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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.

Police Report that Had Been Incorporated into Guilty Plea Was Part of Record of Conviction

In applying the modified categorical approach to assess an alien’s conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings.

The Board of Immigration Appeals (BIA or Board) has held that, in applying the modified categorical approach to assess an alien's conviction, it is proper to consider the contents of police reports as part of the record of conviction if they were specifically incorporated into the guilty plea or were admitted by the alien during the criminal proceedings. In the instant case, the respondent was convicted of battery against a spouse, and the issue was whether that conviction amounted to a crime of violence. Matter of Milian-Dubon, 25 I. & N. Dec. 197 (B.I.A. Feb. 19, 2010).

The respondent, a native and citizen of Guatemala, is a lawful permanent resident of the U.S. In 2004, he pled guilty to battery of his spouse in violation of Cal. Penal Code § 243(e)(1). The Department of Homeland Security (DHS) initiated removal proceedings, contending that the respondent's conviction rendered him removable under INA § 237(a)(2)(E)(i) [8 USCA § 1227(a)(2)(E)(i)] for having committed a crime of domestic violence. The immigration judge (IJ), finding that the record of conviction consisted only of the criminal complaint and guilty plea, concluded that the information in the record did not clearly establish that the respondent had been convicted of a crime of domestic violence and terminated the proceedings. DHS appealed the IJ's decision, arguing that the IJ erred by not including the police report in the record of conviction.

In a decision written by Board Member Garry Malphrus, in which Board Members Edward Grant and Neil P. Miller joined, the Board began its analysis by looking at the language of the relevant statutes. It found first that the generic statute holds that a crime of domestic violence is a crime of violence against, among others, a current or former spouse. Further, the generic definition of crime of violence includes, among other things, the use, attempted use, or threatened use of physical force against another person. Turning to the California statutes, the BIA found that the California crime of domestic violence statute punishes battery against certain persons, in this case, the respondent's spouse. The BIA looked at the California definition of “battery,” which is any willful and unlawful use of force or violence upon the person of another, and determined that it did not require a force capable of hurting or causing injury nor did it require violence in the usual sense of the term. Thus, the Board opined, the respondent's crime was not categorically a crime of violence or, by extension, a crime of domestic violence. The Board thus turned to the modified categorical approach outlined by the U.S. Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990).

Under the modified categorical approach as applied in the U.S. Court of Appeal for the Ninth Circuit, the jurisdiction in which the respondent's case is being litigated, only when the particular elements of the crime are broader than the generic crime can the modified categorical approach be used. Further, if the crime of conviction is missing an element of the generic crime, the approach may not be used. The Board opined that battery is an element of the crime that the respondent was convicted of and, thus, the crime of domestic violence is not missing an element of the general crime. The Board concluded that it was therefore free to use the modified categorical approach in the instant matter.

Applying the approach, the Board stated that it “may look beyond the language of the statute of conviction to a specific set of judicially noticeable documents that are part of the record of conviction, including the charging document, the judgment of conviction, jury instructions, a signed guilty plea, the transcript from the plea proceedings, and any explicit factual findings by the trial judge to which the alien assented in the criminal proceedings.” In the instant matter, the relevant conviction documents included the criminal complaint and the respondent's signed guilty plea, which reflects that the respondent pled guilty to Count 2 and stipulated to the police report prepared in connection with his arrest as the factual basis for his guilty plea. The Board stated that, while a police report, standing alone, is not part of the record of conviction,
the fact that the respondent incorporated the police report into the guilty plea made it an “explicit statement ‘in which the factual basis for the plea was confirmed by the [respondent].”’

The Board rejected the respondent's argument that the police report was not admitted into the record and thus should not be considered. The Board opined that, because the plea agreement incorporates the police report, it is indeed considered part of the record. The IJ should have considered the information in the police report, the Board concluded, and remanded that matter to the IJ for further findings consistent with the Board's opinion.

John Richard Smith, San Diego, California, represented the respondent. Megan Berry Oshiro, Assistant Chief Counsel, represented DHS.

Illegal immigrant marrying US citizen. Can I apply for residency?

Question: I am an undocumented immigrant was brought to the US when i was about 6yrs old, have lived here ever since, i am going to marry a US citizen. We are trying to figure out what we need to do to make me a resident. Some have told us it would be better to get married in the country i was born in and then apply for residency others say we should get married here in the US and apply for residency???? Need advice please!! Thanks in advance!

Answer: Illegal immigrant marrying US citizen. How can we apply for residency for illegal immigrant?

EOIR Immigration Law Advisor

EOIR Virtual Law Library - AG/BIA Precedent Decisions

EOIR has published a monthly internal legal newsletter, the Immigration Law Advisor, since January 2007 summarizing new developments in immigration law. The Immigration Law Advisor includes a feature article about an issue in immigration law, federal court activity (which includes circuit-specific information about appeals and interesting cases), BIA precedent decisions, and a regulatory update.

Volume 4 #1

__________

Seventh Circuit: Milanovic v. Holder, __F.3d__, 2010 WL 22371 (7th Cir. Jan. 6, 2010): The Seventh Circuit affirmed the denial of the Serbian petitioner‚ applications for withholding of removal and protection under the Convention Against Torture. (The petitioner‚ asylum application was dismissed as untimely.) The Immigration Judge found that the petitioner was persecuted when he was beaten by supporters of Slobodan Milosevic. However, relying on the State Department Country Report, the Immigration Judge ruled that DHS rebutted the presumption of future persecution, given that Milosevic is no longer in power. With respect to the petitioner's argument‚that his claim of persecution was based on the actions of a purely local official and thus the ouster of Milosevic could not constitute a change in country conditions sufficient to rebut the presumption of future persecutions, the court ruled this argument was waived because the petitioner did not present it to the Immigration Judge or Board. The court further ruled that, even if the petitioner's argument was not waived, there is adequate evidence to support the Immigration Judge's determination that the removal of Milosevic constituted a change in country conditions sufficient to rebut the presumption of future persecution.

Haile v. Holder, __F.3d__, 2010 WL 22372 (7th Cir. Jan. 6, 2010): The
Seventh Circuit remanded following the denial of the petitioner's application for asylum. The petitioner was born in Ethiopia to parents of Eritrean ethnicity. When Eritrea and Ethiopia separated in 1993, the petitioner's parents renounced their Ethiopian citizenship and became Eritrean citizens, but the petitioner remained in Ethiopia and kept his Ethiopian citizenship. In 1998, when war began between Ethiopia and Eritrea, Ethiopia expelled 75,000 Ethiopian citizens of Eritrean ethnicity. Before he could be expelled from Ethiopia, the petitioner went to the United States and applied for asylum, arguing that Ethiopia's stripping him of citizenship constituted persecution. The Immigration Judge initially denied the application on the grounds that stripping a person of citizenship, without anything more, is not persecution. The Seventh Circuit remanded in Haile v. Gonzales, 421 F.3d 493 (7th Cir. 2005), but the Board subsequently denied the application again. In remanding for a second time with its present decision, the court first agreed with the Board "that not all denationalizations are instances of persecution." However, the court disagreed with the Board's conclusion that even if a person loses his citizenship because of a "A protected ground‚" . . . such a loss of citizenship does not, without more, amount to persecution.‚" In this respect, the court stated that "i]f Ethiopia denationalized the petitioner because of his Eritrean ethnicity, it did so because of hostility to Eritreans . . . and [this] suggest[s] that his denationalization was persecution and created a presumption that he has a well-founded [sic] fear of being persecuted should he be returned to Ethiopia."

Bayo v. Napolitano, __F.3d__, 2010 WL 174231 (7th Cir. Jan. 20, 2010):
The Seventh Circuit denied the petition for review of a citizen of Guinea from the DHS‚ summary order of removal. The petitioner, who entered the United States under the Visa Waiver Program using a stolen Belgian passport, had been ordered removed by DHS without being placed in removal proceedings. The court rejected the petitioner's argument that the VWP provisions could not apply to him as a citizen of Guinea (a non-VWP country) and further found no due process violation based on the petitioner‚ claim that his signing of the waiver of his right to a hearing was not‚ "knowing and voluntary" where he failed to establish that he was prejudiced as a result. The court finally found that the petitioner was precluded from pursuing his adjustment of status application (based on his marriage to a United States citizen) where such petition was filed beyond the 90-day limit for visits allowed under the VWP provisions.

Kucana v. Holder, __S. Ct.__, 2010 WL 173368 (Jan. 20, 2010): The Supreme Court reversed and remanded the decision of the United States Court of Appeals for the Seventh Circuit, which had ruled that it lacked jurisdiction to review the Board's denial of a motion to reopen based on a claim of changed country conditions in Albania. The Court held that the provisions of section 242(a)(2)(B) of the Act prohibit judicial review of matters in which the Attorney General is given discretion by statute, but not to matters in which the Attorney General grants discretion to the Board by regulation.

Refugee Caselaw Site - Asylum Law - University of Michigan Law School

Refugee Law - Asylum Law - University of Michigan Law School

The Refugee Caselaw Site, directed by Prof. James C. Hathaway, is the world's only collection of carefully selected leading cases which interpret and apply the UN's refugee definition, used as the basis for access to protection in nearly 150 states around the world. It's completely free to use, can be searched via structured and free-text queries, and allows users to download full-text judgments of cases. It's a volunteer effort of academics, judges, and practitioners from nearly 30 countries to share the best of refugee law knowledge with their colleagues.