The BIA reviewed the findings of fact made by the IJ, including findings as to the credibility of testimony, to determine whether they are “clearly erroneous,” and the BIA reviews de novo all questions of law, discretion, and judgment, including whether the parties have met their relevant burden of proof.
Where the respondent did not meaningfully contest their inadmissibility under INA Section 212(a)(9)(C)(i)(I), and where the respondents did not challenge the IJ’s finding that they first entered the U.S. without inspection in 1998 and departed the U.S. on October 1, 2000, and then re-entered the U.S. on November 1, 2000, the BIA concluded each respondent is inadmissible under INA Section 212(a)(9)(C)(i)(I) as an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year and who entered the United States without being admitted.
Both the Second Circuit in Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008), and the Sixth Circuit in Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. 2008), have held that because the BIA analyzed and interpreted the ambiguous provisions of the immigration laws reasonably in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), Chevron deference should be accorded to the BIA’s conclusion that an alien who is determined to be inadmissible under INA Section 212(a)(9)(C)(i)(I) is ineligible to adjust status under INA Section 245(i). Furthermore, the Seventh Circuit recently noted in Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009) that there was sufficient ambiguity between sections 212(a)(9)(C)(i)(I) and 245(i) to require Chevron deference and that it would find that the BIA has drawn a rational line.
Where the Ninth Circuit decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) which held that an alien who is inadmissible under INA Section 212(a)(9)(C)(i)(I) is eligible to apply for adjustment of status under INA Section 245(i) was constrained by its prior decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), and where Perez-Gonzalez was overruled by the Ninth Circuit in Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) after granting Chevron deference to the BIA’s decision in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), which rejected the analysis in Perez-Gonzalez, the Ninth Circuit recognized that Perez-Gonzalez was premised on the existence of ambiguity in the interplay between the inadmissibility and adjustment of status provisions and that the BIA’s interpretation of these ambiguous statutes in Matter of Torres-Garcia was reasonable. Therefore, in light of the BIA’s subsequently issued decision in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) and the Ninth Circuit’s decision in Gonzales to overrule Perez-Gonzalez, neither the IJ nor the BIA remains bound by the Ninth Circuit’s decision in Acosta. The analysis of Matter of Briones is therefore applicable, and the IJ properly found the respondents ineligible for adjustment of status under INA Section 245(i). Accordingly, the respondents’ appeal will be dismissed.
.
Friday, January 29, 2010
Tuesday, January 26, 2010
Bayo v. Napolitano, No.07-1069 (7th Cir. Jan. 20, 2010).
Questions presented: First, may an alien who is not eligible for the VWP, but who enters using fraudulent documents that trigger use of the VWP, be held to the terms of the VWP waiver? Second, what is the standard for the waiver of the procedural rights that are covered by the VWP? Third, assuming a valid VWP waiver, does an alien who entered under the VWP and then overstayed have an independent right to adjust his status on the basis of marriage to a United States citizen?
The Visa Waiver Pilot Program was established by Congress to determine if a visa waiver provision could facilitate international travel and promote the more effective use of the resources of affected government agencies. Only citizens of VWP countries may participate in the Program, and just 35 countries currently qualify. The VWP operates through a reciprocal waiver arrangement: the United States waives its visa requirement, and in exchange, the visitor waives her right to contest admissibility determinations or removal (except for asylum). VWP entrants are also treated differently, and perhaps more favorably, when they apply for asylum, because they are entitled to bypass the credible-fear process and proceed directly to an IJ. The terms of the VWP were memorialized in Form I-94W, which had to be filled out and signed by all VWP entrants upon their arrival in the United States. It describes the visitor’s waiver of rights, including any rights to review or appeal of an immigration officer’s determination as to admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation. The Form further elaborates on the conditions that apply to the visitor’s sojourn in the United States, including not to accept unauthorized employment or attend school, or represent the foreign information media during the VWP entrant’s visit under this program. The VWP entrant is authorized to stay in the U.S. for 90 days or less, but may not apply for: 1) a change of nonimmigrant status; 2) adjustment of status to temporary or permanent resident, unless eligible under section 201(b) of the INA; or 3) an extension of stay. Violation of these terms will subject the VWP entrant to deportation.
The scope of this court’s review is narrow, but 8 U.S.C. § 1252 confers authority on the courts of appeals to review VWP decisions, among others.
This court must reject the contention of the petitioner from Guinea who entered the U.S. under VWP with a stolen Belgium passport and overstayed the 90-day period that statutory silence on nationals of non-VWP countries infers that the VWP is entirely inapplicable to them, and that he cannot be held to the terms of a VWP waiver that never should have been before him in the first place and must therefore be subject to ordinary removal procedures. Silence might signify something about the scope of a statute, but it equally might highlight an issue that Congress did not anticipate or that it chose to leave open. It is under these circumstances that Congress has implicitly delegated authority to the relevant agency to resolve the issue. The Attorney General appropriately has acted to clarify the scope of the VWP as it pertains to certain abuses of the program, insofar as the VWP regulations address the situation of ineligible aliens entering fraudulently under the VWP. The BIA also has interpreted the regulations to apply to VWP-ineligible aliens.
In assessing the VWP regulations, the first question is whether this court finds the statute ambiguous, and it does. The fact that it says nothing about nationals of non-VWP countries creates the ambiguity that drives both the petitioner’s and the government’s arguments. The VWP regulations answer that ambiguity by applying the terms of the program to those who enter under the VWP, even if they are ineligible for it. This court’s only task under Chevron is to determine whether the Attorney General’s interpretation, as expressed in the VWP regulations, is reasonable. This court finds that it is. There is little reason to think that Congress would have wanted to confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the Program. This court says this in full recognition of the fact that applying the terms of the VWP to ineligible aliens may also confer on them the possible benefit in asylum cases of being able to skip the credible-fear interview and proceed directly to an IJ. But the fact that there may be some benefits to the ineligible aliens as well as burdens simply means that the Attorney General had to balance several factors in the course of interpreting the statute. He was entitled, in doing so, to adopt an approach that preserves the government’s ability to remove aliens who fraudulently enter under the VWP just as promptly as it can remove legitimate VWP entrants. This is in line with earlier decisions. This court has dismissed attempts by aliens to take control of their removal proceedings for overstay by pleading fraud. This court has also safeguarded the government’s ability to select the ground on which to remove aliens who are in the U.S. illegally. The government in this case was therefore entitled to select overstay under the terms of the VWP as the ground for removing the petitioner.
Immigration law draws a bright line between an alien who has effected an entry into the United States and one who has never entered. This court acknowledges that those who stand at the threshold of admission are subject to special rules. Where the parties do not dispute that the petitioner has entered the U.S., the “entry fiction” doctrine does not apply to him. Once he crossed the border, the petitioner became entitled to certain constitutional rights, including the right to due process.
If the VWP waiver were a garden-variety contract, the petitioner’s argument that he did not understand it would almost certainly fail. The VWP waiver, however, is no normal contract. It includes a waiver of the right to a full immigration hearing; that waiver implicates both statutory rights and, in the final analysis, the constitutional right to due process. In criminal cases, courts both indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. The Supreme Court also has established constitutional standards for waivers of constitutional rights in civil cases. While the Supreme Court has consistently classified deportation proceedings as civil rather than criminal, at the same time the Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. This court concludes from this that the waiver standard in immigration cases, while perhaps not quite as strict as the one applicable to criminal cases must reflect the Supreme Court’s recognition of the unique character of this area.
This court has in the past assumed that a VWP waiver is valid only if it was done knowingly and voluntarily. The government would have us depart from that understanding, substituting a presumption of knowledge for the requirement of actual knowledge. But this would have the practical effect of eliminating the knowledge requirement altogether—a path this court declines to follow for a host of reasons. First, this court does not feel free to abandon the presumption against waiver of constitutional rights, nor does this court think that such a step would be advisable. Second, both the concepts of waiver and the presumption of knowledge of the law are ubiquitous in our legal system; defining their interaction so as to eliminate the knowledge requirement for a valid waiver of constitutional rights would change the law in various contexts not at issue here. Third, adopting a standard that rests solely on voluntariness would lead to absurd results, as it would render all waivers of constitutional rights signed without coercion valid, regardless of whether the signatory understood a single word on the page. As amici point out, this would have a particularly detrimental effect on victims of human trafficking, who often come from VWP countries. These aliens frequently enter the country voluntarily (hoping for employment but often finding hard labor or prostitution) and sign whatever forms that their traffickers put in front of them, without understanding the language on the form. Enforcing the terms of the VWP waiver against the victims of human trafficking (when they signed without knowledge) would prevent them from accessing T and U visas. To render these provisions inoperative in this way would contravene congressional intent to provide relief to those who have been trafficked. In sum, this court declines to pursue such a radical departure from established law.
The only other circuit that has considered this issue, the Fifth Circuit, came to the same conclusion. The government’s contention that were this court to adopt the approach of assuming that a VWP waiver is valid only if it was done knowingly and voluntarily it would raise the specter of endless litigation is without merit. The government has failed to produce any evidence that this standard has proven unworkable in the Fifth Circuit. This is not for want of time to test the standard, which has been around for more than 15 years. Nor is it because the Fifth Circuit lacks experience with immigration, as Houston is a large port of entry and Texas is a popular destination for nonresident nonimmigrants. Perhaps most telling is the fact that the Fifth Circuit itself has not found it necessary to change its standard in response to overwhelming litigation or other concerns. This court therefore holds that an alien’s waiver through the VWP of the due process rights to which he or she would otherwise be entitled must be done both knowingly and voluntarily. That said, there are a few additional points that must be clarified. Just as this court is not inclined to endorse a sea change in the law of waiver, it also does not wish to disturb the understanding that the government is entitled to assume that people know the law. That means, importantly, that immigration officials are under no obligation to provide any form of legal advice to incoming immigrants. This court also expresses no opinion on the procedures the government should adopt in order to ensure that waivers of constitutional rights occur knowingly and voluntarily with respect to language proficiency. Going forward, it seems likely to this court that this problem has largely been solved, as the ESTA website allows the traveler to select for the VWP waiver one of 21 languages, presumably those that are spoken in the 35 VWP countries. For a person already here who did not have the ESTA available to her, there are a variety of methods that could be used to adjudicate a claim contesting the knowing and voluntary nature of her waiver, and it is not this court’s role to prescribe any particular system. This court trusts the executive branch to devise a system that fulfills the goals of fairness, efficiency, and security.
The dicta in The Japanese Immigrant Case, 189 U.S. 86 (1903) is inapplicable to the instant case where the petitioner from Guinea entered the U.S. under VWP with a stolen Belgium passport and overstayed the 90-day period. First, unlike The Japanese Immigrant Case, this court has jurisdiction to review the petitioner’s final orders of removal and the government does not dispute this. Second, the alien in Japanese Immigrant was asserting that her lack of knowledge of English (and her other disabilities) entitled her to a broader scope of judicial review than the statute afforded. The petitioner in the instant case is not claiming that his asserted lack of command of the English language alters the scope of judicial review. Instead, the question is whether he may raise certain arguments in a proceeding authorized by the governing statute. Properly in court, he is entitled to raise as one of his arguments whether, for any reason (including but not limited to language problems) his VWP waiver was unknowing and therefore invalid. Finally, the government also does not allege that the petitioner has failed to exhaust other available remedies provided by the executive branch. Based on these distinctions, The Japanese Immigrant Case is therefore inapplicable in the instant case.
To warrant a new immigration hearing on a due process claim, an alien must establish that she was prejudiced, that is, that the error likely affected the result of the proceedings. Inability to show prejudice is where the petitioner’s case founders. Had he known what the waiver said, the petitioner would have had two options, either of which would have led to summary removal. If he had signed the waiver anyway, knowing full well what it said, he would be in the same situation as he is now. If he had refused to sign, he would have been removed summarily at the border because he did not have a proper visa. Perhaps there is a slight chance that after removal, the petitioner could have obtained a visa to come to the United States, and then he might have settled in Indiana, met his wife, and married her, allowing him to adjust his status based on marriage at that time. As the petitioner admits in his brief though, it is difficult to compare what might have been with what is. This is true, and it is the reason why this court finds the explanation of how the petitioner might have been harmed too speculative to support a showing of prejudice. This
dooms the petitioner’s language proficiency argument as a basis for his petition.
At first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255(c)(4), and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer examination, however, this court believes that they can be reconciled. During the time when a nonimmigrant visitor is within the VWP’s 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays her 90-day visit, however, the effect of the VWP waiver kicks in preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed. The petitioner filed his application for adjustment of status long after his 90 days were up. As a result, his adjustment-of-status application is barred by his valid VWP waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place. This court therefore denies the petition for review.
The Visa Waiver Pilot Program was established by Congress to determine if a visa waiver provision could facilitate international travel and promote the more effective use of the resources of affected government agencies. Only citizens of VWP countries may participate in the Program, and just 35 countries currently qualify. The VWP operates through a reciprocal waiver arrangement: the United States waives its visa requirement, and in exchange, the visitor waives her right to contest admissibility determinations or removal (except for asylum). VWP entrants are also treated differently, and perhaps more favorably, when they apply for asylum, because they are entitled to bypass the credible-fear process and proceed directly to an IJ. The terms of the VWP were memorialized in Form I-94W, which had to be filled out and signed by all VWP entrants upon their arrival in the United States. It describes the visitor’s waiver of rights, including any rights to review or appeal of an immigration officer’s determination as to admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation. The Form further elaborates on the conditions that apply to the visitor’s sojourn in the United States, including not to accept unauthorized employment or attend school, or represent the foreign information media during the VWP entrant’s visit under this program. The VWP entrant is authorized to stay in the U.S. for 90 days or less, but may not apply for: 1) a change of nonimmigrant status; 2) adjustment of status to temporary or permanent resident, unless eligible under section 201(b) of the INA; or 3) an extension of stay. Violation of these terms will subject the VWP entrant to deportation.
The scope of this court’s review is narrow, but 8 U.S.C. § 1252 confers authority on the courts of appeals to review VWP decisions, among others.
This court must reject the contention of the petitioner from Guinea who entered the U.S. under VWP with a stolen Belgium passport and overstayed the 90-day period that statutory silence on nationals of non-VWP countries infers that the VWP is entirely inapplicable to them, and that he cannot be held to the terms of a VWP waiver that never should have been before him in the first place and must therefore be subject to ordinary removal procedures. Silence might signify something about the scope of a statute, but it equally might highlight an issue that Congress did not anticipate or that it chose to leave open. It is under these circumstances that Congress has implicitly delegated authority to the relevant agency to resolve the issue. The Attorney General appropriately has acted to clarify the scope of the VWP as it pertains to certain abuses of the program, insofar as the VWP regulations address the situation of ineligible aliens entering fraudulently under the VWP. The BIA also has interpreted the regulations to apply to VWP-ineligible aliens.
In assessing the VWP regulations, the first question is whether this court finds the statute ambiguous, and it does. The fact that it says nothing about nationals of non-VWP countries creates the ambiguity that drives both the petitioner’s and the government’s arguments. The VWP regulations answer that ambiguity by applying the terms of the program to those who enter under the VWP, even if they are ineligible for it. This court’s only task under Chevron is to determine whether the Attorney General’s interpretation, as expressed in the VWP regulations, is reasonable. This court finds that it is. There is little reason to think that Congress would have wanted to confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the Program. This court says this in full recognition of the fact that applying the terms of the VWP to ineligible aliens may also confer on them the possible benefit in asylum cases of being able to skip the credible-fear interview and proceed directly to an IJ. But the fact that there may be some benefits to the ineligible aliens as well as burdens simply means that the Attorney General had to balance several factors in the course of interpreting the statute. He was entitled, in doing so, to adopt an approach that preserves the government’s ability to remove aliens who fraudulently enter under the VWP just as promptly as it can remove legitimate VWP entrants. This is in line with earlier decisions. This court has dismissed attempts by aliens to take control of their removal proceedings for overstay by pleading fraud. This court has also safeguarded the government’s ability to select the ground on which to remove aliens who are in the U.S. illegally. The government in this case was therefore entitled to select overstay under the terms of the VWP as the ground for removing the petitioner.
Immigration law draws a bright line between an alien who has effected an entry into the United States and one who has never entered. This court acknowledges that those who stand at the threshold of admission are subject to special rules. Where the parties do not dispute that the petitioner has entered the U.S., the “entry fiction” doctrine does not apply to him. Once he crossed the border, the petitioner became entitled to certain constitutional rights, including the right to due process.
If the VWP waiver were a garden-variety contract, the petitioner’s argument that he did not understand it would almost certainly fail. The VWP waiver, however, is no normal contract. It includes a waiver of the right to a full immigration hearing; that waiver implicates both statutory rights and, in the final analysis, the constitutional right to due process. In criminal cases, courts both indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. The Supreme Court also has established constitutional standards for waivers of constitutional rights in civil cases. While the Supreme Court has consistently classified deportation proceedings as civil rather than criminal, at the same time the Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. This court concludes from this that the waiver standard in immigration cases, while perhaps not quite as strict as the one applicable to criminal cases must reflect the Supreme Court’s recognition of the unique character of this area.
This court has in the past assumed that a VWP waiver is valid only if it was done knowingly and voluntarily. The government would have us depart from that understanding, substituting a presumption of knowledge for the requirement of actual knowledge. But this would have the practical effect of eliminating the knowledge requirement altogether—a path this court declines to follow for a host of reasons. First, this court does not feel free to abandon the presumption against waiver of constitutional rights, nor does this court think that such a step would be advisable. Second, both the concepts of waiver and the presumption of knowledge of the law are ubiquitous in our legal system; defining their interaction so as to eliminate the knowledge requirement for a valid waiver of constitutional rights would change the law in various contexts not at issue here. Third, adopting a standard that rests solely on voluntariness would lead to absurd results, as it would render all waivers of constitutional rights signed without coercion valid, regardless of whether the signatory understood a single word on the page. As amici point out, this would have a particularly detrimental effect on victims of human trafficking, who often come from VWP countries. These aliens frequently enter the country voluntarily (hoping for employment but often finding hard labor or prostitution) and sign whatever forms that their traffickers put in front of them, without understanding the language on the form. Enforcing the terms of the VWP waiver against the victims of human trafficking (when they signed without knowledge) would prevent them from accessing T and U visas. To render these provisions inoperative in this way would contravene congressional intent to provide relief to those who have been trafficked. In sum, this court declines to pursue such a radical departure from established law.
The only other circuit that has considered this issue, the Fifth Circuit, came to the same conclusion. The government’s contention that were this court to adopt the approach of assuming that a VWP waiver is valid only if it was done knowingly and voluntarily it would raise the specter of endless litigation is without merit. The government has failed to produce any evidence that this standard has proven unworkable in the Fifth Circuit. This is not for want of time to test the standard, which has been around for more than 15 years. Nor is it because the Fifth Circuit lacks experience with immigration, as Houston is a large port of entry and Texas is a popular destination for nonresident nonimmigrants. Perhaps most telling is the fact that the Fifth Circuit itself has not found it necessary to change its standard in response to overwhelming litigation or other concerns. This court therefore holds that an alien’s waiver through the VWP of the due process rights to which he or she would otherwise be entitled must be done both knowingly and voluntarily. That said, there are a few additional points that must be clarified. Just as this court is not inclined to endorse a sea change in the law of waiver, it also does not wish to disturb the understanding that the government is entitled to assume that people know the law. That means, importantly, that immigration officials are under no obligation to provide any form of legal advice to incoming immigrants. This court also expresses no opinion on the procedures the government should adopt in order to ensure that waivers of constitutional rights occur knowingly and voluntarily with respect to language proficiency. Going forward, it seems likely to this court that this problem has largely been solved, as the ESTA website allows the traveler to select for the VWP waiver one of 21 languages, presumably those that are spoken in the 35 VWP countries. For a person already here who did not have the ESTA available to her, there are a variety of methods that could be used to adjudicate a claim contesting the knowing and voluntary nature of her waiver, and it is not this court’s role to prescribe any particular system. This court trusts the executive branch to devise a system that fulfills the goals of fairness, efficiency, and security.
The dicta in The Japanese Immigrant Case, 189 U.S. 86 (1903) is inapplicable to the instant case where the petitioner from Guinea entered the U.S. under VWP with a stolen Belgium passport and overstayed the 90-day period. First, unlike The Japanese Immigrant Case, this court has jurisdiction to review the petitioner’s final orders of removal and the government does not dispute this. Second, the alien in Japanese Immigrant was asserting that her lack of knowledge of English (and her other disabilities) entitled her to a broader scope of judicial review than the statute afforded. The petitioner in the instant case is not claiming that his asserted lack of command of the English language alters the scope of judicial review. Instead, the question is whether he may raise certain arguments in a proceeding authorized by the governing statute. Properly in court, he is entitled to raise as one of his arguments whether, for any reason (including but not limited to language problems) his VWP waiver was unknowing and therefore invalid. Finally, the government also does not allege that the petitioner has failed to exhaust other available remedies provided by the executive branch. Based on these distinctions, The Japanese Immigrant Case is therefore inapplicable in the instant case.
To warrant a new immigration hearing on a due process claim, an alien must establish that she was prejudiced, that is, that the error likely affected the result of the proceedings. Inability to show prejudice is where the petitioner’s case founders. Had he known what the waiver said, the petitioner would have had two options, either of which would have led to summary removal. If he had signed the waiver anyway, knowing full well what it said, he would be in the same situation as he is now. If he had refused to sign, he would have been removed summarily at the border because he did not have a proper visa. Perhaps there is a slight chance that after removal, the petitioner could have obtained a visa to come to the United States, and then he might have settled in Indiana, met his wife, and married her, allowing him to adjust his status based on marriage at that time. As the petitioner admits in his brief though, it is difficult to compare what might have been with what is. This is true, and it is the reason why this court finds the explanation of how the petitioner might have been harmed too speculative to support a showing of prejudice. This
dooms the petitioner’s language proficiency argument as a basis for his petition.
At first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255(c)(4), and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer examination, however, this court believes that they can be reconciled. During the time when a nonimmigrant visitor is within the VWP’s 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays her 90-day visit, however, the effect of the VWP waiver kicks in preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed. The petitioner filed his application for adjustment of status long after his 90 days were up. As a result, his adjustment-of-status application is barred by his valid VWP waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place. This court therefore denies the petition for review.
Friday, January 22, 2010
Kucana v. Holder, 558 U.S. __ (2010).
A motion to reopen is an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings and federal court review of administrative decisions denying motions to reopen removal proceedings dates back to at least 1916. This court has ultimately reviewed reopening decisions on numerous occasions. However, mindful of the BIA’s broad discretion in such matters, however, courts have employed a deferential, abuse-of-discretion standard of review.
Even though it is agreed that the Attorney General’s regulation, 8 CFR §1003.2(a), places the decision to grant or deny a motion to reopen within the discretion of the BIA, 8 USC § 1252(a)(2)(B)(ii) does not codify that prescription, and does not otherwise specify that reopening decisions are “in the discretion of the Attorney General.”
The BIA’s discretionary authority to act on a motion to reopen is “specified” not in a statute, but only in the Attorney General’s regulation, which instructs: “The decision to grant or deny a motion to reopen . . . is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”
The word “under” in the jurisdiction-stripping provision at 8 USC 1252(a)(2)(B)(ii) is chameleon; it has many dictionary definitions and must draw its meaning from its context. Examining, in statutory context, the provision in which the word “under” is embedded, this court concludes that the parties’ position that “specified under this subchapter” means “specified in,” or “specified by,” the subchapter stands on firmer ground.
Both 8 USC §1252(a)(2)(A) and 8 USC §1252(a)(2)(C) depend on statutory provisions, not on any regulation, to define their scope. All the defining references are statutory; none invokes a regulation. Given 8 USC 1252(a)(2)(B)’s statutory placement, sandwiched between subsections (a)(2)(A) and (a)(2)(C), one would expect that it, too, would cover statutory provisions alone.
The proximity of clauses (i) enumeration of administrative judgments that are insulated from judicial review and (ii) a catchall provision covering “any other decision . . . the authority for which is specified under this subchapter,” and the words linking them—“any other decision”—suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, this court finds, is instructive in determining the meaning of the clause (ii) catchall. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.
This court finds significant the character of the decisions Congress enumerated in 8 USC §1252(a)(2)(B)(i), thereby insulating them from judicial review. They are substantive decisions made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. By contrast, decisions on reopening motions made discretionary by regulation are adjunct rulings: A motion to reopen is a procedural device serving to ensure that aliens are getting a fair chance to have their claims heard. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing.
If Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation along with those made discretionary by statute, moreover, Congress could easily have said so. In other provisions enacted simultaneously with 8 USC §1252(a)(2)(B)(ii), such as 8 U. S. C. §1324c(e)(2) and 8 U. S. C. §1103(a)(10), Congress expressed precisely that meaning. Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.
The history of the relevant statutory provisions corroborates this court’s determination that 8 USC §1252(a)(2)(B)(ii) does not proscribe judicial review of denials of motions to reopen.
Enacting IIRIRA in 1996, Congress transformed the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. In the same legislation, Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States. Among IIRIRA’s several proscriptions of judicial review is the one at issue, 8 USC §1252(a)(2)(B)(ii), barring review of administrative decisions Congress placed within the Attorney General’s discretion. Congress thus simultaneously codified the process for filing motions to reopen and acted to bar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny motions to reopen. Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified together with its codification of directions on filing reopening motions. From the Legislature’s silence on the discretion of the Attorney General (or his delegate, the BIA) over reopening motions, this court takes it that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen, but courts retain jurisdiction to review, with due respect, the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this important procedural safeguard designed to ensure a proper and lawful disposition of immigration proceedings where the alien’s underlying claim (for asylum) would itself be reviewable. Although adding or reformulating provisions on asylum, protection from removal, even judicial review, the REAL ID Act did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen.
Any lingering doubt about the proper interpretation of 8 U. S. C. §1252(a)(2)(B)(ii) would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action. When a statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. This court has consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, this court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption and there is no such evidence in the instant case.
By defining the various jurisdictional bars by reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction. To read 8 USC §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore that congressional design. This is a paramount factor in this court’s determination that federal courts have jurisdiction to review BIA’s discretion in denying motions to reopen. If the Seventh Circuit’s construction of 8 USC §1252(a)(2)(B)(ii) were to prevail, the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.
A statute affecting federal jurisdiction must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. As this court has noted, many provisions of IIRIRA were aimed at protecting from court review exercises of the Executive’s discretion. But no law pursues its purpose at all costs and the textual limitations upon a law’s scope are no less a part of its purpose than its substantive authorizations. While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so. Action on motions to reopen, made discretionary by the Attorney General only, therefore remain subject to judicial review. For the reasons stated, the judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Even though it is agreed that the Attorney General’s regulation, 8 CFR §1003.2(a), places the decision to grant or deny a motion to reopen within the discretion of the BIA, 8 USC § 1252(a)(2)(B)(ii) does not codify that prescription, and does not otherwise specify that reopening decisions are “in the discretion of the Attorney General.”
The BIA’s discretionary authority to act on a motion to reopen is “specified” not in a statute, but only in the Attorney General’s regulation, which instructs: “The decision to grant or deny a motion to reopen . . . is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.”
The word “under” in the jurisdiction-stripping provision at 8 USC 1252(a)(2)(B)(ii) is chameleon; it has many dictionary definitions and must draw its meaning from its context. Examining, in statutory context, the provision in which the word “under” is embedded, this court concludes that the parties’ position that “specified under this subchapter” means “specified in,” or “specified by,” the subchapter stands on firmer ground.
Both 8 USC §1252(a)(2)(A) and 8 USC §1252(a)(2)(C) depend on statutory provisions, not on any regulation, to define their scope. All the defining references are statutory; none invokes a regulation. Given 8 USC 1252(a)(2)(B)’s statutory placement, sandwiched between subsections (a)(2)(A) and (a)(2)(C), one would expect that it, too, would cover statutory provisions alone.
The proximity of clauses (i) enumeration of administrative judgments that are insulated from judicial review and (ii) a catchall provision covering “any other decision . . . the authority for which is specified under this subchapter,” and the words linking them—“any other decision”—suggests that Congress had in mind decisions of the same genre, i.e., those made discretionary by legislation. The clause (i) enumeration, this court finds, is instructive in determining the meaning of the clause (ii) catchall. Read harmoniously, both clauses convey that Congress barred court review of discretionary decisions only when Congress itself set out the Attorney General’s discretionary authority in the statute.
This court finds significant the character of the decisions Congress enumerated in 8 USC §1252(a)(2)(B)(i), thereby insulating them from judicial review. They are substantive decisions made by the Executive in the immigration context as a matter of grace, things that involve whether aliens can stay in the country or not. Other decisions specified by statute “to be in the discretion of the Attorney General,” and therefore shielded from court oversight by §1252(a)(2)(B)(ii), are of a like kind. By contrast, decisions on reopening motions made discretionary by regulation are adjunct rulings: A motion to reopen is a procedural device serving to ensure that aliens are getting a fair chance to have their claims heard. A court decision reversing the denial of a motion to reopen does not direct the Executive to afford the alien substantive relief; ordinarily, it touches and concerns only the question whether the alien’s claims have been accorded a reasonable hearing.
If Congress wanted the jurisdictional bar to encompass decisions specified as discretionary by regulation along with those made discretionary by statute, moreover, Congress could easily have said so. In other provisions enacted simultaneously with 8 USC §1252(a)(2)(B)(ii), such as 8 U. S. C. §1324c(e)(2) and 8 U. S. C. §1103(a)(10), Congress expressed precisely that meaning. Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.
The history of the relevant statutory provisions corroborates this court’s determination that 8 USC §1252(a)(2)(B)(ii) does not proscribe judicial review of denials of motions to reopen.
Enacting IIRIRA in 1996, Congress transformed the motion to reopen from a regulatory procedure to a statutory form of relief available to the alien. In the same legislation, Congress amended the INA aggressively to expedite removal of aliens lacking a legal basis to remain in the United States. Among IIRIRA’s several proscriptions of judicial review is the one at issue, 8 USC §1252(a)(2)(B)(ii), barring review of administrative decisions Congress placed within the Attorney General’s discretion. Congress thus simultaneously codified the process for filing motions to reopen and acted to bar judicial review of a number of executive decisions regarding removal. But Congress did not codify the regulation delegating to the BIA discretion to grant or deny motions to reopen. Had Congress elected to insulate denials of motions to reopen from judicial review, it could have so specified together with its codification of directions on filing reopening motions. From the Legislature’s silence on the discretion of the Attorney General (or his delegate, the BIA) over reopening motions, this court takes it that Congress left the matter where it was pre-IIRIRA: The BIA has broad discretion, conferred by the Attorney General, to grant or deny a motion to reopen, but courts retain jurisdiction to review, with due respect, the BIA’s decision. It is unsurprising that Congress would leave in place judicial oversight of this important procedural safeguard designed to ensure a proper and lawful disposition of immigration proceedings where the alien’s underlying claim (for asylum) would itself be reviewable. Although adding or reformulating provisions on asylum, protection from removal, even judicial review, the REAL ID Act did not disturb the unbroken line of decisions upholding court review of administrative denials of motions to reopen.
Any lingering doubt about the proper interpretation of 8 U. S. C. §1252(a)(2)(B)(ii) would be dispelled by a familiar principle of statutory construction: the presumption favoring judicial review of administrative action. When a statute is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. This court has consistently applied that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, this court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption and there is no such evidence in the instant case.
By defining the various jurisdictional bars by reference to other provisions in the INA itself, Congress ensured that it, and only it, would limit the federal courts’ jurisdiction. To read 8 USC §1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore that congressional design. This is a paramount factor in this court’s determination that federal courts have jurisdiction to review BIA’s discretion in denying motions to reopen. If the Seventh Circuit’s construction of 8 USC §1252(a)(2)(B)(ii) were to prevail, the Executive would have a free hand to shelter its own decisions from abuse-of-discretion appellate court review simply by issuing a regulation declaring those decisions “discretionary.” Such an extraordinary delegation of authority cannot be extracted from the statute Congress enacted.
A statute affecting federal jurisdiction must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. As this court has noted, many provisions of IIRIRA were aimed at protecting from court review exercises of the Executive’s discretion. But no law pursues its purpose at all costs and the textual limitations upon a law’s scope are no less a part of its purpose than its substantive authorizations. While Congress pared back judicial review in IIRIRA, it did not delegate to the Executive authority to do so. Action on motions to reopen, made discretionary by the Attorney General only, therefore remain subject to judicial review. For the reasons stated, the judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Wednesday, January 13, 2010
Rincon v. Att’y Gen., No. 08-1752 (3d Cir. Dec. 16, 2009).
This court has generally approved the application of the Lozada procedural requirements to claims of ineffective assistance of counsel in removal proceedings. However, we have modified Lozada to excuse strict compliance with its requirements under particular circumstances such as where the counsel freely admitted his ineffectiveness, the alien was excused from explaining his failure to file a disciplinary complaint against the allegedly ineffective counsel. Where the BIA decision does not specify – and this court is unable to clearly discern from the record – the particular Lozada requirement with which the petitioner failed to comply, this court is therefore unable to meaningfully review the BIA’s application of those requirements to the petitioner. The BIA, in reviewing upon remand, the petitioner’s evidence that he was targeted by the ELN because he was a health-care worker, should reconsider the petitioner’s ineffective-assistance claim in light of our ruling and our cases modifying Lozada.
This court has jurisdiction under INA § 242, 8 U.S.C. § 1252, to review the BIA’s decision that the IJ’s credibility determination was not clearly erroneous. Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this court reviews the decisions of both the BIA and the IJ. This court’s review of these decisions is for substantial evidence, considering whether they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. This court will uphold a pre-Real ID Act adverse credibility determination under the substantial evidence standard unless any reasonable adjudicator would be compelled to conclude to the contrary. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Furthermore, this court must uphold a determination regarding the availability of corroborating evidence unless a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.
Where the petitioner provided reasonable explanations for the perceived minor inconsistencies in the description of a traumatic event, and where the IJ failed to acknowledge either of the petitioner’s explanations for the alleged discrepancies, they do not support an adverse credibility determination, particularly in light of the petitioner’s otherwise consistent account.
Where the petitioner considers the police and the human rights office to be the same, and where the record shows that the petitioner reported to both the police and the human rights office on the next day of the shooting, substantial evidence does not support the BIA’s conclusion that the petitioner was unable to remember reporting the shooting incident to a human rights office.
Where the petitioner’s description of going to the police in the morning is supported by the Human Rights Chief’s statement that the petitioner presented a copy of the complaint submitted to the metropolitan police when he appeared in the DAS office at 3:00 p.m., this court perceives no inconsistency in the 5-hour difference between the reports.
Where the IJ noted that it was impossible for the petitioner to attempt to authenticate the documents because the Government did not return the documents to the petitioner’s counsel with such a request, and where the BIA offered no explanation for its decision to hold the lack of authentication against the petitioner, the BIA’s agreement with the IJ’s finding that the petitioner failed to establish that he was in Colombia from November 2001 to February 2002 is without basis. This court will grant the petition for review, vacate the BIA’s order of February 20, 2008, including that portion of the order which denied the petitioner’s motion to remand on futility grounds, and remand for further proceedings.
This court has jurisdiction under INA § 242, 8 U.S.C. § 1252, to review the BIA’s decision that the IJ’s credibility determination was not clearly erroneous. Because the BIA adopted the findings of the IJ and also commented on the sufficiency of the IJ’s determinations, this court reviews the decisions of both the BIA and the IJ. This court’s review of these decisions is for substantial evidence, considering whether they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. This court will uphold a pre-Real ID Act adverse credibility determination under the substantial evidence standard unless any reasonable adjudicator would be compelled to conclude to the contrary. Adverse credibility determinations based on speculation or conjecture, rather than on record evidence, are reversible. Furthermore, this court must uphold a determination regarding the availability of corroborating evidence unless a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.
Where the petitioner provided reasonable explanations for the perceived minor inconsistencies in the description of a traumatic event, and where the IJ failed to acknowledge either of the petitioner’s explanations for the alleged discrepancies, they do not support an adverse credibility determination, particularly in light of the petitioner’s otherwise consistent account.
Where the petitioner considers the police and the human rights office to be the same, and where the record shows that the petitioner reported to both the police and the human rights office on the next day of the shooting, substantial evidence does not support the BIA’s conclusion that the petitioner was unable to remember reporting the shooting incident to a human rights office.
Where the petitioner’s description of going to the police in the morning is supported by the Human Rights Chief’s statement that the petitioner presented a copy of the complaint submitted to the metropolitan police when he appeared in the DAS office at 3:00 p.m., this court perceives no inconsistency in the 5-hour difference between the reports.
Where the IJ noted that it was impossible for the petitioner to attempt to authenticate the documents because the Government did not return the documents to the petitioner’s counsel with such a request, and where the BIA offered no explanation for its decision to hold the lack of authentication against the petitioner, the BIA’s agreement with the IJ’s finding that the petitioner failed to establish that he was in Colombia from November 2001 to February 2002 is without basis. This court will grant the petition for review, vacate the BIA’s order of February 20, 2008, including that portion of the order which denied the petitioner’s motion to remand on futility grounds, and remand for further proceedings.
Saturday, January 2, 2010
Garcia v. Holder, No. 07-72516 (9th Cir. Dec. 30, 2009).
This court has jurisdiction pursuant to 8 U.S.C. § 1252 to review the BIA’s order dismissing the petitioner’s appeal from an IJ’s removal order and denying his application for voluntary departure. This court reviews de novo questions of law and claims of due process violations in immigration proceedings.
The BIA properly concluded that the peititoner is removable under 8 U.S.C. § 1227(a)(1)(A) because the record of conviction establishes that his 1995 conviction for violating California Health & Safety Code Section 11366.5 related to a federally defined controlled substance and he was therefore inadmissable at the time of his 1999 entry.
The petitioner’s contention that California Health & Safety Code Section 11366.5 lacks the requisite mens rea to qualify as a crime relating to a controlled substance is unavailing. To the extent the petitioner contends that he lacked the requisite mens rea for conviction, this court cannot collaterally reexamine his conviction in this instant case.
The petitioner’s statutory eligibility for voluntary departure was a question of law which the BIA is permitted by regulation to review de novo. Therefore, the petitioner’s contention that BIA’s sua sponte vacatur of the IJ’s grant of voluntary departure violated due process is unpersuasive.
The BIA erred in holding that the petitioner’s conviction under California Health & Safety Code Section 11366.5 was categorically an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Not all the behavior prohibited by Section 11366.5 would constitute a violation of 21 U.S.C. § 856(a)-(b). First, 21 U.S.C. § 856(a)(1) requires that the owner personally intend to engage in prohibited drug manufacturing, distribution, or usage, while Section 11366.5 requires only that the owner knowingly permit others who have such intent to engage in drug-related activity on the property. Second, although 21 U.S.C. § 856(a)(2) and Section 11366.5 are similar, they differ in that the mens rea requirement for the former is “knowingly and intentionally” while the mens rea requirement for the latter is only “knowingly.” This court cannot read the explicit mens rea requirement of “intentionally” out of the statute. Under accepted canons of statutory interpretation, this court must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous. Because the BIA did not reach any other basis for characterizing the petitioner’s conviction as an aggravated felony, this court remands for the BIA to reconsider the petitioner’s request for voluntary departure. The petition for review is therefore denied in part, granted in part, and the case is remanded.
The BIA properly concluded that the peititoner is removable under 8 U.S.C. § 1227(a)(1)(A) because the record of conviction establishes that his 1995 conviction for violating California Health & Safety Code Section 11366.5 related to a federally defined controlled substance and he was therefore inadmissable at the time of his 1999 entry.
The petitioner’s contention that California Health & Safety Code Section 11366.5 lacks the requisite mens rea to qualify as a crime relating to a controlled substance is unavailing. To the extent the petitioner contends that he lacked the requisite mens rea for conviction, this court cannot collaterally reexamine his conviction in this instant case.
The petitioner’s statutory eligibility for voluntary departure was a question of law which the BIA is permitted by regulation to review de novo. Therefore, the petitioner’s contention that BIA’s sua sponte vacatur of the IJ’s grant of voluntary departure violated due process is unpersuasive.
The BIA erred in holding that the petitioner’s conviction under California Health & Safety Code Section 11366.5 was categorically an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). Not all the behavior prohibited by Section 11366.5 would constitute a violation of 21 U.S.C. § 856(a)-(b). First, 21 U.S.C. § 856(a)(1) requires that the owner personally intend to engage in prohibited drug manufacturing, distribution, or usage, while Section 11366.5 requires only that the owner knowingly permit others who have such intent to engage in drug-related activity on the property. Second, although 21 U.S.C. § 856(a)(2) and Section 11366.5 are similar, they differ in that the mens rea requirement for the former is “knowingly and intentionally” while the mens rea requirement for the latter is only “knowingly.” This court cannot read the explicit mens rea requirement of “intentionally” out of the statute. Under accepted canons of statutory interpretation, this court must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous. Because the BIA did not reach any other basis for characterizing the petitioner’s conviction as an aggravated felony, this court remands for the BIA to reconsider the petitioner’s request for voluntary departure. The petition for review is therefore denied in part, granted in part, and the case is remanded.
Hernandez v. Holder, No. 09-60261 (5th Cir. Dec. 30, 2009).
To be entitled to cancellation of removal, an alien must show that he has not been convicted of any aggravated felony. Section 1101(a)(43)(E)(ii) of Title 8, United States Code, defines “aggravated felony” as including an offense described in Section 922(g)(1) of Title 18, United States Code. Under 18 U.S.C. § 922(g)(1), it is unlawful for any person who has been convicted of a felony to possess, in or affecting interstate commerce, any firearm. To determine whether the petitioner’s firearm offense constitutes an “aggravated felony,” this court applies a “‘categorical approach,’ under which this court refers only to the statutory definition of the crime for which the alien was convicted and ask whether that legislatively-defined offense necessarily fits within the INA definition of an aggravated felony. This court concludes that the petitioner’s offense under TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of “aggravated felony.” Accordingly, the BIA did not err in finding that the petitioner was ineligible for cancellation of removal.
The petitioner’s argument that his conviction for unlawful possession of a firearm under Texas Penal Code (“TPC”) § 46.04(a) was not an offense described in 18 U.S.C. § 922(g)(1) because TPC § 46.04(a) does not contain an interstate commerce element is without merit. This court holds that state felon-in possession offenses, such as TPC § 46.04(a), need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. § 922(g)(1). The petition for review is therefore denied.
This Court has jurisdiction to review legal and constitutional issues raised pertaining to removal orders. The BIA’s determination that an alien is ineligible for discretionary relief in the form of cancellation of removal is a question of law that this court reviews de novo. In conducting the analysis, this court first reviews the BIA’s interpretation of the INA itself, including its definition of the INA’s words and phrases. This court then reviews de novo whether a petitioner’s conviction under a state statute constitutes an “aggravated felony” and renders him ineligible for cancellation of removal.
This court needs not determine the precise degree of deference to be afforded the BIA’s interpretation because this court concludes that it is correct as a matter of statutory interpretation. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.
In Castillo-Rivera in Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1272 (9th Cir. 2009), the Ninth Circuit held that a petitioner’s contention that his conviction was not an aggravated felony as described in § 922(g)(1) because an interstate commerce element was not present was foreclosed by United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001), which held that a state crime of conviction need not have the interstate-commerce element contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated felony under § 1101(a)(43)(E)(ii).
The statutory provision at 8 U.S.C. § 1101(a)(43)(E)(ii) defines “aggravated felony” as an offense “described in” 18 U.S.C. § 922(g)(1). According to the BIA, for an offense to be “described in” 18 U.S.C. § 922(g)(1), it only has to have the same substantive elements as § 922(g)(1); jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are irrelevant. Section 1101(a)(43)’s penultimate sentence supports the BIA’s interpretation that jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are not necessary for an offense to be an “aggravated felony” as “described in” § 922(g)(1). In its “penultimate sentence,” § 1101(a)(43) states that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law.” Section 1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of whether the offense falls within the jurisdiction of the states or the federal government. Because § 922(g)(1)’s interstate commerce element is simply an element that ensures federal jurisdiction, finding that such an element is necessary for a state offense to be one that is “described in” § 922(g)(1) would undermine Congress’s evident intent that jurisdiction be disregarded in applying this definition of “aggravated felony.”
The text of § 1101(a)(43) also shows that Congress intended more than a negligible number of state firearm offenses to be encompassed within § 1101(a)(43)(E)(ii)’s definition of “aggravated felony,” and interpreting the jurisdictional element of § 922(g) as essential for a state offense to qualify as an aggravated felony would undermine that intent. Section 1101(a)(43)’s “penultimate sentence” shows that Congress clearly intended state crimes to serve as predicate offenses for aggravated felonies, and the fact that Congress used the looser standard ‘described in’ for § 1101(a)(43)(E), rather than the more precise phrase ‘defined in’ used elsewhere in §1101(a)(43), demonstrates that Congress wanted more than a negligible number of state firearms offenses to count as aggravated felonies. Interpreting § 922(g)(1)’s interstate commerce element as essential for a state offense to qualify as an aggravated felony would violate Congress’s intent to include more than a negligible number of state offenses under § 1101(a)(43)(E)(ii), because state firearms statutes would rarely, if ever contain an interstate commerce element and convictions under such statutes would rarely, if ever specify whether the commerce element was met. This court therefore concludes that the BIA’s interpretation of § 1101(a)(43)(E)’s “described in” language is in accord with the text and purpose of § 1101(a)(43)(E)(ii), and this court adopts it in the instant case.
The petitioner’s argument that his conviction for unlawful possession of a firearm under Texas Penal Code (“TPC”) § 46.04(a) was not an offense described in 18 U.S.C. § 922(g)(1) because TPC § 46.04(a) does not contain an interstate commerce element is without merit. This court holds that state felon-in possession offenses, such as TPC § 46.04(a), need not have an interstate commerce element in order for the offense to be an offense “described in” 18 U.S.C. § 922(g)(1). The petition for review is therefore denied.
This Court has jurisdiction to review legal and constitutional issues raised pertaining to removal orders. The BIA’s determination that an alien is ineligible for discretionary relief in the form of cancellation of removal is a question of law that this court reviews de novo. In conducting the analysis, this court first reviews the BIA’s interpretation of the INA itself, including its definition of the INA’s words and phrases. This court then reviews de novo whether a petitioner’s conviction under a state statute constitutes an “aggravated felony” and renders him ineligible for cancellation of removal.
This court needs not determine the precise degree of deference to be afforded the BIA’s interpretation because this court concludes that it is correct as a matter of statutory interpretation. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.
In Castillo-Rivera in Anaya-Ortiz v. Mukasey, 553 F.3d 1266, 1272 (9th Cir. 2009), the Ninth Circuit held that a petitioner’s contention that his conviction was not an aggravated felony as described in § 922(g)(1) because an interstate commerce element was not present was foreclosed by United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir. 2001), which held that a state crime of conviction need not have the interstate-commerce element contained in 18 U.S.C. § 922(g)(1) to qualify as an aggravated felony under § 1101(a)(43)(E)(ii).
The statutory provision at 8 U.S.C. § 1101(a)(43)(E)(ii) defines “aggravated felony” as an offense “described in” 18 U.S.C. § 922(g)(1). According to the BIA, for an offense to be “described in” 18 U.S.C. § 922(g)(1), it only has to have the same substantive elements as § 922(g)(1); jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are irrelevant. Section 1101(a)(43)’s penultimate sentence supports the BIA’s interpretation that jurisdictional elements, such as § 922(g)(1)’s interstate commerce element, are not necessary for an offense to be an “aggravated felony” as “described in” § 922(g)(1). In its “penultimate sentence,” § 1101(a)(43) states that “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law.” Section 1101(a)(43)’s penultimate sentence plainly evidences Congress’s intent that an offense constitute an aggravated felony under § 1101(a)(43)(E) regardless of whether the offense falls within the jurisdiction of the states or the federal government. Because § 922(g)(1)’s interstate commerce element is simply an element that ensures federal jurisdiction, finding that such an element is necessary for a state offense to be one that is “described in” § 922(g)(1) would undermine Congress’s evident intent that jurisdiction be disregarded in applying this definition of “aggravated felony.”
The text of § 1101(a)(43) also shows that Congress intended more than a negligible number of state firearm offenses to be encompassed within § 1101(a)(43)(E)(ii)’s definition of “aggravated felony,” and interpreting the jurisdictional element of § 922(g) as essential for a state offense to qualify as an aggravated felony would undermine that intent. Section 1101(a)(43)’s “penultimate sentence” shows that Congress clearly intended state crimes to serve as predicate offenses for aggravated felonies, and the fact that Congress used the looser standard ‘described in’ for § 1101(a)(43)(E), rather than the more precise phrase ‘defined in’ used elsewhere in §1101(a)(43), demonstrates that Congress wanted more than a negligible number of state firearms offenses to count as aggravated felonies. Interpreting § 922(g)(1)’s interstate commerce element as essential for a state offense to qualify as an aggravated felony would violate Congress’s intent to include more than a negligible number of state offenses under § 1101(a)(43)(E)(ii), because state firearms statutes would rarely, if ever contain an interstate commerce element and convictions under such statutes would rarely, if ever specify whether the commerce element was met. This court therefore concludes that the BIA’s interpretation of § 1101(a)(43)(E)’s “described in” language is in accord with the text and purpose of § 1101(a)(43)(E)(ii), and this court adopts it in the instant case.
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