NW AILA CLE Seattle, WA. Identifying Relief for Clients in Removal Proceedings

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1 NW AILA CLE Seattle, WA Identifying Relief for Clients in Removal Proceedings This panel is about weighing the options for clients in removal proceedings, and in particular choosing between consular processing and relief that might be obtained in the U.S. We are using the hypothetical of Marco to illustrate the considerations and trade-offs that can come into play. Hypothetical: Hypo 1--- Marco was born in El Salvador. He entered the U.S. without permission at age 3 (1989). When he was 10 years old (1996), Marco returned to El Salvador with his mother who was then a Lawful Permanent Resident and now a naturalized U.S. citizen. Marco again entered the U.S. without permission at age 14 (2000) and he has remained in the U.S. since. He registered and was granted initial TPS in 2001, but failed to re-register after he married a U.S. citizen. Marco had been issued a Notice to Appear in 2009, after an assault 4 conviction in Washington, but his removal proceedings had been administratively closed because a notario filed a Form I- 130 petition for him (after 4/30/2001), through his U.S. citizen wife, and the petition was approved. The case has since been processed and ready to be transferred to the U.S. consulate. Marco is now (2018) back in recalendared removal proceedings. He has schizophrenia, though it is under control with medication. Marco was recently arrested while ICE was looking for someone else. ICE ran his license plate and WA state shared some information, including his conviction and his country of birth. Marco has his second MCH next week, and wants to hire you. Sometimes when we jump into screening for relief, we can overlook other, threshold arguments. In this case, we would briefly consider whether Marco was a U.S. citizen through his mother, which in our hypo we re stating he is not. We would also briefly consider whether there was a suppression issue. We think Marco has a complicated suppression argument, and after consulting with the client, we decide not to go forward with the suppression argument in light of eligibility for other relief. In the Ninth Circuit, we need to show an egregious Fourth Amendment violation, which allows us to suppress evidence obtained by deliberate violations of the Fourth Amendment, or by conduct a reasonable officer should have known is in violation of the Constitution. See Sanchez v. Sessions, 870 F.3d 901, 910 (9th Cir. 2017). Given that Marco had prior contact with immigration, not limited to benefits applications, we would be arguing for a more attenuated extension of the fruit of the poisonous tree. Also, there is the added complication of whether WA State was violating state law in releasing his information. The AIC memo on suppression is a useful resource for analyzing these cases. In Marco s case, we also spot the competency issue. The BIA has held that the test for March 15-16, 2018 Page 1 of 6

2 determining whether a person is competent to participate in immigration proceedings is whether he or she has a rational and factual understanding of the nature and object of the proceedings, can consult with his or her representative, and has a reasonable opportunity to examine and present evidence and cross-examine witnesses. See Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). Marco s past schizophrenia would likely be enough indicia of incompetency to raise the issue. While neither party has to burden to prove competency, Matter of J-S-S-, 26 I&N Dec. 679 (BIA 2015), it is worth considering whether Marco needs any safeguards to ensure that any hearing is full and fair. Does Marco have trouble testifying? Is there some accommodation that would enable him to testify more clearly? Would it be a violation of the Rehabilitation Act (the Federal ADA analog) to fail to accommodate Marco s disability? The BIA has increasingly recognized that the IJs appropriately put safeguards into place to enable hearings to go forward. See Matter of M-J-K-, 26 I&N Dec. 773 (BIA 2016); Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015). Balanced against this is delaying a hearing - if we know the judge would set a competency hearing for 2 years later, we might just want to argue accommodations and safeguards in a pre-hearing statement, for example. In this hypo, we want to go forward as soon as possible with adjustment, which we think he is eligible for, and therefore do not request a separate competency hearing. We also judge that, medicated, Marco is fully able to participate in removal proceedings (and maybe we don t want to highlight the issue given the adjustment). Jumping to relief, our first thought is to take advantage of Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), which held that TPS is an admission for purposes of 245(a) adjustment. Otherwise, the requirements of INA 245(a) are still in place for Marco, so we need to evaluate his eligibility to adjust. The Court in Ramirez also did not address whether the applicant needed to currently be in TPS status, or file the I-485 adjustment application while in TPS status. Since Marco s TPS has expired, we think the prudent route is to re-apply for TPS and then file the I An applicant can re-apply for TPS (or renew an application after a TPS denial) before the IJ, and we think Marco should do this. See Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007). Note that the BIA has held that simply being in TPS status is not a ground to terminate proceedings. Matter of Sosa-Ventura, 25 I&N Dec. 391 (BIA 2010). We would argue that the late-renewal issues are less problematic before the IJ than USCIS, and would tend to pursue both TPS and AOS before the IJ, assuming ICE would not terminate proceedings to permit adjustment. Hypo 2 -- You determine Marco is not eligible for COR, does not have a strong asylum application (1+ year since last entry), and we re taking TPS/adjustment off the table (say he never initially registered or is ineligible). Marco decides to pursue consular processing. You file a motion for administrative closure (a second time) to file a provisional waiver (Form I-601A) and consular process. The Immigration Judge denies a second administrative closure and instead issues a voluntary departure. Should you file an appeal? Is the VD pre or post-conclusion? Page 2 of 6 March 15-16, 2018 Page 2 of 6

3 If Marco decides he wants to pursue consular processing, we would have to determine his eligibility and act quickly in communicating with the Department of State s National Visa Center (NVC). Marco has an already approved family petition, filed on his behalf by his U.S. citizen wife, and it seems the case is ready to be transferred to the U.S. consulate. We would communicate to NVC that Marco will be pursuing Form I-601A, provisional waiver, pursuant to 8 CFR 212.7(e)(1), (4)(iv), and ask that the case be placed on hold. At Marco s next MCH the immediate step would be to ask the IJ for administrative closure to file Form I-601A. Note that Marco s removal proceedings had been previously administratively closed. Because USCIS has exclusive jurisdiction to adjudicate and decide provisional waivers and you can demonstrate his eligibility for Form I-601A, the IJ can review and decide to again administratively close Marco s case, even if ICE opposes. See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (nonexhaustive factors for an IJ and the BIA to consider). But also note that the BIA held in Matter of W-Y- U- that the primary consideration for an IJ in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of W-Y- U -, 27 I&N Dec. 17 (BIA 2017). As a side note, in a recent case, Gonzalez-Caraveo v. Sessions, ---F.3d --- (9th Cir. 2018), 2018 WL , the 9th Circuit held that the it has jurisdiction to review administrative closure decisions. Form I-601A waives only the unlawful presence ground of inadmissibility, INA 212(a)(9)(B)(i), and it requires that the applicant demonstrates extreme hardship to a qualifying relative, only to a U.S. citizen or LPR spouse or parent. See 8 CFR 212.7(e). The INA does not define extreme hardship. The BIA has stated that extreme hardship is not a definable term of fixed and inflexible meaning, and that establishing extreme hardship is dependent upon the facts and circumstances of each case. See Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (describing factors to be considered in extreme hardship analysis), aff d, Cervantes- Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). The ILRC practice advisory on Form I-601A is a useful resource for analyzing these cases. Today, at least in the Seattle Immigration Court, ICE is opposing administrative closure and suggesting the IJ grants voluntary departure, 8 CFR At least one IJ is setting Individual Hearings in such cases to discuss whether an exercise of discretion is warranted and practitioners are being asked to present arguments on their client s eligibility for a provisional waiver. If administrative closure is granted and a provisional waiver is subsequently granted while a case is administratively closed, the applicant must recalendar proceedings and ask the court to either terminate proceedings or grant voluntary departure. But in current times ICE is opposing termination of removal proceedings and requesting the IJ grants voluntary departure. When voluntary departure is the only relief the IJ is willing to grant, it is important to revisit the case with your client and decide whether an appeal is the next step. Practitioners should be sure to request post-conclusion voluntary departure (INA 240B(b)), rather than pre-conclusion (INA 240B(a)) if the client wishes to appeal the IJ s decision. Page 3 of 6 March 15-16, 2018 Page 3 of 6

4 Hypo 3 - You explain to Marco his option to appeal the Immigration Judge s decision. He decides not to appeal and you explain the consequences of failure to depart. Marco is MIA and not returning your calls to confirm he has plans to depart. You need verification of departure to continue consular process. time passes Marco called you today. He did not depart on time and is asking for help because he is now detained in Tacoma on ICE custody. Marco wants to know if he can continue with his consular processing case. You visit Marco in the detention center. Since you last saw him, family members in El Salvador were kidnapped and held ransom part of an old land dispute between his family and a neighbor. He was desperate for work to pay the ransom, and joined a farm crew. He and other noncitizens were bussed to a remote location, their documents were taken, they were paid a fraction of a salary, beaten when they complained, and then ICE showed up, as was threatened. Most practitioners would spot a potential U visa (if we can report and get a certification) as well as a possible asylum argument. Note that a worsening of conditions can constitute changed country conditions - so Marco s argument is not defeated simply by the fact that there is a history of issues around land. See Vahora v. Holder, 641 F.3d 1038 (9th Cir. 2011). Marco would need to file a motion to reopen his removal proceedings to pursue asylum, withholding, and CAT relief. The U visa could be pursued even if Marco was removed from the U.S. Indeed, this is often the argument that ICE makes in denying stays for persons with pending U visas - they can return if the U is granted. In theory, Marco could pursue his asylum case from outside the U.S., at least in the Ninth Circuit where the departure bar doesn t apply. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 936 (9th Cir. 2016) (his deportation does not bar judicial review); Reyes Torres, 645 F.3d 1073 (9th Cir. 2011); Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015) (motion to reopen can be pursued after removal). Practitioners may be less familiar with T visas. An outstanding introduction to T visa practice was recently published in Immigration Briefings (which is available in Westlaw). T NONIMMIGRANT VISAS AND ADJUSTMENT OF STATUS FOR VICTIMS OF HUMAN TRAFFICKING: A PRACTICAL GUIDE TO THE RELEVANT STATUTORY CHANGES AND UPDATED REGULATIONS, Immigr. Briefings 1 (2017). The four criteria for T visa eligibility are that the applicant: (1) is or has been a victim of severe forms of trafficking in persons; (2) is physically present in the United States or at a port of entry on account of human trafficking; (3) has complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking in persons unless the victim has not attained 18 years of age or is unable to Page 4 of 6 March 15-16, 2018 Page 4 of 6

5 cooperate due to physical or psychological trauma; and (4) would suffer extreme hardship involving unusual and severe harm upon removal. Important considerations are that USCIS has understood the present on account of trafficking to be more of a physical presence requirement. USCIS acknowledges that the trafficker need not have physically brought the person to the U.S. That said, tor the T visa, Marco must be present in the U.S. 8 CFR (g). Note that if a bona fide T visa determination is made by USCIS, then his removal is stayed. 8 CFR (d)(3). Hypo 3, continued-- Marco is concerned because the ICE officer is saying he may be deported next week to Mexico, since he claimed to be from Mexico when picked up. We are increasingly hearing examples of ICE directing people to get travel documents from countries of which they are not citizens. Do you comply with the request to apply for passports/travel documents? There are a number of issues this raises: - Failure to do so can be grounds for revoking an order of supervision - There can be criminal exposure - Obtaining a passport is technically re-availing yourself of your country s protection - You re making it easier for ICE to deport you Technically, the IJ needs to follow the designation process outlined in the statute. They can t just pick countries out of the blue to deport you to. See Hadera v. Gonzales, 494 F.3d 1154 (9th Cir. 2007). In Marco s case, should ICE actually try to remove him to Mexico, there might be several arguments. First, ICE s concession in removal proceedings, that El Salvador was the designated country of removal, citizenship, and nationality, are binding judicial admissions under Ninth Circuit case law. See Cinapian v. Holder, 567 F.3d 1067 (9th Cir. 2009); see also Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir.2008). Second, ICE s request to designate Mexico, without following the statutory designation process or making the required factual findings, is contrary to Hadera v. Gonzales, 494 F.3d 1154 (9th Cir. 2007). Third, ICE s burden under Ninth Circuit case law is to show that any information regarding nationality and designation was unavailable at the time of the earlier. See Ramon-Sepulveda v. INS, 743 F.2d 1307 (9th Cir. 1984). Fourth, while not relevant in Marco s case, a noncitizen must be given the opportunity to raise the issue of whether they fear persecution or torture in any other country to which ICE seeks to deport the person, particularly when they didn t have the opportunity or notice to argue that before the IJ. Page 5 of 6 March 15-16, 2018 Page 5 of 6

6 If Marco is seeking to stay in the U.S. while pursuing these forms of relief, he will need to reopen proceedings or obtain a stay. For a U or T, an applicant would be looking to file the I-246 stay request with ICE. For motions to reopen (say particularly for asylum, but perhaps arguments could be made for Us and Ts), an applicant would be filing the motion to reopen and request for stay with the IJ or BIA, depending on where the case was last heard. Recently, we have seen cases across the country where ICE has moved very quickly to remove people with old final orders of removal, often who had been reporting in on orders of supervision for many years. Many of these people are from countries where they may have asylum claims now based on changed circumstances (Iraq, Indonesia, Somalia). In the case of Cambodians, the law may have changed relating to the immigration consequences of criminal convictions or the availability of relief, such as 212(c). It is heartening that courts around the country have stayed removal to permit these individuals to file motions to reopen. See Hamama v. Adducci, 261 F.Supp.3d 820 (E.D. Mich. 2017) (Iraqis); Chhoeun v. Marin, 2018 WL (C.D. Cal. Jan. 25, 2018) (Cambodia); Devitri v. Cronen, 2018 WL (D. Mass. Feb. 1, 2018) (Indonesia). These cases may present a window and roadmap where courts had frequently rejected such stays under INA 242(g), 8 USC 1252(g) (bar to judicial review of execution of removal orders). The strongest arguments may be the suspension clause and when the applicant is given no opportunity to raise the legal claim. Marco s failure to voluntarily depart within the period granted by the IJ also suggests we should revisit his option of pursuing Form I-601A/ consular process all over again. Marco s failure to depart during the voluntary departure period means he now has an outstanding final order of removal. Form I-601A is available to those with final orders only if they have a conditionally approved Form I-212, application for permission to reapply for admission, at the time of filing the provisional waiver. See 8 CFR 212.7(e)(4)(iv). In this series of hypotheticals, Marco s options for relief were fluid and at times many seemed possible. To successfully identify relief for clients in removal proceedings entails conducting a thorough analysis of their entire history (immigration, criminal, familial, etc.), determining and revisiting options that could lead to our clients securing lawful status, and being cognizant that things and circumstances change and that they and the outcomes are often out of our control. Chris Strawn Malou Chavez Northwest Immigrant Rights Project February 15, 2018 Page 6 of 6 March 15-16, 2018 Page 6 of 6