Christian faith and practice of Falun illegally on Septem- neighbors. The government pre- Gong. The agency found these ber 1, 1996 and on sented the testimony of claims not credible. In an untimely January 25, 2001, The First Circuit petitioner’s former motion to reopen, the petitioner al- married a United spouse. However, leged changed country conditions for States citizen. found the when she took the Falun Gong practitioners, submitting Based on that mar- stand, she said that an affidavit from his mother and an riage, two weeks evidence of they had married for unauthenticated village notice. The later petitioner ap- marriage fraud love and that the gov- court explained that the self-serving plied for adjustment ernment had pressured affidavit from the alien’s mother and of status. On April “so overwhelm- her in signing a sworn- the unauthenticated village notice 12, 2002, peti- statement even though merited little evidentiary weight, in tioner and his wife ing that it hardly it was false. The gov- light of the prior adverse credibility were interviewed by ernment trial attorney determination. INS adjudicator needs detailing.” the introduced testi- where they claimed mony about a confer- Contact: Tim Ramnitz, OIL they had married for love and re- ence call on the previous day when 202-616-2686 sided together as husband and wife. she admitted that her marriage to Petitioner was then granted condi- petitioner had been fraudulent. The SECOND CIRCUIT tional residence status. IJ did not believe her story, denied petitioner’s request for removal of On March 1, 2004, petitioner the condition and voluntary depar- Second Circuit Holds That Alien and his wife filed an I-751 joint peti- ture. The BIA affirmed finding no Convicted Of State Drug Offense tion to remove the conditions on evidence that the marriage had been Remains “Convicted” For Immigra- petitioner’s LPR status. In response performed in good-faith. tion Purposes, Notwithstanding to the filing, they were again sub- State’s Certificate Of Relief ject to separate interviews. The The First Circuit found the evi- adjudicator found inconsistencies in dence of marriage fraud “so over- In Wellington v. Holder, 623 their separate statements and oral whelming that it hardly needs detail- F.3d 115 (2d Cir. 2010) (Walker, testimony. Petitioner’s wife then ing,” and rejected the petitioner’s Cabranes, Scheindlin) (per curiam), confessed that they had married for argument that DHS should have pro- the Second Circuit held, in a matter money. Apparently, petitioner’s wife duced the videotape of the marriage of first impression, that an alien con- had also contacted INS following interview. The court also held that it victed of a state drug possession their marriage stating that the mar- lacked jurisdiction to review the de- offense remained “convicted” of the riage was fraud and that petitioner nial of voluntary departure. offense for immigration purposes had only paid $500 instead of the after receiving a Certificate of Relief. promised $2,000. Following the Contact: Tim Ramnitz, OIL interview, petitioner was subject to a 202-616-2686 The petitioner, a citizen of Ja- pat down search and the ICE investi- maica, entered the United States gator discovered handwritten notes which appeared to be answers pre- (Continued on page 7) 6 October 2010 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions

(Continued from page 6) gible for cancellation of removal. The tion to determine the factual basis of without inspection on or about Janu- BIA affirmed for the same reasons. the conviction. ary 23, 1981. On June 21, 1986, she married Steven Wellington, a United The Second Circuit held that The court further determined States citizen, and on October 29, such state rehabilitative treatment that the alien possessed the equiva- 1989, she was granted temporary did not preclude use of the underlying lent of 241 marijuana cigarettes, resident status under 8 U.S.C. § offense as a basis for removal under noting that under the Sentencing 1255a. On May 23, 1995, she was 8 U.S.C. § 1182(a)(2)(A) Guidelines, one mari- convicted in New York state court of (i)(II) or as a basis for juana cigarette is criminal possession of a controlled ineligibility for cancella- “Petitioner pos- equivalent to .5 substance in the seventh degree tion of removal under 8 sessed the equiva- grams. U.S.S.G. § (cocaine), under N.Y. Penal Law § U.S.C. § 1229b(b)(1), lent of 241 mari- 2D1.1. Given that 220.03, and sentenced to 120 days where the relief was not criterion, said the in jail. On May 13, 1996, the INS sent related to a procedural juana cigarettes, court “petitioner pos- her an order terminating her tempo- or substantive defect in well beyond the sessed the equivalent rary resident status because of her the criminal proceed- of 241 marijuana drug conviction. On February 15, ings, even where the single cigarette cigarettes, well be- 2007, she was arrested and charged alien would have been envisioned by yond the single ciga- with removability as an alien who was eligible for Federal First rette envisioned by unlawfully present in the United Offender Act (FFOA) Senator Kennedy Senator Kennedy and States without being admitted or pa- treatment had she been and the Congress.” the Congress,” when roled and as an alien convicted of a charged with drug pos- they wrote the exemp- controlled substance offense session in federal court. tion for someone who (predicated on her 1995 cocaine con- The court found there was a rational possesses 30 grams or less of mari- viction). basis for distinguishing between juana, describing this as an exception aliens whose criminal cases were dis- for personal use. 8 U.S.C. § 1227(a) While her removal proceedings missed under the FFOA and aliens (2)(B)(i). were pending, petitioner filed a mo- who receive Certificates of Relief or tion to vacate her controlled sub- similar state rehabilitative relief. Contact: Kathryn L. DeAngelis, OIL stance conviction in New York state 202-305-2822 court claiming that she had not re- Contact: Hillel R. Smith, OIL ceived effective assistance of counsel 202-353-4419 Third Circuit Holds That For Pur- during the prior criminal proceedings. poses Of Continuous Residence Re- The state court denied her motion to THIRD CIRCUIT quirement The Residence Of Aliens’ vacate the conviction, finding that the Parents Could Not Be Imputed To record did not demonstrate ineffective  Aliens assistance of counsel under federal or Third Circuit Holds That Alien’s state constitutional standards. How- Conviction For Possession With In- In De Leon-Ochoa v. Holder, 622 ever, the court issued a Certificate of tent To Distribute 120.5 Grams Of F.3d 341 (3d Cir. 2010) (Fuentes, Relief from Disabilities arising out of Marijuana Constituted An Aggra- Aldisert, Roth), the petitioners challen- the conviction, which it believed was vated Felony ged the BIA’s denial of their applica- warranted for rehabilitative and immi- tions for Temporary Protected Status gration purposes. The IJ determined In Catwell v. Holder, 623 F.3d (“TPS”) for failure to personally satisfy that under the definition of 199 (3d Cir. 2010) (Rendall, Jordan, the statutory requirements of “conviction,” as explained by the BIA Greenaway), the Third Circuit held “continuous residence” and in Matter of Roldan, 22 I&N Dec. 512 that the alien’s Pennsylvania convic- “continuous physical presence.” They (BIA 1999), no effect was to be given tion under 35 PA. STAT. ANN. § 780- also contended that they fulfilled the to a state rehabilitative action such as 113(a)(30), for possession with intent statutory requirement of “continuous an expungement or Certificate of Re- to distribute 120.5 grams of mari- residence,” 8 U.S.C. § 1254a(c)(1)(A) lief, unless the state court action was juana constituted an aggravated fel- (ii), via imputation of their parents' related to a substantive or procedural ony, thereby rendering him ineligible residence. Petitioners additionally defect in the underlying criminal pro- for cancellation of removal. Because contended that they satisfy the statu- ceeding.. Accordingly, the IJ deter- the Pennsylvania statute was divisi- tory requirement of “continuous physi- mined that petitioner’s controlled sub- ble, the court applied the modified cal presence,” 8 U.S.C. § 1254a(c)(1) stance conviction subjected her to categorical approach and considered (A)(i), because the statutory term removal under and rendered her ineli- the record of petitioner's state convic- “most recent designation” rightfully is (Continued on page 8) 7 October 2010 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions have had an incentive to avoid his (Continued from page 7) Spanish of the charges against him read to encompass TPS extensions as and the consequences of failing to removal hearing. Accordingly, an evi- well as designations. The government appear for his removal hearing. The dentiary hearing was not called for argued that the plain text of the statu- NTA stated in English that an alien is and the BIA acted within its discre- te, the implementing regulations, and required to immediately inform the tion in denying his motion to re- the consistent position of the Attorney Immigration Court of a change in ad- open,” concluded the court. General require appli- dress. Petitioner then cants to individually changed address wi- Contact: Joanna Watson, OIL satisfy the “continuous The court held thout notifying immigra- 202-532-4275 residence” require- tion authorities. The ment. that, for purposes Immigration Court sent FIFTH CIRCUIT of the continuous him a Notice of Hearing Abandonment Of LPR Status The Third Circuit residence require- by regular mail to the agree with the govern- address on the NTA, for While A Habeas Petition Is Pending ment’s position. The ment for TPS, the a hearing to take place Does Not Deprive The BIA Of Juris- court held that, for pur- residence of the on January 5, 2005. diction Over A Remanded Appeal The hearing took place poses of the continuous aliens’ parents residence requirement in petitioner’s absence In Rodriguez-Barajasv. Holder, for TPS, the residence could not be impu- and he was ordered __ F.3d __, 2010 WL 4075078 (5th of the aliens’ parents ted to aliens. removed in absentia to Cir.October 19, 2010) (Davis, Smith, could not be imputed to Uruguay. In April 2007, Southwick), in a published decision, , aliens, and the statuto- petitioner filed a motion the Fifth Circuit remanded the BIA’s ry term “most recent designation” to reopen removal proceedings pur- decision that it lacked jurisdiction applied to the original designation of a suant to 8 C.F.R. § 1003.23(b)(4)(iii) over the alien’s appeal. Prior to the country for temporary protected sta- (A)(2), claiming that he had never re- Supreme Court’s decision in Lopez v. tus and not to subsequent extensions. ceived notice of the hearing. The IJ Gonzales, 549 U.S. 47 (2006), the denied the motion, and the BIA affir- BIA held the alien was an aggravated Contact: Aviva L. Poczter, OIL med. felon because of his Texas felony 202-305-9780 drug possession conviction. The The case was later remanded to alien filed a habeas petition, but whi- Third Circuit Upholds Denial Of the BIA to reconsider its decision in le it was pending, he voluntarily relin- Motion To Reopen Where Alien light of Santana Gonzalez v. Attorney quished his LPR status and left the Made No Affirmative Efforts To Up- General, 506 F.3d 274 (3d Cir. United States. The habeas resulted date His Address Despite Being In- 2007). The BIA again denied the mo- in remand to the BIA, but the BIA formed Of The Obligation tions and distinguished Santana Gon- concluded it lacked jurisdiction un- zalez by noting that, although the der 8 C.F.R. § 1003.4. The Fifth Cir- In Ramos-Olivieri v. Holder, __ alien there was no longer at the ad- cuit held the departure bar did not F.3d __, 2010 WL 3610185 (3d Cir. dress she had provided, a responsible apply based on the plain language of October 17, 2010) (Sloviter, Barry, person was available at the address the regulation, because the BIA had Smith), the Third Circuit held that the to forward her mail. Because petitio- issued a “final” decision that was BIA acted within its discretion in de- ner had not provided notice of a chan- actively on habeas review prior to the nying a motion to reopen filed by an ge of address, the BIA again conclu- alien’s departure. alien who had been ordered removed ded that notice was not required un- in absentia and then subsequently der 8 U.S.C. § 1229a(b)(5)(B). Contact: Michael Heyse, OIL married a naturalized citizen. 202-305-7002 The court agreed with the BIA, The petitioner, a citizen of Uru- explaining that unlike the alien in San- Fifth Circuit Upholds Finding guay, entered the United States in tana Gonzalez, petitioner “made no That Alien’s Conviction For Aggra- February 2001 as a nonimmigrant arrangements with a responsible per- vated Assault Constitutes A Crime visitor with authorization to stay for six son to forward his mail nor did he pro- Of Domestic Violence Pursuant To 8 months. He overstayed his visa. On vide the postal service with a forwar- U.S.C. § 1227(a)(2)(E)(i) April 6, 2004, DHS issued a warrant ding address.” The court also noted for his arrest and took him into custo- tht petitioner did not even assert that In Bianco v. Holder, __ F.3d __, dy. Petitioner was personally served he was eligible for any form of relief 2010 WL 4069531 (5th Cir. October with NTA charging which indicated from removal (except voluntary depar- 19, 2010) (Clement, Southwick, petitioner’s address, and, according ture) prior to his marriage to a U.S. Haynes), the Fifth Circuit upheld the to the NTA, he was orally notified in citizen in March 2007. “He thus would (Continued on page 9) 8 October 2010 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions (Continued from page 8) lum applications, which, when taken as (1). He was sentenced to four years in BIA’s holding that the alien’s convic- a whole, cast serious doubt on her prison. tion for aggravated assault constituted claims. a crime of domestic violence pursuant The court ruled the Alaska coer- to 8 U.S.C. § 227(a)(2)(E)(i). In parti- The court also agreed with the cion statute provided the fear instilled cular, relying on the Supreme Court’s agency that, even if petitioner were in the victim could be physical injury or decisions in United States v. Hayes, assumed to be credible, she still failed any other crime, and had not been 129 S. Ct. 1079 (2009), and Nijhawan to establish that the attacks on her interpreted more narrowly by Alaskan v. Holder, 129 S. Ct. 2294 (2009), the family constituted persecution or were courts. As such, the court ruled the court held that the domestic relation- related to political opi- plain language of the Alaska coercion ship that must exist for application of nion or any other pro- statute was broader than Section 1227(a)(2)(E)(i) can be proven tected ground. Regar- The court ruled the the generic federal defi- by evidence generally admissible for ding petitioner’s mo- plain language of the nition, which requires proof of facts in administrative procee- tion to reopen, the Alaska coercion statu- use or threatened use of dings, in this case the affidavit of pro- court held that the physical force against a bable cause and criminal complaint. agency did not abuse te was broader than person. its discretion in de- the generic federal de- Contact: Jennifer Paisner Williams, OIL nying her motion to finition, which requi- Contact: Aimee Frede- 202-616-8268 reopen on ineffective rickson, OIL assistance of counsel res use or threatened 202-305-7203 use of physical force SEVENTH CIRCUIT grounds where she had not shown that the against a person. Ninth Circuit Rules newly-proffered eviden- That CAT Protection Is Seventh Circuit Holds It Lacks ce was previously una- Available Even If Alien Jurisdiction To Review An Immigra- vailable, or that she had suffered preju- Could Avoid Torture By Avoiding Poli- tion Judge’s Denial Of Continuance dice as a result of the alleged ineffecti- tical Activities ve assistance of counsel. In Pawlowska v. Holder, __ F.3d In Edu v. Holder, __ F.3d __, __, 2010 WL 4137567 (7th Cir. Octo- Contact: Ann Welhaf, OIL 2010 WL (9th Cir. October 26, 2010) ber 22, 2010) (Wood, Evans, Tinder), 202-532-4090 (Ferdinand, Silverman, Duffy the Seventh Circuit, held that it lacked (S.D.N.Y.)), the Ninth Circuit reversed jurisdiction under INA § 242(a)(2)(B)(i) NINTH CIRCUIT the BIA’s holding denying CAT protec- to review an immigration judge’s conti- tion to an applicant from Nigeria. The nuance denial where such a denial Ninth Circuit Holds That Conviction court found the alien had suffered was “ancillary to an adjustment of sta- Under Alaska “Coercion” Statute Is past torture, including female genital tus application,” and was based on the Not Categorically A Federal Crime Of mutilation, in Nigeria before coming to immigration judge’s determination that Violence the U.S. in 1989. She lost LPR status he would ultimately deny the alien’s due to an aggravated felony in Califor- adjustment of status application as a In Cortez-Guillen v. Holder, 623 nia and filed for CAT protection. The matter of overall discretion. F.3d 933 (9th Cir. 2010) (Hawkins, BIA reversed the Immigration Judge’s McKeown, Bea), the Ninth Circuit held grant of CAT, and the alien filed a mo- Contact: Jessica Segall, OIL that an Alaska criminal law prohibiting tion to reopen her proceedings, which 202-616-9428 “coercion” does not automatically the Board denied. equate with a federal “crime of violen- Seventh Circuit Upholds Denial Of ce,” as the BIA had determined. The The Ninth Circuit considered the Petitioner’s Ineffective Assistance Of petitioner, a citizen of Mexico, entered initial CAT decision on the merits, and Counsel And Adverse Credibility the United States on July 6, 1973, as a held CAT protection cannot be denied Claims lawful permanent resident. On June based on the ability to avoid torture by 16, 2006, he was arrested and char- refraining from political activity. The In Toure v. Holder, __ F.3d __, ged with sexual abuse of a minor in the Ninth Circuit directed relief but reman- 2010 WL 3928694 (7th Cir. October second degree, in violation of Alaska ded for consideration of the female 8, 2010) (Flaum, Evans, Williams), the Statute § 11.41.436(a)(2). That char- genital mutilation claim. Seventh Circuit held that the agency’s ge was ultimately dropped and, on Sep- adverse credibility finding was suppor- tember 16, 2008, he instead pleaded Contact: Liza Murcia, OIL ted by specific, cogent reasons, inclu- guilty to one count of coercion, in viola- 202-616-4879 ding several discrepancies between tion of Alaska Statute § 11.41.530(a) the petitioner’s testimony and her asy- (Continued on page 10)

9 October 2010 Immigration Litigation Bulletin Summaries Of Recent Federal Court Decisions (CNRA) did not count towards the resi- TENTH CIRCUIT DISTRICT COURTS dency and physical presence require- ments for aturalization. The court held

(Continued from page 9) Southern District Of California the plain language of CNRA’s Section Grants Government’s Motion For 705(c) shows Congress only intended Tenth Circuit Upholds Finding Summary Judgment In Naturalization that an alien's presence in the CNMI That Alien Did Not Establish That His Case Where Alien Failed To Meet The “before, on, or after” the CNRA’s Political Opinion Was One Central Five-Year Residency Requirement enactment counts as presence in the Reason Why Maoists Targeted Him United States “for the purpose only of In Alenazi v. USCIS No. 09-cv- determining whether an alien lawfully In Dallakoti v. Holder, 619 F.3d 2053 (S.D. Cal. October 12, 2010) admitted for permanent residence . . . 1264 (10th Cir. 2010) (Tacha, Luce- (Sabraw, J.), the district court granted has abandoned or lost such status by ro,Murphy), the Tenth Circuit affirmed the government’s motion for summary reason of absence from the United the BIA’s denial of judgment on plaintiff’s States.” Accordingly, an alien’s presen- petitioner’s asylum naturalization claim. ce in the CNMI did not count as con- claim based on As a result of the Plaintiff applied for natu- tinuous residency in the United States Maoists threats in ralization on the basis of or physical presence in the United Sta- Nepal. The petitio- divorce, plaintiff his marriage to his United tes for purposes of the naturalization ner claimed that in could not meet States citizen wife, three requirements. Nepal he was per- the requirement years after obtaining law- secuted by the ful permanent residency. Contact: Samuel Go, OIL DCS Maoists not only because he applied But plaintiff divorced his 202-353-9923 because he was a for naturalization wife while his naturaliza- successful busi- only three years tion application was pen- Northern District Of Illinois Dis- nessman, but also ding. misses APA And Constitutional on account of his after becoming a Claims For Lack Of Jurisdiction family's political lawful permanent Thus, the court held, opinions, which he resident. as a result of the divorce, In Akram v. Napolitano, No. 10- claimed should be the five-year residency cv-1415 (N.D. Ill. October 27, 2010) imputed to him. requirement for naturalization applied (Holderman, C.J.), the district court to plaintiff, and plaintiff could not meet dismissed the alien’s action alleging Preliminarily, the court deferred that requirement because he applied claims under the Administrative Proce- to the BIA’s interpretation in Matter of for naturalization only three years after dure Act, the Due Process Clause, and J-B-N &S-M-, 24 I&N Dec. 208 (BIA becoming a lawful permanent resi- the Equal Protection Clause. The alien 2007), that the one central reason for dent. Therefore, the court held that asked the court to: (1) declare her eli- the persecution must be on account plaintiff was ineligible for naturaliza- gible to adjust her status to legal per- of the five protected grounds. The tion. manent resident; (2) declare that the court then held that the record con- adjustment of status regulation, as it tained scant and inconsistent testimo- Contact: Craig A. Defoe, OIL DCS relates to certain visa holders, is ultra ny about petitioner’s political opinion, 202-532-4114 vires to the adjustment statute; and and thus lacked the compelling evi- (3) declare that the same regulation dence required to overturn the BIA’s District Court For Northern Maria- violates the Equal Protection Clause. finding that the Maoists’ threats were na Islands Holds Aliens’ Presence In motivated by petitioner’s ability to CNMI Did Not Count Toward The Resi- The court held that it lacked juris- supply needed financial resources. dency And Physical Presence Requi- diction because, after the alien filed rements For Naturalization her complaint, the immigration court The court also ruled that the BIA ordered her removed. Because of the did not abuse its discretion in denying In Eche v. Holder, __ F. Supp. 2d removal order, the court concluded petitioner’s request for a remand be- __, 2010 WL 3911274 No. 1:10-cv- that it lacked jurisdiction pursuant to cause the new evidence was cumula- 00013 (D. N. Mar. I. October 7, 2010) the Immigration and Nationality Act, tive and/or insufficient to require a (Pro, J), the district court granted the which states that a petition for review remand. government’s motion for summary filed in the court of appeals is “the judgment, holding that the alien’s resi- sole and exclusive means for judicial Contact: Remi Adalemo, OIL dence in the Commonwealth of the review of an order of removal.” 202-305-7386 Northern Mariana Islands (CNMI) prior to the effective date of the Consolida- Contact: Kate Goettel,OIL-DCS ted Natural Resources Act of 2008 202-532-4115

10 October 2010 Immigration Litigation Bulletin This Month’s Topical Parentheticals States and is thus ineligible for adjust- 120.5 grams of marijuana constitutes ASYLUM ment; finding that substantial evi- an “aggravated felony” under the dence supported BIA’s determination modified categorical approach be- Toure v. Holder, __ F.3d __, 2010 that petitioner accepted the opportu- cause it did not fall within the excep- WL 3928694 (7th Cir. Oct. 8, 2010) nity to withdraw his application for tion established by 21 U.S.C. § 841(b) (affirming denial of asylum application admission and depart voluntarily in (4) for distributing a “small amount of based on violence in Congo where lieu of being placed in removal pro- marijuana for no renumeration”) petitioner failed to establish a nexus ceedings, and accordingly his continu- between the attacks and her “racial ous physical presence was inter- Bianco v. Holder, __ F. 3d __, background” or political views (or rupted for purposes of cancellation of 2010 WL 4069531 (5th Cir. Oct. 19, those of her family), and where peti- removal) 2010) (holding that under 8 U.S.C. § tioner’s testimony was “replete with 1227(a), a crime of domestic violence material inconsistencies”) CAT need not have as an element the do- mestic relation of the victim to the Dallakoti v. Holder, __ F.3d __, Edu v. Holder, __ F.3d __, 2010 defendant, and that the government, 2010 WL 3860994 (10th Cir. Oct. 5, WL __ (9th Cir. Oct. 26, 2010) having the burden to prove the do- 2010) (finding that substantial evi- (holding that the BIA erred in finding mestic relationship by clear and con- dence supported BIA’s determination that petitioner, a citizen of Nigeria, vincing evidence, may rely on the kind that petitioner failed to establish that was not entitled to CAT protection of evidence generally admissible be- a central reason why Maoists targeted because she could have avoided tor- fore an IJ, including a probable cause him was because of his or his family’s ture by refraining from political activ- affidavit and the criminal complaint) political beliefs rather than his ability ity) to provide them with needed financial Wellington v. Holder, __ F.3d __, resources) CRIMES 2010 WL 4103759 (2nd Cir. Oct. 20, 2010) (holding that an alien who re- ADJUSTMENT - CANCELLATION Cortez-Guillen v. Holder, __ F.3d ceives state rehabilitative treatment __, 2010 WL ___ (9th Cir. Oct. 5, for a removable offense remains Pena-Beltre v. Holder, __ F.3d __, 2010) (holding that a conviction un- “convicted” of that offense even if the 2010 WL 3991694 (1st Cir. Oct. 13 der the Alaska “coercion” statute is alien would have been eligible for re- 2010) (affirming IJ’s and BIA’s finding not categorically a “crime of violence” lief under the Federal First Offender that petitioner failed to establish that because it criminalizes conduct that is Act had she been prosecuted in fed- his marriage to a U.S. citizen was broader than the federal definition) eral court) made in good faith given the “overwhelming” evidence of marriage Cheng v. Att’y Gen. of the United Covarrubias v. Holder, __ F. 3d __, fraud, including prior admissions by States, __ F. 3d __, 2010 WL 2010 WL ___ (9th Cir. Oct. 26, 2010) both spouses that the marriage was 3896198 (3d Cir. Oct. 6, 2010) (holding that the offense of shooting entered into for immigration pur- (holding that the BIA’s interpretation at an inhabited dwelling or vehicle in poses) of the statutory term “sterilization” is violation of Cal. Pen. Code § 242 is entitled to deference, and rejecting not categorically a crime of violence Matter of Al Wazzan, 25 I.&N. Dec. petitioner’s argument that insertion of because it merely requires a mens 359 (BIA Oct. 20, 2010) (holding that, an IUD constitutes persecution per se; rea of recklessness, and therefore although section 204(j) of the INA concluding, however, that the BIA’s does not, by its nature, involve a sub- provides that an employment-based analysis of whether petitioner suf- stantial risk of physical force against immigrant visa petition shall remain fered persecution based on “other the person or property of another) valid with respect to a new job if the resistance” to China’s family planning beneficiary’s application for adjust- policies failed to take into account Matter of Gruenangerl, 25 I.&N. ment of status has been filed and several acts of mistreatment, includ- Dec. 351 (BIA Oct. 15, 2010) (holding remained unadjudicated for 180 ing severe economic sanctions, that that the crime of bribery of a public days, the petition must have been were linked to petitioner’s resistance) official in violation of 18 U.S.C. § 201 “valid” to begin with if it is to “remain (Judge Roth concurred) (b)(1)(A) is not an offense “relating to” valid with respect to a new job”). commercial bribery and is therefore Catwell v. Att’y Gen. of the United not an aggravated felony under 8 Valadez-Munoz v. Holder, __ F.3d States, __ F. 3d __, 2010 WL U.S.C. § 1101(a)(43)(R)). __, 2010 WL ___ (9th Cir. Oct. 28, 3987664 (3d Cir. Oct. 13, 2010) 2010) (upholding BIA’s determination (holding that petitioner’s 2003 Penn- Mendoza v. Holder, __ F.3d __, that petitioner falsely represented sylvania conviction for possession 2010 WL ___ (9th Cir. Oct. 27, 2010) himself to be a citizen of the United with intent to deliver or manufacture (Continued on page 12)

11 October 2010 Immigration Litigation Bulletin This Month’s Topical Parentheticals

(Continued from page 11) establish changed circumstances presence requirement for a lawful (holding that the BIA’s determination where the BIA reasonably assigned permanent resident to naturalize, but that robbery under Cal. Pen. Code § little weight to the new evidence – a rather constituted an absence from 211 is a crime involving moral turpi- village committee notice – because it the United States which disrupted the tude is entitled to deference as it is was unauthenticated and petitioner continuous residence requirement) consistent with its own precedent and had been found not credible in the that of the Ninth Circuit finding that underlying proceedings; further find- Matter of Chawathe, 25 I.&N. Dec. theft crimes are CIMTs) ing that the BIA properly denied re- 369 (AAO Oct. 20, 2010) (holding opening because petitioner never es- that, for purposes of establishing the JURISDICTION tablished a credible asylum claim requisite residence in naturalization based on his practice of Falun Gong) proceedings pursuant to section 316 Ahmed v. Holder, __ F.3d __, 2010 (b) of the INA, a publicly held corpora- WL ___ (2d Cir. Oct. 27, 2010) Ramos-Olivieri v. Att’g Gen. of tion may be deemed an “American (holding that court lacks jurisdiction United States, __ F.3d __, 2010 WL firm or corporation” if the applicant under section 242(a)(2)(B)(ii) to re- 3610185 (3d Cir. Sept. 17, 2010) establishes that the corporation is view the BIA’s discretionary denial of (designated as published decision both incorporated in the United States a waiver of inadmissibility under INA § Oct. 22, 2010) (holding that BIA acted and trades its stock exclusively on 237(a)(1)(H), and that the BIA did not within its discretion in denying MTR by U.S. stock markets) abuse its discretion in denying peti- alien who had been ordered removed tioner’s equitable estoppel claim in absentia and then subsequently TPS where petitioner’s testimony on this married naturalized citizen, where issue was inconsistent) alien made no affirmative efforts to De Leon-Ochoa v. Att’y Gen. of update his address despite being in- United States, __ F.3d __, 2010 WL Thomas v. Att’y Gen. of the United formed of this obligation, alien had 3817082 (3d Cir. Oct. 1, 2010) States, __ F.3d __, 2010 WL __ (3d incentive to avoid removal hearing, (holding that, for purposes of the con- Cir. Oct. 26, 2010) (holding that the and alien did not make any arrange- tinuous residence requirement for BIA’s grant of a motion to reconsider ments for forwarding his mail) TPS, the residence of petitioners’ par- did not moot a pending PFR where the ents could not be imputed to petition- new BIA decision did not vacate or NATURALIZATION ers, and that the statutory term “most materially alter the original decision) recent designation” applies to the Eche v. Holder, __ F. Supp.2d __, original designation of a country for Pawlowska v. Holder, __ F.3d __, 2010 WL 3911274 (D.N. Mar. I Oct. TPS and not to subsequent exten- 2010 WL 4137567 (7th Cir. Oct. 22 7, 2010) (affirming CIS’ denial of sions) 2010) (finding that court lacks juris- naturalization applications because diction under section 242(a)(2)(B)(i) plaintiffs’ residence in the CNMI did to review the IJ’s continuance denial not count for purposes of the physical where such denial is “ancillary to an adjustment of status application,” and was based on the IJ’s determination that he would ultimately deny adjust- TPS Extended for Somalia ment as a matter of discretion)

Rodriguez-Barajas v. Holder, __ DHS has announced that it will tions that prompted the 2001 TPS re F.3d __, 2010 WL 4075078 (5th Cir. extend TPS for eligible nationals of -designation of Somalia continue, Oct. 19 2010) (holding that the depar- ture bar at 8 C.F.R. § 1003.4 does not Somalia from the current expiration and the return of individuals with apply to withdraw an appeal to the BIA of March 17, 2011, through the new TPS to Somalia would pose a serious where petitioner departed the country expiration date of Sept. 17, 2012. threat to their personal safety. after the BIA issued a decision on his During the past year, DHS and the appeal, but while his habeas petition Department of State have reviewed Under the extension, individuals was pending) the conditions in Somalia. who have been granted TPS are eligi-

ble to re-register and maintain their MTR Based on this review, Homeland status for an additional 18 months. . Zhu v. Holder, __ F.3d __, 2010 Security Secretary Napolitano has TPS does not apply to Somali nation- WL 4010125 (1st Cir. Oct. 14, 2010) determined that an 18-month exten- als who first entered the United (affirming denial of MTR for failure to sion is necessary because condi- States after Sept. 4, 2001.

12 October 2010 Immigration Litigation Bulletin AAG Tony West’s Remarks at 14th Annual Immigration Conference

(Continued from page 1) First, we must continue the work consistent and open communication significant area of policy and law, we've already begun in ensuring that among our federal partners charged from national security to the right to our expertise in immigration matters, with the responsibility of enforcing our competent counsel. both within the Department of Justice immigration laws with the intent of and throughout the federal govern- focusing our enforcement efforts in Your cases are often at the cen- ment, is shared broadly with other ways that will maximize the impact of ter of national conversations about practitioners and policymakers, to our work. Toward that end, we've de- immigration reform and enforcement help us pursue the best cases and veloped stronger ties between DHS priorities; and the work you do helps achieve the right results. and OIL over the past 16 months, to shape the contours of these criti- holding regular leadership meetings cally important, often contentious To help achieve that, we've to consult a variety of issues, from debates. So I want to thank you for launched an effort within the DOJ that enforcement priorities to regulatory your service. encourages lawyers from the Civil and fixes to litigation strategy. A recurring Criminal Divisions, as well as EOUSA theme in these meetings is how best I also want to recognize the lead- and the U.S. Attorneys Offices, to coor- to focus our work in OIL and DHS on ership of Thorn Hussey and Dave dinate early in the life of an immigra- the enforcement priorities as articu- Kline. Both of these men have served tion matter so that the lated by the President, under some of the most trying, most best thinking can be Our continued the Attorney General difficult circumstances faced by the brought to bear on issues success in fulfilling and the Secretary of Department of Justice. They have had of common concern. our mission requires Homeland Security. to respond to shifting policy priorities We've also encouraged and competing demands. And they AUSAs and other federal clear, consistent and Our recent litiga- have had to build capacity and exper- attorneys to consult with open communication tion against the State tise in appellate advocacy, national experienced lawyers in the among our federal of Arizona, for in- security, and a whole host of other Civil and Criminal Divi- partners charged stance, is the result of disciplines as our responsibilities in sions in Main Justice with the responsibil- collaborative commu- immigration matters have expanded. when they face unique, ity of enforcing our nication between DHS I am grateful to have had their coun- challenging, or cross- and DOJ, where we are sel during my sixteen months in this cutting issues. immigration laws. seeking to ensure the job and OIL is fortunate to have them effective enforcement at the helm. Because our DOJ OIL lawyers of our national immigration laws in a regularly deal with a variety of issues manner that is consistent with federal And because of their leadership in immigration matters throughout the immigration policies, practices, and and the work that many of you are country, they are a useful resource priorities. And focusing on enforce- doing, OIL is continually getting better. and a conversation with one of them ment priorities is essential. As a fed- I hear it from the appellate judges can save an attorney grappling with a eral prosecutor, I learned early on that with whom I speak who tell me they difficult issue hours of research. if you want to have a significant im- have seen the quality of immigration- pact on making a community safer, related cases and advocacy improve; I We're also offering more cross- you go after the worst offenders –– see it in the over 91% win rate our training opportunities such as this that relatively small population of lawyers achieve in their cases; and I conference and providing more valu- hardcore, often repeat criminals who hear it from our federal partners like able training tools –– from mono- are responsible for a majority of the DHS, with whom we are enjoying regu- graphs to email listservs and intranet- crime. lar, collaborative communication as based groups –– all designed to help we work toward the common goal of you stay on top of the latest develop- We face a similar challenge in fulfilling our enforcement mission of ments in the law and to help you iden- our civil immigration enforcement securing our nation's borders. tify trends that indicate where the law efforts. Faced with the reality that our is going. All of these efforts are de- colleagues at ICE only have resources So as we kick off this confer- signed to make the best use of the to remove less than 4% of the nearly ence, I'd like to take a few moments talent and expertise we've developed 11 million illegal aliens living in the to share my own perspective on what I in immigration law –– talent that you United States today, we must direct believe it will take to ensure that we in this room represent and will rein- our enforcement efforts toward those continue to serve the American peo- force by working with and consulting activities where they will make the ple to the best of our abilities as attor- one another. biggest difference and reap the great- neys engaged in the often difficult and est benefit: such as pursuing aliens complicated practice of immigration Second, our continued success who pose a threat to public safety or law and policy. in fulfilling our mission requires clear, (Continued on page 14)

13 October 2010 Immigration Litigation Bulletin

U.S. forces in Iraq and had received AAG Tony West’s Remarks numerous commendations from sen- ior Department of Defense officials for (Continued from page 13) penalties allowable under the law. national security; targeting recent And sometimes that meant deferring his assistance to our troops. That illegal entrants and fugitive aliens, prosecution or advocating remand of closer reexamination led to the alien's particularly those who are being a matter for reconsideration or some- status being readjusted and the litiga- sought by law enforcement in connec- times even admitting government tion dismissed as moot. tion with other crimes; and directing error. our detention resources away from Or the recent case involving an aliens who are disabled, elderly, preg- And now, I ask the same of each alien who is a native of Haiti and the nant or nursing. of you. You will have matters that will mother of six. She sought asylum require you to strike hard but fair based on three instances in which she DHS Assistant Secretary John blows, to seek every contends she was Morton has explained these in more available sanction to beaten and raped by You will have mat- government-affiliated detail in a recent memorandum outlin- advance our enforce- ters that will require ing ICE's civil enforcement priorities, ment priorities and our gangs because of her but this is not ICE's responsibility enforcement mission. you to strike hard husband's political ac- alone. And you will also see but fair blows, to tivities. Although the cases that will require seek every available ultimate agency finding This brings me to the third way I you to exercise the judg- sanction to advance rested on an adverse believe we can ensure we are serving ment of public servants credibility finding, the our enforcement Immigration Judge who the American people to the best of who strive not only to priorities and our our abilities. In addition to better, win cases but also to do heard the matter stated more comprehensive training and justice. Cases that will enforcement in his decision that he consistent, clear communication with require you to consider mission. was convinced the alien our federal partners about our en- remand according to the "suffered horrific physi- forcement priorities, efficient and ef- criteria outlined in Thom Hussey's cal violence" based on the evidence fective deployment of our limited re- remand guidance memo-criteria such he heard. OIL attorneys appropriately sources requires all of us –– DHS and as humanitarian concerns. Or cases remanded to allow the agency to re- DOJ officials alike –– to look at every that will require you to consider the consider whether, in light of these case we handle as a opportunity to difficult but necessary question of comments, the alien satisfied her bur- fulfill our highest duty: our duty to jus- whether it makes sense to pursue den of proof. And in so many ways, tice. removal in a particular case when the you are also focusing on pursuing likelihood is that the alien will never, those cases that fall squarely within I've often recounted the experi- in fact, be removed when all is said our enforcement priorities and fulfill ence I had as a young Main Justice and done. our enforcement mission. attorney in the early 90's. Now, the fact is, you are already Last year, for example, OIL attor- I was a special assistant in the doing this. neys secured an important Ninth Cir- Deputy Attorney General's office back cuit victory when the removal order then and had had the good fortune to When justice requires that cases concerning a fundraiser for the do much of my work for then Attorney be reexamined, you have stood up to Jammu and Kashmir Liberation Front General Janet Reno. And just before I fulfill that duty. In a recent important was upheld. This was an important left Washington to begin work as an case involving the failure to adjudi- victory whereby we persuaded the AUSA in the Northern District of Cali- cate an alien's adjustment application court to reject several of the alien's fornia, where I'm from, Ms. Reno in- –– a situation that can lead to years claims that ran the spectrum from, he sisted on meeting with me, one-on- of limbo for an alien seeking legal had ceased his involvement in the one. And during that meeting, she status –– OIL attorneys worked with organization years before, to his showed me the inscription in the walls our colleagues from USCIS and the claims that he did not know the or- just outside her private office, which U.S. Attorney's Office to obtain an ex- ganization was involved in terrorist reads, and I'm paraphrasing: The Gov- emption for an Iraqi alien. activities, to his contention that the ernment wins its case when justice is organization was not terrorist because done. And she told me then that my Because of this alien's previous its cause was just and its attacks role as a prosecutor was not merely activities in Iraq, he was subject to the comported with the international law that of an advocate seeking to win as terrorism-related inadmissibility bar. of armed conflict. many cases as I possibly could, but But working together to take a closer that my primary job was to do justice look at the matter, DOJ and USCIS Or another case involving the in every case I handled. Sometimes attorneys found that this alien had removal of a resident alien who left that meant pursuing the most severe actually served as an interpreter for (Continued on page 15)

14 October 2010 Immigration Litigation Bulletin AAG Tony West’s Remarks INDEX TO CASES SUMMARIZED IN THIS ISSUE

(Continued from page 14) balance. Because I learned long ago, the U.S. in 1993 to live in a Palestin- early in my career as a lawyer, what ian refugee camp in Lebanon. dedicated public servants you, fed- Akram v. Napolitano………………… 10 eral career employees, truly are. Alenazi v. USCIS………………………. 10 Following his return to the U.S. in Bianco v. Holder………………………. 08 2007, the Lebanese sought his extra- Because you know that it Catwell v. Holder……………………… 07 dition based on his bomb-making ac- strengthens our enforcement mis- Cortez-Guillen v. Holder……………. 09 tivities for the Popular Front for the sion when we focus on cases that Dallakoti v. Holder…………………… 10 Liberation of Palestine. Although we will result in removal rather than De Leo-Ochoa v. Holder……………. 07 have no extradition treaty with Leba- those that will not. You know it Eche v. Holder…………………………. 10 non, OIL attorneys successfully per- strengthens our legal arsenal when Edu v. Holder…………………………… 09 suaded the Third Circuit to affirm his we pursue cases that will help us Fei Mei Cheng v. U.S. Attorney….. 01 removal order which led to the alien's build solid precedent as opposed to Le Bin Zhu v. Holder………………… 06 removal by ICE last May. weaker cases that may create bad Pawlowska v. Holder……………….. 09 law that may hinder our enforcement Pena-Beltre v. Holder……………….. 06 Now I know making the right efforts. You know it strengthens our Ramos-Olivieri v. Holder……………. 08 calls in these cases is not often easy credibility with the bench and the Rodriguez-Barajasv. Holder……….. 08 or always obvious. public when we press forward on Toure v. Holder…………………………. 09 cases that reinforce faith in our abil- Wellington v. Holder…………………. 06 These cases do not tend to fall ity to reasonably and appropriately neatly into pre-labeled buckets. And I exercise discretion. know that, many times, there will be disagreement as to how certain cases We may not always be right, but should proceed, among agencies and I know you will always seek to do even among attorneys within the DOJ. right. And in that endeavor I will NOTED: USCIS Holds First But I also know that there is no group back you; I will stand with you; and Military Naturalization Cere- who is better-trained, better-equipped together, we will do our best to fulfill mony on Kandahar Airfield in or better-poised than you to grapple the promise of the oath we've taken, with these hard cases, to debate the and our duty to the American people. Afghanistan facts and alternatives each case pre- sents, and, in the end, to make the Thank you very much. For the first time since U.S. mili- right judgments and strike the right tary forces deployed to Afghanistan for Operation Enduring Freedom, 88 sol- diers, sailors, airmen and Marines from 37 countries became citizens of Violation of regulations: No, harm, no foul the United States during a special naturalization ceremony on the Kan- (Continued from page 4) ing the orderly transaction of busi- dahar Airfield on Oct. 1, 2010. Before ful than others, to strike a balance ness) in order to tailor arguments to now, all naturalization ceremonies in that upholds substantive rights and the test applied in their circuit. Lack Afghanistan have been held on the important procedural safeguards that of prejudice or, equally important, a U.S. military airfield in Bagram. inure to the benefit of individuals ap- lack of nexus between the underly- pearing before administrative agen- ing purpose of the regulation and Keeping with USCIS commitment cies, while not paralyzing already- the harm its violation allegedly to “bring immigration services to the overburdened agencies with draco- caused, are also compelling argu- troops wherever they serve,” a three- nian punishment when agency offi- ments, where appropriate, for up- member team from the USCIS Bang- cials violate more technical require- holding agency action. kok District Office traveled to Kanda- ments. har to complete the naturalization By Julia Tyler, OIL process and hold the ceremony close Government litigators confront- 202-353-1762 to the battlefields where the American ing these issues must carefully ana- forces serve. lyze the regulation that was allegedly violated, its genesis (grounded in the Since 2004, when the overseas Constitution or federal law v. agency- Contributions to the naturalization program began, USCIS created) and purpose in the regulatory Immigration Litigation Bulletin has naturalized 583 members of the scheme (conferring important proce- Are Welcomed U.S. military deployed in Afghanistan. dural benefits to the alien v. promot- 15 October 2010 Immigration Litigation Bulletin

INSIDE OIL OIL welcomes Geoff Forney from the agency’s legislative rulemak- Chief Counsel in Denver. She is a District Court Section. In September ing. Prior to joining OIL, Geoff prac- 2003 graduate of Oklahoma State 2008, Geoff joined the District Court ticed immigration law in Philadelphia University and received her J.D. from Section where he litigated employ- where he focused on employment- American University in 2006. Follow- ment-based immigration issues un- based immigrant and nonimmigrant ing law school, Corey was a trial attor- der the Administrative Procedure issues, labor certification, and re- ney at OIL for several years before Act, and defended the Department moval defense. joining DHS. Welcome back Corey! of Labor against challenges to the Corey Farrell recently returned to OIL OIL celebrated Halloween by inviting after working for ICE as an Assistant the children of all OIL employees to trick-or-treat at the Liberty Square Bldg.

Corey Farrell, Geoff Forney Kamiah Miller (7 years old), daughter of OIL secretary Krystle McLaughlin.

The Immigration Litigation Bulletin is a monthly publication of the Office of Im- migration Litigation, Civil Division, U.S. Tony West Department of Justice. This publication Assistant Attorney General is intended to keep litigating attorneys William H. Orrick, III within the Departments of Justice and Homeland Security informed about Deputy Assistant Attorney General immigration litigation matters and to Civil Division increase the sharing of information between the field offices and Main “To defend and preserve Thomas W. Hussey, Director Justice. the Executive’s David M. McConnell, Deputy Director Donald E. Keener, Deputy Director Please note that the views expressed in authority to administer the Office of Immigration Litigation this publication do not necessarily Immigration and Nationality represent the views of this Office or laws of the United States” Francesco Isgrò, Senior Litigation Counsel those of the United States Department Editor of Justice. If you would like to receive the Immigration Tim Ramnitz, Attorney If you have any suggestions, or would Litigation Bulletin electronically send your Assistant Editor like to submit a short article, please email address to: contact Francesco Isgrò at 202-616- [email protected] Linda Purvin 4877 or at [email protected]. Circulation

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