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Gonzalez-Balderas v. Holder (7th Circuit March 5, 2010)

On Petition to Review an Order of the BIA, the Seventh Circuit affirmed a denial of a Mexican National's request to reapply for admission retroactive to the date of her second reentry. The petitioner initially entered the U.S. illegally by using someone else's documentation and removed, which made her ineligible to seek readmission for five years. She illegally reentered a second time, which meant that she would be prevented from reapplying for permission to enter for ten years. Thus, in affirming the denial, the court held that application for retroactive relief cannot be granted when the effect would be to lift the ten-year bar.

Gonzalez-Balderas v. Holder, No. 09-1890

The petitioner, a Mexican citizen, entered the United States illegally by the use of someone else’s documentation and was promptly removed. 8 U.S.C. § 1225(b)(1)(A)(i). Her removal made her ineligible to seek readmission to the United States for five years unless she obtained permission to reapply for permission earlier. §§ 1182(a)(9)(A)(i), (iii).

Rather than either wait or ask for permission to reapply, she snuck back into the United States a month later. This meant that she was forbidden to reapply for permission to enter for ten years. § 1182(a)(9)(C)(i)(II)(ii). Still, here she was, undetected, and the following year her husband, a lawful permanent resident of the United States (since then he has become a citizen), whom she had married shortly after her second illegal entry, filed a visa petition on her behalf. The petition was granted, and later she filed an application to adjust her status, on the basis of her husband’s status, to that of a lawful permanent resident. § 1255(i)(1).

Upon discovering that she had reentered the country illegally after being removed, the Department of Home- land Security, though it could have removed her sum- marily, § 1231(a)(5), instead merely denied her applica- tion for adjustment of status and scheduled a new removal hearing. At that hearing which she asked the immigration judge to permit her to reapply for ad- mission retroactive to the date of her reentry. Her authority was 8 C.F.R. § 212.2(i)(2), which states that an adjustment of status can be ordered retroactively.

The immigration judge, seconded by the Board of Immigration Appeals, ruled on the authority of In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), that an application for retroac- tive relief (which the Board calls “nunc pro tunc”—“now for then”—relief, a term that properly refers, rather, to cor- recting a mistake, Central Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999); King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)) cannot be granted when the effect would be to lift the ten-year bar.

Retroactive relief is a tool long employed by the immigra- tion authorities, based on what they believe to be implied statutory authority to provide relief from the harsh provi- sions of the immigration laws in sympathetic cases. See, e.g., Patel v. Gonzales, 432 F.3d 685, 693 (6th Cir. 2005); Edwards v. INS, 393 F.3d 299, 308-09 (2d Cir. 2004). This case conceivably is one. The petitioner is 51 years old and has three children, one a U.S. citizen and the others lawful permanent residents, and apart from her illegal entries she has been law-abiding. But the Board ruled that the regulation cannot contravene the statute that bars a removed alien from reapplying for admission for ten years.

Policy of prosecuting illegal aliens with no substantial criminal records is "a huge waste of resources"

Pushback over border busts
Texas judge tells prosecutors to keep illegal entry cases out of court.

by Marcia Coyle: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202444704175

March 1, 2010

After warning federal prosecutors for two years, Judge Sam Sparks was fed up with the parade of nonviolent illegal aliens in the overburdened courtrooms in his Texas division. What he did next, said lawyers across the country, was astounding and unprecedented.

While other judges simply complained about a prosecution policy initiated by the Bush administration, the Republican-appointed judge in Austin issued an order challenging the U.S. attorney's office to justify each illegal re-entry case brought before him.

Sparks is on the back end of a problem that is consuming the dockets in the U.S. District Court for the Western District of Texas: the prosecution of immigrants for illegal entry or re-entry who have no substantial criminal records.

His fellow judges in the Western District tell him, "You're doing like always, Sam, hitting your head against a steel door," said Sparks in an interview. But if he can't crack steel, this judge clearly intends to make enough noise to be heard while trying.

"Every judge in the Western District of Texas is sentencing a substantial number of illegal aliens every month," he wrote in his Feb. 5 order. "It appears the United States Attorney is not screening these cases to eliminate those persons who need no federal prosecution and should simply be returned to their own country."

Sparks' order appears to be aimed at Operation Streamline — a zero-tolerance enforcement program begun in 2005 and continued by the Obama administration. Under the program, anyone who crosses the border illegally is prosecuted criminally instead of being routed into civil deportation proceedings as previously done if there were no criminal record. All get deported after they serve their sentences — up to six months for the misdemeanor of first entry, up to 20 years for felony re-entry.

Austin isn't within Operation Stream­line's jurisdiction but that hasn't stopped prosecutors, and neither is San Antonio, which shares Austin's pain to such a degree that the overwhelmed Federal Public Defender's Office has begun handing cases over to private attorneys. The Western Division ranks third in the nation in immigration prosecutions. And then there is Wyoming. That's right, Wyoming. Not exactly viewed as a hotbed of illegal immigration, prosecutions of re-entry cases tripled there from roughly 30 to 100 from 2008 to 2009, said Assistant Federal Public Defender David Weiss, adding, "They're pretty much prosecuting every re-entry."

"Those people who have criminal records, they should be prosecuted and they're going to jail," Sparks said. "But a lot of people lived here, went to school here and then got deported because they never were citizens. They have family here and sometimes get caught coming back because a brother or sister needs help. It doesn't make any sense to send those people to the penitentiary.

"When we're prosecuting illegal re-entry cases without any real criminal history, we're spending 3,000 to 6,000 bucks a head to do what we would without prosecution. All of them get deported. The only question is when."

ENFORCING THE LAW

Sparks, appointed to the Western District of Texas by President George H.W. Bush, is a "very, very smart judge" and knows exactly why the U.S. attorney's office is doing what it is doing, said immigration attorney Daniel Kowalski of Austin.

"They're easy numbers, slam-dunk cases, so if they want to rack up their numbers, they just do entry cases," Kowalski said. "And it's part of what Operation Streamline tells them to do, even though Austin isn't part of Operation Streamline."

Operation Streamline is enforced in Yuma and Tucson, Ariz.; Las Cruces, N.M.; and Del Rio, El Paso, Laredo, McAllen and Brownsville, Texas.

But other immigration attorneys in the area said what is happening is not exactly like Operation Streamline. That program is fast-track enforcement, taking cases from arrest along the border to sentencing in two days. In Austin, San Antonio and other areas outside of that operation, processing can take much longer. Sparks' controversial order was issued in the case of three illegal immigrants who had been in custody three months at a cost to the county jail of more than $13,000, he said, plus medical, dental, transportation, defense and other costs. He sentenced them to time served on Feb. 5.

The cases often are more complex. Some immigrants have citizenship claims and challenges to deportation that take time to sort out and to defend, explained attorneys. They can be sufficiently complicated that judges in San Antonio were reluctant to allow private attorneys to handle them until the Federal Public Defender Office provided training.

In his order, Sparks said federal prosecutors had failed, when he asked, to state why the three immigrants he sentenced were prosecuted instead of deported, and he ordered their office to respond. On Feb. 23, acting U.S. Attorney John Murphy filed his response.

After telling Sparks that the U.S. attorney's office ordinarily does not have to explain its reasons for prosecuting certain defendants, Murphy said he would do so because the judge had raised a matter of public interest.

In addition to increased prosecutions at the border, Murphy said his office has expanded prosecutions in all divisions in the Western District "to include a wide spectrum of violators, and not only the 'aggravated felons' that were the primary subject of prosecutions for violation" in past years for illegal re-entry.

Each of the three Mexican defendants addressed in Sparks' order, he added, had been repeatedly removed from the United States and were last in custody for burglary of a vehicle and driving while intoxicated.

"While it is not certain that prosecuting these defendants for felony violations will change their conduct, this prosecutor is unwilling to wait for them to commit even more serious crimes, and possibly harm innocent drivers, passengers, or pedestrians, before charging them with the provable offenses they already have committed," Murphy wrote.

His predecessor, Johnny Sutton, partner in Austin's The Ashcroft Group, who served from 2001 to April 2009, said the Western District always had a reputation for aggressive prosecution, particularly along the border.

In 2007, he recalled, Congress authorized 14 new prosecutors for his district's border enforcement. "One of the things I did was put a number of them at the border, but some went to interior offices like San Antonio and Waco," he said. "What you're seeing is prosecutions being done by those prosecutors. What changed was resources."

Sutton added, "I do have sympathy for judges who in the old days did bank robberies and white-collar crimes, and now have to do a lot of immigration cases, not particularly interesting cases for them. But I think it's clear people think something needs to be done with immigration and this is one place to start."
CRITICISM BUILDS

The policy of prosecuting illegal aliens with no substantial criminal records is "a huge waste of resources," said Denise Gilman, head of the University of Texas School of Law's immigration clinic. "Law enforcement and our courts must have more serious activities to be pursuing."

Echoing her criticism is a growing chorus of judges, defense attorneys, academics and even some prosecutors. Just recently, the Warren Institute on Race, Ethnicity & Diversity at the University of California, Berkeley School of Law released a study of the effectiveness of Operation Streamline and recommended a return to leaving illegal border crossings to the civil immigration system and restoration of prosecutors' discretion to initiate prosecutions that they feel should be a priority.

When the government talks about "criminal aliens," said Michele Waslin, senior policy analyst at the Immigration Policy Center, "the impression is these are dangerous, violent criminals, when, in fact, many are not."

The situation is unlikely to change. The Department of Justice has asked for a $231.6 million increase in funding for fiscal year 2010 to support enforcement along the southwest border and Operation Streamline; $8.1 million of this is just for new prosecutors to help adjudicate Operation Streamline cases.

On Feb. 17, TRAC, the Transactional Records Access Clearinghouse at Syracuse University, released its latest report on Department of Justice prosecutions:

During the first nine months of fiscal year 2009, there were 67,994 new immigration prosecutions — 54% of all federal criminal filings. At the current pace, the estimated total for this fiscal year will be 90,659 — a 14.1% increase from the past fiscal year, a 139% increase from five years ago and a 459% percent from a decade earlier.

The top-ranked lead charges were entry of alien at improper time or place and re-entry of deported alien, with the largest number of prosecutions in the Southern District of Texas, the District of Arizona and the Western District of Texas.

"If you take out immigration prosecutions, the number of prosecutions is going down, including felonies," said TRAC's Susan Long.

All he really wants, Sparks said, is better screening of the cases, and he intends to demand reasons from prosecutors when he sees none in the pre-sentencing reports.

"It's an administrative nightmare to handle the numbers we're handling in all of the divisions when we don't have the federal facilities or judges needed," he said.

"People say, 'Well, Sparks, you have to enforce the law.' And I get nice letters from employers who say these aliens were reliable and never gave them any trouble. They could have stopped illegal immigration a long time ago by enforcing it against employers. This situation was leaderless before the election and nothing has changed."

Marcia Coyle can be contacted at mcoyle@alm.com.