USCIS Issues Interim Guidance on Providing Information on Appeals and Motions to Reopen or Reconsider in Denial Notices; Seeks Comments

Posted on February 7, 2011 by Mike Baker

U.S. Citizenship and Immigration Services (USCIS) has released to the public an interim policy memorandum (IPM) dated January 26, 2011, providing USCIS adjudicators issuing denial notices guidance on advising petitioners and applicants as to whether they may file a motion to reopen or reconsider or an appeal to the Board of Immigration Appeals (BIA or Board) or the Administrative Appeals Office (AAO).  The IPM, including the revised AFM chapters.
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The IPM, entitled “Notice to Applicants and Petitioners Concerning Ability to File Motions to Reopen or Reconsider; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 10.7; AFM Update AD11-09,” points out that 8 CFR § 103.3(a)(1)(iii) requires that USCIS include in a written denial of a petition or application information about whether the petitioner or applicant can appeal the decision. In addition, the IPM notes that, when available, petitioners and applicants may also file motions under 8 CFR § 103.5 to reopen or reconsider an adverse decision and advises that, although not required by law or regulation, USCIS has determined that written decisions should also include information about the opportunity to file these motions.

The IPM directs that any written decision denying a petition or application must advise the petitioner or applicant as to whether he or she may appeal the decision to the BIA or the AAO and must include the proper appeal form if the decision is appealable. Adjudicators are also advised that, if available, written denials must also advise the petitioner or applicant that he or she may file a motion to reopen, a motion to reconsider, or both within the period specified in 8 CFR § 103.5(a). Such notices are to include Form I-290B. Despite the IPM’s title, the AFM is revised throughout to reflect this guidance, not just in Chapter 10.7. The IPM, including the revised AFM chapters, is reproduced here.

The memorandum, which was posted on January 31, 2011, will be available on the website for 10 business days after posting. It is effective until further notice. USCIS states that adjudicators will use the current memorandum with the understanding that the guidance may be revised after the comment period closes. Final guidance will be issued to the field offices and service centers following review and consideration of the comments from the public.

Comments must be submitted by February 14, 2011, and should be emailed to opefeedback@uscis.dhs.gov. The title of the memorandum should be in the subject line of the email. Comments should refer to a specific portion of the memorandum, explain the reason for any recommended change, and include data, information, or authority that support the recommendation. USCIS may distribute any comments received (including any personal information and contact information) on its public website or to those who request copies.

Posted in Motion to Reconsider, Motions to Reopen | Leave a comment

BIA Overrules Matter of Shanu in Part; Finds Alien Present in U.S. Pursuant to Admission Occurring More than Five Years Before CIMT Offense Is Not Deportable

Posted on February 7, 2011 by Mike Baker

The Board of Immigration Appeals (BIA or Board) held in Matter of Alyazji, 25 I. & N. Dec. (B.I.A. Feb. 3, 2011), that, in general, an alien’s conviction for a crime involving moral turpitude (CIMT) triggers removability under INA § 237(a)(2)(A)(i) [ 8 USCA § 1227(a)(2)(A)(i)] (2006) only if the alien committed the crime within five years after the date of the admission by virtue of which he or she was then present in the U.S., thus overruling its earlier holding in Matter of Shanu, 23 I. & N. Dec. 754 (B.I.A. 2005), review granted, order vacated, 450 F.3d 578 (4th Cir. 2006), that an alien’s conviction for a CIMT supported removal under INA § 237(a)(2)(A)(i) so long as the crime was committed within five years after the date of any admission made by the alien, while leaving in place Shanu’s holding that the term “admission” used in § 237(a)(2)(A)(i) refers to adjustment of status as well as admission at the border.

The respondent was admitted to the U.S. as a nonimmigrant student in August 2001. He remained in the U.S. thereafter, and in April 2006 his status was adjusted to that of a lawful permanent resident. In January 2008, he was convicted of indecent assault under Pennsylvania law based on a 2007 offense. The Department of Homeland Security (DHS) commenced removal proceedings, and the immigration judge denied the respondent’s motion to terminate those proceedings on the ground that the indecent-assault conviction resulted from an offense committed more than five years after his “admission” as a nonimmigrant in August 2001. The IJ found that, under Matter of Shanu, the respondent was removable because he committed his offense less than five years after his “admission” to lawful permanent resident status.

INA § 237(a)(2)(A)(i) provides that an alien is deportable if he or she:

(I) is convicted of a crime involving moral turpitude committed within five years … after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed

After discussing the controversy created by Matter of Shanu’s holding that the term “admission” used in § 237(a)(2)(A)(i) refers to adjustment of status as well as admission at the border and expressing the Board’s continued concern over some of the implications of the contrary rule, the Board concluded that, in the final analysis, resolution of the case before it did not warrant disturbing its precedent holding that adjustment of status constitutes an admission. However, the Board agreed with the respondent that it misconstrued the phrase “the date of admission” when it held that that phrase encompassed the date of any admission and held instead that “the date of admission” necessarily refers to a single date in relation to the pertinent offence so that not every “date of admission” triggers the five-year clock. Finding that INA § 237(a) is focused on admission plus presence, the Board concluded that the most natural reading of § 237(a)(2)(A)(i) is that the phrase “the date of admission” refers to the date of the admission by virtue of which the alien was present in the U.S. when he or she committed his or her crime. Thus, to ascertain an alien’s deportability under § 237(a)(2)(A)(i), the Board explained that it must look first to the date when the alien’s crime was committed. If, on that date, the alien was in the U.S. pursuant to an admission that occurred within the prior five-year period, then the alien is deportable. Conversely, the alien is not deportable if he or she committed his or her offense more than five years after the date of the admission pursuant to which he or she was then in the U.S. Moreover, the Board said, under this understanding of the phrase “the date of admission,” the five-year clock is not reset by a new admission from within the U.S. (through adjustment of status). Rather, the Board explained, such an admission merely extends an existing period of presence that was sufficient in and of itself to support the alien’s susceptibility to the grounds of deportability.

Applying this ruling to the respondent’s case, the Board concluded that, inasmuch as the respondent committed his offense more than five years after his “date of admission (August 2001),” he is not deportable even though the Board would treat him as having been “readmitted” by means of adjustment of status in April 2006. That readmission did not reset the five-year clock because it added nothing to the deportability inquiry. Accordingly, the appeal was sustained and the removal proceedings terminated.

Board Member Lauri S. Filppu wrote the opinion for the three-member panel, which included Board Members Roger Pauley and Linda S. Wendtland. Wayne Sachs, Philadelphia, Pennsylvania, represented the petitioner. James A. Lazarus, Appellate Counsel, appeared for the government. Emily Creighton, American Immigration Council, Washington, D.C., filed an amicus curiae brief.

Posted in BIA, Board of Immigration Appeals | Leave a comment

Seventh Circuit finds BIA summary affirmance procedure to benefit noncitizens and not just DHS

Posted on January 28, 2011 by Mike Baker

Ward v. Holder No. 10-2063 United States Court of Appeals for the Seventh Circuit 2011 U.S. App. Lexis 1184 (January 21, 2011)

A petition for review, by natives and citizens of Philippines, a BIA’s affirmance of an IJ’s finding that petitioners are removable from the United States under 8 U.S.C. section 1227(a)(1) and ineligible for cancellation of removal under 8 U.S.C. section 1154(a)(1)(A)(iii), is denied as, while it may be prudent to require that certain appeals to the BIA be adjudicated by a three-member panel instead of a single member acting alone, the BIA did not violate the review procedures set forth in section 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three. 

Ms. Ward and her daughter entered the United States on a K visa march 2004. Ms. Ward married her U.S. citizen fiancé May 2004. The marriage dissolved shortly thereafter without a filing of an adjustment of status application. Ms. Ward was placed in removal proceedings November 2006. Ms. Ward submitted a VAWA self petition which was denied April 2007. In December 2008 an immigration judge denied her application for VAWA cancellation finding that Ms. Ward was by “clear and convincing evidence” ineligible for cancellation. The BIA affirmed the IJ’s decision on March 31, 2010; a single board member issued a three page decision.

Ms. Ward’s counsel appealed to the Seventh Circuit arguing that the lengthy opinion demonstrated that the board member went beyond the scope of his power to affirm, modify, or remand an immigration decision in a “brief order” pursuant to 8 CFR Sec. 1003.1(e)(5). In other words, if the case merited a decision of such length, then it merited a three-judge panel review.

The Seventh Circuit in Martinez-Camargo v. INS 282 F.3d 487 (7th Cir. 2002) established a two-pronged test to evaluate whether the failure to adhere to an immigration administrative guideline rendered the underlying action taken invalid. The first prong is to ask whether the regulation in question serves a “purpose of benefit to the alien.” The government in the present case argued that Sec. 1003.1(e)(5) was a case management regulation to help the Board handle cases and therefore not intended to benefit the alien. The Seventh Circuit disagreed stating that “The fact that the presence of a ‘need to review a clearly erroneous factual determination’ is a basis for three-member panel review underscores that the regulations were designed in the interest of justice as well as efficiency.”

The second Martinez-Camargo prong requires the court to determine whether the alleged violation of the regulation set forth therein prejudices the petitioner. The Circuit found that there was neither prejudice nor a violation. 8 CFR Sec. 1003.1(e)(5) has been found not to be prejudicial in general. As to the plaintiff’s contention that the fact that the BIA board member issued a longer than average decision was not conceivable under the regulatory scheme, the circuit countered that “To require referral to a three-member panel in each case that lends itself to more than a cookie-cutter order would be contrary to the plain language of Sec. 1003.1(e).”
______________________________
WARD v. HOLDER

Elizabeth P. WARD, individually and as parent and natural guardian to Estefanie Ebrada Cainto, a minor child, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 10-2063.

Argued Nov. 4, 2010. — January 21, 2011
Before BAUER, MANION and HAMILTON, Circuit Judges.

Daniel P. Cory, Plews, Shadley, Racher & Braun, South Bend, IN, for Petitioners.Timothy G. Hayes, Department of Justice, Washington, DC, for Respondent.

Petitioners seek review of a decision of the Board of Immigration Appeals (the “BIA”) upholding an immigration judge’s finding that they are removable from the United States under 8 U.S.C. § 1227(a)(1) and ineligible for cancellation of removal under 8 U.S.C. § 1154(a)(1)(A)(iii). Petitioners contend that a single member of the BIA issued an improper written opinion that went beyond the scope of an individual BIA member’s power to affirm, modify, or remand an immigration judge’s decision in a “brief order” pursuant to 8 C.F.R. § 1003.1(e)(5). This court’s jurisdiction over final orders of removal is governed by 8 U.S.C. § 1252. The written order issued by the BIA on March 31, 2010 constitutes a final order of removal under 8 C.F.R. § 1003.1(d)(7); therefore the case is properly before this court.

I. BACKGROUND

Petitioner Ward and her daughter Cainto, natives and citizens of the Philippines, entered the United States in March 2004 on non-immigrant K visas. Ward entered on a K-1 visa as the fiancée of a United States citizen and Cainto entered on a K-2 visa as a minor child accompanying her mother to the United States.

Ward married her citizen fiancé in May 2004. The marriage dissolved shortly thereafter and Ward never applied for permanent resident status based upon her marriage. In November 2006, the Department of Homeland Security (“DHS”) ordered petitioners to appear before an immigration judge to explain why they should not be removed from the United States for having overstayed their visas. Prior to her removal hearing, Ward petitioned DHS for an immigrant visa under 8 U.S.C. § 1154(a)(1)(A)(iii), a statute which enables the former spouse of a United States citizen who was subjected to battery or extreme cruelty to remain in the United States. DHS denied Ward’s petition for this special visa in April 2007. In December 2008, an immigration judge conducted a merits hearing to adjudicate whether petitioners were removable and, if so, whether their application for cancellation of removal was properly denied. The immigration judge found that removability had been established by evidence that was “clear and convincing” and that petitioners were ineligible for cancellation of removal. The BIA affirmed in a three-page decision issued by a single member on March 31, 2010.

II. DISCUSSION

Petitioners urge us to remand their case to the BIA with instructions to review their appeal in a three-member panel. In their view, the order issued by a single member pursuant to 8 C.F.R. § 1003.1(e)(5) overstepped the BIA’s own bounds for reviewing immigration appeals in such a manner. For the reasons described below, we decline to grant petitioners the relief they seek in this matter.

We begin with the question of jurisdiction. Only constitutional claims and questions of law properly raised in connection with an order of removal are reviewable. 8 U.S.C. § 1252(a)(2)(D). Legal questions include “challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision, claims that the BIA misread its own precedent or applied the wrong legal standard, or claims that the BIA failed to exercise discretion at all.” Patel v. Holder, 563 F.3d 565, 568 (7th Cir.2009). We find that the question raised by petitioners is a legal one, since it involves interpretation of the guidelines set for review of immigration appeals under 8 C.F.R. § 1003.1(e).

In the immigration context, a two-pronged analysis governs whether failure to adhere to an administrative guideline renders the underlying action taken invalid. First, the regulation in question must serve a “purpose of benefit to the alien.” Martinez-Camargo v. INS, 282 F.3d 487, 491 (7th Cir.2002) (quoting Matter of Garcia-Flores, 17 I. & N. Dec. 325 (B.I.A.1980). If the regulation is found to serve a purpose of benefit to the alien, the action is then invalid only if the violation “prejudiced the interests of the alien protected by the regulation.” Id. As the BIA itself put it in Garcia-Flores, “where an entire procedural framework, designed to insure the fair processing of an action affecting an individual is created but then not followed by an agency, it can be deemed prejudicial.” Garcia-Flores, 17 I. & N. at 329. The analysis adopted in Martinez-Camargo endeavors to strike a balance between “recognizing the need for administrative agencies to follow their own rules” and acknowledging “the practical reality that not every agency violation impacts an alien’s substantive rights.” Martinez-Camargo, 282 F.3d at 491. In order to assess whether the regulation serves a purpose of benefit to the alien, we must first look to the language of 8 C.F.R. § 1003.1.

Section 1003.1 of Title 8 of the Code of Federal Regulations governs the organization, jurisdiction, and powers of the BIA. Under subsection (e)(3), a single board member is initially assigned to an appeal using the BIA’s case management system. The member assigned to that appeal is then vested with the authority to determine how it should be handled by the BIA. The member may summarily dismiss the appeal once the record is complete or may elect to have the case decided on the merits. A decision on the merits is issued in one of three ways. In the most straightforward cases, a formulaic “affirmance without opinion” is issued by the member pursuant to subsection (e)(4). In cases requiring more in-depth analysis, the member may issue a brief order pursuant to subsection (e)(5) or designate the appeal for review by a three-member panel pursuant to subsection (e)(6). The default is single member review. (“[T]he Board member shall issue a brief order ․ unless the Board member designates the case for decision by a three-member panel under paragraph (e)(6)․” 8 C.F.R. § 1003.1(e)(5) (emphasis added).

Various circumstances set forth in subsection (e)(6) provide a basis for referral of an appeal to a three-member panel. These circumstances include the need to settle inconsistencies among rulings of different judges, the need to establish precedent, the need to review a decision not in conformity with the law, and the need to review a clearly erroneous factual determination by a judge. 8 C.F.R. § 1003.1(e)(6). While we agree with the respondent that a “designed effect” of the case management provisions set forth in § 1003.1(e) is to assist the BIA in managing its caseload, we find that the provisions nonetheless serve a purpose of benefit to the alien. Though settling inconsistencies and establishing precedent undoubtedly assists the BIA in managing its caseload, such action is also designed to rectify errors below that may have unfairly prejudiced an alien. The fact that the presence of a “need to review a clearly erroneous factual determination” is a basis for three-member panel review underscores that the regulations were designed in the interests of justice as well as efficiency.

Having found that § 1003.1(e) serves a purpose of benefit to aliens, we are left to consider whether a violation of the regulations set forth therein prejudiced petitioners. Since we have held that a streamlined review process withstands constitutional challenges on due process grounds1 , absent a violation of the applicable streamlining procedures, petitioners cannot be entitled to relief.

The § 1003.1(e) streamlining procedures afford the single member initially assigned to any given appeal significant discretion. Prior to the enactment of subsection (e)(5) in 2002, a single member could only affirm without opinion. By adopting subsection (e)(5), the drafters intentionally expanded single member review. Subsection (e)(5) now gives BIA members the power to modify and remand the decisions of immigration judges in their sole discretion. It also confers upon them the right to explain their decisions if they don’t feel a formulaic disposition of the appeal is appropriate. While subsection (e)(5) provides that a single member may refer an appeal to a three-member panel, this court has not interpreted the subsection to require such a referral. See Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir.2006). The fact that petitioners’ appeal may have been eligible for review by a three-member panel under the standards of the BIA’s case management plan but was instead reviewed by a single member acting alone is irrelevant. In our view, it is apparent from the plain language of § 1003.1(e) that discretion in these matters is left to the panel member assigned to the case.

The heart of petitioners’ argument is that the decision issued by a single BIA member in the case was not a “brief” order, as the language of subsection (e)(5) describes. Because the decision was perhaps lengthier than the average single-member decision, they argue the decision could only have appropriately been rendered by a three-member panel. This dogged focus on what is or is not “brief” provides no substantive evidence of abuse of discretion under the guidelines. To require referral to a three-member panel in each case that lends itself to more than a cookie-cutter order would be contrary to the plain language of § 1003.1(e). It would also “greatly weaken the designed effect [of the regulations] by encouraging BIA members to ignore the subsection (e)(5) procedure altogether and send anything requiring elaboration to a three-member panel.” Id. at 692. We find that the language of 8 C.F.R. § 1003.1 is sufficiently clear in allowing a single member of the BIA to issue an order such as the one rendered in petitioners’ case. Ergo, we cannot find that the BIA violated the review procedures set forth in § 1003.1(e) when a single member rendered a decision on petitioners’ appeal in his discretion without referring it to a panel of three. Having found no violation, we need not consider whether petitioners were prejudiced by the way the appeal was handled.

III. CONCLUSION

While it may be prudent to require that certain appeals to the BIA be adjudicated by a three-member panel instead of a single member acting alone, we leave it to the drafters of the regulations to enact such a change if they find it to be necessary. In so doing, we preserve the spirit of judicial restraint that has long guided appellate review of administrative agency rules. Petitioners’ request to have their appeal remanded for further proceedings before a three-member panel of the BIA is Denied.

FOOTNOTES

1. See Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir.2006) (citing Georgis v. Ashcroft, 328 F.3d 962 (7th Cir.2003)).

Posted in 7th Circuit, 7th Circuit Cases- Aliens | Leave a comment

Approval of Petitions and Applications after the Death of the Qualifying Relative

Posted on January 27, 2011 by Mike Baker

U.S. Citizenship and Immigration Services Office of the Director

December 16, 2010 PM-602-0017 Policy Memorandum
Approval of Petitions and Applications after the Death of the Qualifying Relative

The DHS had determined that if the petitioner died before a case was complete the beneficiary was not permitted to receive the benefit of the petition. The immigration law was changed to allow the beneficiary in such circumstance to obtain the benefit through a ‘qualifying relative’ of the deceased petitioner.

The change in the law permits a visa petition or a refugee/asylee and adjustment to be approved if the beneficiary:

  • Resided in the United States when the qualifying relative died;
  • Continues to reside in the United States on the date of the decision on the pending petition or application; and

is the beneficiary of at least one of the following:

  • a pending or approved immediate relative visa petition;
  • a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;
  • a pending or approved employment-based visa petition;
  • a pending or approved Refugee/Asylee Relative Petition; or
  • an alien admitted as a derivative “T” or “U” nonimmigrant; or
  • a derivative asylee .

It is not specified by the law as to who is the ‘qualifying relative’ but USCIS infers that is an individual who, immediately before death, was:

  • petitioner or principal beneficiary in a family-based immigrant visa petition or
  • principal beneficiary in an employment-based visa petition case; or
  • petitioner in a refugee/asylee relative petition;
  • principal alien admitted as a T or U nonimmigrant; or
  • principal asylee, who was granted asylum.

To avoid having a public charge inadmissibility ground, most immediate relatives and family-based immigrants, and some employment-based immigrants, must file an affidavit of support on their behalf that meets the requirements. If, after the death of a qualifying relative, a visa petition is approved or not revoked, then another individual who qualifies as a “substitute sponsor” must submit an, Affidavit of Support. If the alien is not required to have a legally binding affidavit of support, then there is no need for a substitute sponsor to submit an affidavit of support.

Posted in Adjustment of Status | Leave a comment

HB 2281 (you know, Arizona’s other new racist law) Ethnic Chauvinism

Posted on January 14, 2011 by Mike Baker

Chicano Studies Teach “Ethnic Chauvinism,” Says AZ School Chief Tom Horne
HB 2281 (you know, Arizona’s other new racist law), the one ostensibly meant to protect American students from anti-American curriculum in the state’s public schools. The law forbids any public school course that does any of these things: encourages students to “resent or hate other races or classes of people; promote[s] the overthrow of the United States government; promote[s] resentment toward a race or class of people” or “is designed primarily for pupils of a particular ethnic group” or “advocate[s] ethnic solidarity instead of the treatment of pupils as individuals.”

Its champion is Arizona’s new attorney general, Tom Horne. As the state superintendent he set aside Tucson’s ethnic studies courses for elimination and made it his mission to outlaw the program’s Mexican-American studies courses, even though educators argued that students who took the classes graduated at higher rates than students who didn’t. The history and English electives put special emphasis on Latino history in the U.S., one which happens to include racism, oppression, exploitation and exclusion. Horne has repeatedly said these classes teach kids “ethnic chauvinism.”

HB 2281 is full of transparently coded language. Nonetheless it falls on the shoulders of whoever wants to challenge the underlying assumptions within it to unpack it all.

Posted in Index | Leave a comment