Do Federal Courts Have Jurisdiction over Civil Actions under the Federal Tort Claims Act by Immigrants Alleging Wrongful Removal from the United States?

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.

The Issue

Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.

In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.

Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.

The Circuit Split

Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?

In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.

Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.

The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.

Looking Forward

Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.

Is the Board of Immigration Appeals Entitled to Chevron Deference When Interpreting What Constitutes Child Abuse?

BACKGROUND

Chevron U.S.A., Inc. v. Natural Resources Defense Council established a framework for determining whether the decisions of administrative bodies are entitled to judicial deference. In very simplified terms, Chevron states that, when a statute is ambiguous, the decisions of administrative agencies should be granted judicial deference unless they are arbitrary or capricious. This determination is made in two steps. First, the court must determine whether the plain language of the statute in question is ambiguous. Second, if the language is determined to be ambiguous, the court must determine whether the administrative agency’s decision was arbitrary or capricious.

The Board of Immigration Appeals (BIA) is the “highest administrative body for interpreting and applying immigration laws,” and has nationwide jurisdiction to hear appeals of decisions rendered by immigration judges. In this capacity, the BIA often finds itself interpreting the Immigration and Naturalization Act (INA) during immigration proceedings.

In the Ninth Circuit case Martinez-Cedillo v. Sessions (2018), Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code §273a(a). Mr. Martinez-Cedillo was ordered removed from the United States on the grounds that his conviction constituted “a crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). On appeal, the primary issue—and the source of the circuit split—was whether BIA’s interpretation of “child abuse, child neglect, or child abandonment,” as written in the INA, was entitled to Chevron deference.

THE NINTH CIRCUIT’S CHEVRON ANALYSIS

The Ninth Circuit held, in a 2-1 decision, that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” was entitled to Chevron deference. Writing for the majority, Judge Bybee acknowledged that, regarding Chevron Step One, “every circuit court to have considered [the definition of “a crime of child abuse, child neglect, or child abandonment] noted its ambiguity,” and proceeded to Chevron Step Two without much discussion. Under Chevron Step Two, Judge Bybee determined that the BIA’s interpretation was “reasonable and entitled to deference.”

In dissent, Judge Wardlaw characterized the BIA’s interpretation as “unreasonable,” noting that the BIA’s definition had “inexplicably changed its generic definition three times in the past two decades.” Judge Wardlaw, quoting the Supreme Court in Sessions v. Dimaya (2018), further stated that the BIA’s “generic definition of the ‘crime of child abuse’ is so imprecise, it violates ‘essential’ tenets of due process, most specifically ‘the prohibition of vagueness in criminal statutes.’”

THE CIRCUIT SPLIT

Here, the Ninth Circuit joins the Second, Third, and Eleventh Circuits in holding that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” should be granted judicial deference under Chevron. On the other hand, the Tenth Circuit held that the BIA’s interpretation should not be granted judicial deference.

In the Second Circuit case Florez v. Holder (2015), the BIA determined that Nilfor Yosel Florez’s action of driving while intoxicated with children in the back seat of his vehicle constituted “a crime of child abuse,” noting that the BIA’s interpretation of what constituted “a crime of child abuse” was “intentionally broad.” Of note in this case, Florez’s children were not harmed during the incident that led to his arrest and order of removal. The court determined that the BIA’s determination that actual injury to a child was not a required element of this definition was a reasonable one.

In the Third Circuit case Mondragon-Gonzales v. Attorney General of the United States (2018), Judge Vanaskie noted that the portion of the INA that listed general categories of crimes “was enacted…as part of an aggressive legislative movement to expand the criminal grounds of deportability … and to create a comprehensive statutory scheme to cover crimes against children in particular.” Similarly, in the Eleventh Circuit case Martinez v. United States Attorney General (2011), the court granted deference to the BIA’s determination that proof of actual harm or injury to the child by the petitioner was not required.

But the Tenth Circuit disagreed—in Ibarra v. Holder (2013), the court refused to grant deference to the BIA’s determination that a Colorado conviction for “child abuse—negligence—no injury” constituted a “crime of child abuse, child neglect, or child abandonment” under the INA. The court noted that the plain language of the statute applied only to crimes, but that not all states criminalize certain acts of child neglect, particularly in the absence of mens rea beyond criminal neglect or in the absence of proof of actual injury to the child. The court reasoned that in effect, the BIA’s interpretation of “a crime of child abuse” and its subsequent application would vary from one jurisdiction to another, depending on whether certain acts of child neglect were criminalized.

LOOKING FORWARD

With at least five circuits speaking to whether the BIA’s interpretation of “a crime of child abuse” should be granted judicial deference, the issue is ripe for review by the Supreme Court. However, these decisions point to a larger problem—the vagueness of some of the language in the INA combined with the latitude granted to the BIA, which often acts as the final voice on deportation decisions, to make broad interpretations of certain portions of the statute. It is especially important to note that these immigration decisions are not limited to undocumented immigrants—for example, Mr. Florez, the defendant in Florez, was a legal permanent resident at the time that his removal was ordered. In today’s climate, where deportation is all but actively encouraged, two additional steps besides eventual Supreme Court review would be particularly helpful: (1) clarification of the language of the statute by Congress, and (2) closer scrutiny by courts as to whether the BIA’s interpretations—not just limited to the BIA’s interpretation of child abuse—have become overly broad, especially in light of the administration’s anti-immigrant stance.

Do Potential Deportees Have A Constitutional Right To Be Made Aware Of Discretionary Relief From Removal?

The Issue

Section 212(h) of the Immigration and Nationality Act (INA) lists reasons and conditions under which a potential deportee can request discretionary relief from removal. However, not all persons who are subject to deportation know that the possibility of relief is available. Because granting relief from removal is a wholly discretionary decision, deportees who fail to present their eligibility during their removal proceedings might not receive such relief.

Emilio Estrada is a Mexican citizen who was charged with illegal re-entry after deportation, and subject to deportation proceedings.  Estrada’s attorneys failed to advise him about his possible eligibility for relief from deportation, and Estrada did not request discretionary relief. Estrada later collaterally attacked his deportation order, claiming that this failure constituted a violation of his due process rights. In United States v. Estrada (2017), the Sixth Circuit disagreed. Relying on precedent, the court stated that there is no constitutionally-protected right to be informed of relief from deportation because such relief is discretionary. The Sixth Circuit joins six of its sister circuits in this holding. But the Second and Ninth Circuits have held that there is a constitutionally-protected right to be informed of potential relief from deportation, and that a failure by an attorney or an immigration judge to make the potential deportee aware of such relief constitutes a due process violation.

The Split

In Estrada, the Sixth Circuit followed circuit precedent from Huicochea-Gomez v. INS (2001), stating that “an individual has no constitutionally-protected liberty interest in obtaining [or being informed of] discretionary relief from deportation.” The court further stated that the discretionary nature of the relief does not “create a protectable liberty or property interest,” and without such an interest, a due process violation cannot occur.

The Sixth Circuit joins the majority of its sister circuits in holding that an undocumented immigrant does not have a constitutional right to be informed of eligibility for discretionary relief:

  • In Smith v. Ashcroft (2002), the Fourth Circuit stated that “for a statute to create a vested liberty or property interest giving rise to procedural due process protection, it must confer more than a mere expectation…of a benefit. There must be entitlement to benefit as directed by statute.”
  • In United States v. Lopez-Ortiz (2002), the Fifth Circuit stated that “[discretionary relief] conveyed no rights, it conferred no status,” and its denial does not implicate the Due Process clause.”
  • In United States v Santiago-Ochoa (2006), the Seventh Circuit relied on dicta from a previous circuit decision, stating that “it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the due process clause was designed to protect.”
  • In Escudero-Corona v. INS (2001), the Eighth Circuit stated that “eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General,” and as such, did not confer a constitutionally-protected right.
  • In United States v. Aguirre-Tello (2004), the Tenth Circuit held that an undocumented immigrant’s constitutionally-protected rights only included the right to “be heard at a meaningful time and in a meaningful place, and nothing more.”
  • In Oguejiofor v. Attorney General of the United States (2002), the Eleventh Circuit held that the petitioner could not assert a due process challenge because he had “no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.”

In contrast, the Second and Ninth Circuits have held that there is a constitutional right to be advised of discretionary relief:

  • In United States v. Copeland (2004), the Second Circuit stated that “[failing] to advise a potential deportee of a right to seek…discretionary relief can, if prejudicial, be fundamentally unfair.”
  • In United States v. Lopez-Velasquez (2010), the Ninth Circuit stated that “failure to advise an alien of his potential eligibility for discretionary relief violates due process.”

Looking Forward: The Current Administration and the Role of Attorneys

The United States Supreme Court denied certiorari in United States v. Lopez-Ortiz (2002). But given the current administration’s heightened enforcement of immigration laws and the constitutional question posed by this now-current issue, the circuits — and potential deportees and their families — would benefit from a clear ruling from the Supreme Court on this issue. The Sixth Circuit’s ruling brings to the forefront an issue that could have a tremendous and life-changing impact on potential deportees. Because Estrada considers a constitutional question, rather than challenging an actual exercise of discretion, this issue should not fall prey to the bar to judicial review of discretionary immigration decisions.

Estrada, and the cases cited above raise another concern — the failure by attorneys to make their clients aware of the potential for discretionary relief, which was the grounds upon which Mr. Estrada and other potential deportees claimed that their due process rights had been violated. This is not to suggest that attorneys are outright failing their clients. The INA is a complex statute and the grounds for relief are not entirely obvious or well-publicized. Section 212(h) of the INA provides an exhaustive list in of reasons upon which a potential deportee can request relief. While the measures for relief are discretionary and do not guarantee that a person’s deportation will be suspended, attorneys who are representing potential deportees should be aware that there are federal statutory provisions that could help them more thoroughly advocate for their clients. Attorneys — and even law students — who work with undocumented immigrants and others who could be subject to deportation proceedings can take steps to educate themselves and their colleagues on these measures.

Is following procedure discretionary? Limits on the jurisdictional ban on review of discretionary immigration decisions

Issue

In the Immigration and Nationality Act (“INA”), Congress provided certain limits on a court’s jurisdiction to review discretionary decisions by the United States Citizenship and Immigration Services (“USCIS”). The INA provides that “the Secretary of Homeland Security may … for what he deems to be a good and sufficient cause, revoke the approval of any petition approved by him….” 8 U.S.C. § 1155. The substance of such discretionary decisions is not reviewable by the courts under 8 U.S.C. § 1252(a)(2)(B)(ii). The issue is whether the courts can still review the procedural basis for those discretionary decisions.

The issue arose in the context of three almost identical cases in three separate circuits. In each of the cases, the US employer of a citizen of India filed an I-140 (immigrant petition for alien worker) on the employee’s behalf. The employee then changed companies and “ported” their I-140 to their new employer under Section 105 of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”). The initial I-140s were subsequently revoked and the employees’ requests for adjustment of status denied. The employees in each case sought to appeal the decision alleging that USCIS failed to follow its own procedural regulations in revoking their I-140s.

If a Supreme Court Decision is rendered that—under the discretionary bar—courts could not review such procedural questions, procedural regulations in the immigration context, which supposedly protect the rights of immigrants, would serve as little more than suggestions. For example, in the I-140 context discussed in these cases, supposed protections like the requirement for notice and opportunity to present evidence could be unenforceable by the people affected.

Split

The split exists between the Second and Eleventh Circuits, holding that the courts have jurisdiction to hear claims that USCIS failed to follow procedural regulations, and the Eighth Circuit, holding that the courts lack jurisdiction to hear such procedural claims.

The Second and Eleventh Circuits focus on the word ‘discretionary’ in the statutory limits on jurisdiction found in 8 U.S.C. § 1252(a)(2)(B)(ii).

In Kurapati v. U.S. Bureau of Citizenship and Immigration Servs. (2014), the Eleventh Circuit reasoned that “If … USCIS failed to follow the correct procedure in revoking the I-140 petitions, that failure was not within USCIS’s discretion. § 1252(a)(2)(B)(ii) thus does not prevent judicial review of the conduct of the administrative proceedings.”

In Mantena v. Johnson (2015), the Second Circuit similarly held that “compliance with regulations establishing procedural requirements is ‘not within the discretion of the Attorney General,’ so the INA’s jurisdiction-stripping provision does not apply.”

In contrast, the Eighth Circuit ignores the word ‘discretionary’ and instead draws a distinction between reviewable and non-reviewable procedural questions.

In Rajasekaran v. Hazuda (2016), the Eighth Circuit first noted the Supreme Court’s holding that “courts review an agency’s compliance with its own regulations when … the rules were intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion….” The Eighth Circuit relied on its own precedent in drawing the distinction that “where a procedural rule is designed primarily to benefit the agency in carrying out its functions, judicial review may be circumscribed.” Without explicitly stating that the case fell into this latter category, the court implied within its ultimate holding that the court lacked jurisdiction to review what it calls the agency’s “discretionary procedural decisions.”

In short, while the Second and Eleventh Circuits uphold jurisdiction over review of compliance with procedural requirements on the grounds that following procedural regulations is not discretionary and therefore not covered by the jurisdictional ban, the Eighth Circuit denies jurisdiction over such review on the grounds that these procedural rules are merely designed to help the agency carry out its functions and are still within the umbrella of discretionary decisions covered in the jurisdictional ban.

Looking Forward

On December 5, 2016, the Supreme Court denied a petition for writ of certiorari for the Eighth Circuit’s Rajasekaran v. Hazuda decision. Therefore, it is unlikely that a resolution to this issue, in its present form, will come from the Supreme Court.

A 2017 amendment to the AC21 has presumptively resolved the confusion in I-140 revocation hearings that caused problems for the plaintiffs in the three cases discussed. However, the underlying issue of courts’ jurisdiction to hear appeals on procedural compliance is still very much alive. We may have to wait until the issue returns in another context to get a resolution.

Bill of Rights protections for all — or maybe just for some: Are non-citizens protected?

Background

In contrast with the Fifth and Sixth Amendments’ use of the words “person” and “accused,” the First, Second and Fourth Amendments’ text protects certain rights of “the people.” The Fifth and Sixth Amendments prescribe certain rights of individuals in criminal proceedings, while the First, Second, and Fourth provide rights to the public at large. This distinction affects who is protected by these amendments.

Who are “the people” protected by the First, Second and Fourth Amendments? An obvious starting point would be citizens of the United States. But what about permanent resident aliens and refugees residing in the US? What about aliens living in the US without a legal immigration status? Those on a temporary stay visa? Or other classes that may attempt to claim the right? The Supreme Court purported to answer these questions in United States v. Verdugo-Urquidez (1990). It held that the use of “people” in the Fourth Amendment, as well as in the First and Second Amendments, refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.” The problem then is determining who is part of this national community. Who is considered to have sufficient connection with the United States such that their rights are protected by the First, Second, and Fourth Amendments?

Issue

The Supreme Court has not further clarified who falls under the umbrella of “the people,” and whether the class of “people” is the same in the First, Second and Fourth Amendments. The Court, instead, has left it to lower courts to wrestle with what determines if an individual is part of the class for asserting a constitutional right.  As a result, a difficult question courts have grappled with is whether aliens unlawfully residing in the United States are part of “the people.” With over twelve million such aliens currently residing in the United States, there is a need for a definite answer on what constitutional protections they possess. The Supreme Court in Verdugo-Urquidez declined to decide this issue because “such a claim [was not] squarely before” it. The Court did, however, suggest that an alien who is in the United States voluntarily and has accepted “some societal obligations” may be considered part of “the people.”

The Split

There is a split between the Fifth and the Seventh Circuit on the issue in relation to the Second Amendment. The Fifth Circuit Court of Appeals in United-States v. Portillo-Munoz (2011) held that an alien unlawfully residing in the United States is not a member of “the people” and therefore not given the Second Amendment right to bear arms. Armando Portillo-Munoz had acquired a gun to protect his employer’s chickens from coyotes.  He had been voluntarily present, although unlawfully, in the United States. He was working a steady job, paying rent for his home, and financially supporting his girlfriend and daughter. Yet, the court denied him protection under the Second Amendment and emphasized a distinction between aliens in the United States lawfully and those in the United States unlawfully, even those with substantial connections to the United States. The Eight Circuit in United States v. Flores (2011) and the Fourth Circuit in United States v. Carpio-Leon (2012) have taken the same approach.

The dissent in Portillo-Munoz worried about the implications of the majority’s holding not just for the Second Amendment, but for the First and Fourth Amendments as well. The dissent argued that:

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo-Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable — to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances — with no recourse.

The Seventh Circuit’s decision came in United States v. Meza-Rodriguez (2015). Mariano Meza-Rodriguez was brought to the United States as a young child and had been residing unlawfully in the country since that time. The court held that an alien unlawfully residing in the United States had the Second Amendment right to bear arms. It emphasized Meza-Rodriguez’s plainly substantial connections to the United States having lived in the country for several years. Despite its holding on this issue, the court upheld a statute prohibiting aliens such as Meza-Rodriguez from possessing firearms and ammunitions because “the right to bear arms is not unlimited” and the ban on the possession of firearms by such aliens “is substantially related to the statute’s general objectives.” Ultimately, the Seventh Circuits disagreement with the Fifth Circuit was not essential to the holding of the case.

While there is not much consideration on the issue with regard to the First Amendment, several circuits have provided Fourth Amendment protections to aliens unlawfully residing in the United States and none have definitively denied the protection. The Fifth Circuit opined in Martinez-Aguero v. Gonzalez (2006) that “cases from [the Fifth Circuit] state unequivocally that aliens are entitled to Fourth Amendment protection.” More recently, during immigration proceedings against a putative alien, the Ninth Circuit stated that in such proceedings it allows for the “suppression of any evidence seized in connection with a Fourth Amendment violation that is egregious.” Armas-Barranzuela v. Holder (9th Cir. 2014). The First Circuit follows a similar approach. Garcia-Aguilar v. Lynch (1st Cir. 2015).

Looking Forward

It is difficult to say when there will be an end to the Supreme Court’s exercise in constitutional avoidance on the issue. In Hernandez v. Mesa (2017), the Court declined to address the related issue of whether a Mexican national shot at the border of the United States and Mexico could claim Fourth Amendment rights because “it is sensitive and may have consequences that are far reaching.” Something to keep an eye on is congressional action on immigration and the potential impact on the status of aliens unlawfully residing in the United States as part of “the people.” However, the legislative landscape is even more fraught with uncertainty than the judicial landscape.

Further Reading:

Mathilda McGee-Tubb, Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz, 53 B.C.L. Rev. E. Supp. 75 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/7

Notice Needed?: Courts Split on Evidentiary Notice for Asylum Proceedings

A circuit split has developed concerning whether applicants for asylum are required to receive notice of evidence needed for removal proceedings. The split centers on a provision of the Immigration and Nationality Act (INA) concerning burden of proof in granting asylum.

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

The Law

Under the Immigration and National Act, the burden of proof is on the applicant to prove that removal will result in persecution based on the individual’s race, religion, or membership in a particular social group.

The core of the split concerns differing statutory interpretations of the above section, particularly the phrase, “where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided.”

Resolving this split is essential for two reasons: (1) it concerns constitutional issues of due process and (2) it concerns public policy as the Syrian refugee crisis could greatly increase the number of asylum applications processed. Therefore, it is essential to have a clear, uniform policy.

The Split

The Ninth Circuit has interpreted the statute as unambiguously requiring the Immigration Judge (IJ) to give notice to the applicant of evidence required for removal hearings.

A plain reading of the statute’s text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.

Ren v. Holder (Ninth Circuit, 2011).

The court arrives at this interpretation primarily based on the statute’s use of the future tense.

 “Congress’s use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Here, the Act does not say “should have provided,” but rather “should provide,” which expresses an imperative that the applicant must provide further corroboration in response to the IJ’s determination. The applicant cannot act on the IJ’s determination that he “should provide” corroboration, of course, if he is not given notice of that determination until it is too late to do so.

Ren v. Holder.

In addition, the court considers the statute’s grammatical structure in determining Congressional intent.

Second, the grammatical structure of the controlling clause makes the provision’s meaning absolutely clear. The statute requires that corroborating evidence “must be provided” in the event that the IJ determines that it should be provided. Again, this language focuses on conduct that follows the IJ’s determination, not precedes it, as the phrase “must have been provided” would do, and as with the clause above, the statute’s future directed language means that the applicant must be informed of the corroboration that is required. Third, the statute goes on to excuse an applicant from satisfying the IJ’s request for corroboration if he “does not have the evidence and cannot reasonably obtain it.” This language is present-and future-oriented as well; the statute does not say “unless the applicant did not have the evidence and could not have reasonably obtained the evidence.” Therefore, if the IJ decides that the applicant should provide corroboration, the applicant must then have an opportunity to provide it, or to explain that he does not have it and “cannot reasonably obtain it.” It would make no sense to ask whether the applicant can obtain the information unless he is to be given a chance to do so.

Ren v. Holder,

In addition to textual interpretation, the court employs the canon of constitutional avoidance in construing the statute.

Moreover, even if the language had been ambiguous, the canon of constitutional avoidance requires us to come to the result discussed above. The canon “requires a statute to be construed so as to avoid serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir.2006). The REAL ID Act did not change our clear Fifth Amendment caselaw that requires a “full and fair hearing” in deportation proceedings. Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). We have previously observed that “demand[ing] [corroboration] immediately on the day of the hearing” would “raise [ ] serious due process concerns by depriving [an applicant] of his guarantee of a reasonable opportunity to present evidence on his behalf.” Marcos v. Gonzales,410 F.3d 1112, 1118 n. 6 (9th Cir.2005) A requirement that something be provided even before notice is given would raise even more due process concerns. This provides additional support for our interpretation of the statute, although we reiterate that the statutory text alone mandates our interpretation.

Ren v. Holder.

In contrast to the Ninth Circuit, the Sixth and Seventh Circuits have interpreted the statute as not requiring the IJ to give notice to the applicant of the evidence needed. The Seventh Circuit considers the statute itself provides notice to applicants of the evidence needed.

Finally, we add that the REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence.

Raphael v. Mukasey (Seventh Circuit, 2008).

The court also considers the burden that requiring notice would have on the Department of Homeland Security.

To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings-the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey.

The Sixth Circuit, in the most recent decision of the three, elected to follow the Seventh Circuit’s interpretation over the Ninth Circuit’s interpretation.

The court challenged the Ninth Circuit’s “plain reading” of the statute,

This text does not suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present. Even if it could be said that the statute is silent on the issue, and thus possibly could allow for such a construction (and we conclude it does not), it is plainly erroneous to say that the statute unambiguously mandates such notice.

Gaye v. Lynch (Sixth Circuit, 2015).

Looking Forward

This split is unlikely to be resolved until the appointment of a ninth justice to the Supreme Court. Immigration and asylum have been important issues in the 2016 presidential race. As statutory interpretation often divides the Supreme Court, it is unlikely a divided, eight-member Supreme Court will elect to review the split. Therefore, the next president is likely to appoint the justice that will make the final determination on whether applicants for asylum must be provided notice.

Ice, Ice, Baby!: A Split About Federal Jurisdiction in Expedited Removal Procedures

You Know What’s Coming…

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Under the Immigration and Nationality Act, “any alien who is convicted of an aggravated felony at any time after admission is deportable.”

Non-citizens with legal status who are convicted of an aggravated felony are afforded a hearing before an Immigration Judge. They are allowed to plead their case and have their day in court.

For non-citizens without legal status, they undergo an expedited process of removal without a hearing. This expedited process is known as administrative removal.

Administrative Removal

In administrative removal, an Immigration and Customs Enforcement (ICE) Officer examines the evidence and determines whether or not the felony occurred. If the officer believes the evidence is lacking, then the non-citizen proceeds with regular removal proceedings in front of an Immigration Judge. If the officer believes the non-citizen committed the felony, the person is served a removal notice.

The non-citizen can challenge their aggravated felony determination through the agency or through the courts. However, this removal is not reviewable by an Immigration Judge. Instead, circuit courts have the jurisdiction to review administrative removal determinations.

Recently, however, there has been confusion within the courts about whether or not a circuit court has jurisdiction to hear a challenge when the non-citizen has not exhausted all the agency remedies.

Typically, a court may review a final order of removal against a non-citizen only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). When a non-citizen has an opportunity to raise a claim in administrative proceedings but does not do so, he fails to exhaust his administrative remedies as to that claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008).

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Circuit Split

In 2015, the Fourth Circuit set out to answer the question of whether a court has jurisdiction to hear a challenge when the non-citizen has not exhausted all agency remedies. Etienne v. Lynch.

In Etienne, the Fourth Circuit had to decide whether they had jurisdiction to hear a challenge from Etienne, a non-citizen from Haiti convicted of an aggravated felony, regarding his expedited removal procedure, when he had failed to challenge the legal basis of his removal before the agency.

According to the Fourth Circuit, the answer was: yes.

The Fourth Circuit held that the appellate courts do have the authority to consider an alien’s petition for review, even if they have not exhausted administrative avenues. The court reasoned that under the current immigration regulations, non-citizens can only challenge their aggravated felony convictions on factual findings. There is no avenue for a non-citizen to challenge their conviction on legal conclusions aside from the circuit courts. Therefore, the Fourth Circuit held that it was appropriate for the circuit courts to review administrative removal determinations. The Fourth Circuit supported their decision by citing the Fifth Circuit’s decision in Valdiviez-Hernandez v. Holder, where the Fifth Circuit also held that the circuit court had jurisdiction to review an expedited removal.

However, the Fourth Circuit’s decision in Etienne, and the Fifth Circuit’s decision in Valdiviez, directly contrasts with the Eleventh Circuit’s 2014 decision in Malu v. U.S. Attorney General.

In Malu, the Eleventh Circuit held that the court lacked jurisdiction because the non-citizen failed to exhaust the administrative avenues available within the agency. The Eleventh Circuit believed that the administrative proceedings did provide an opportunity for aliens to challenge factual allegations and legal conclusions. Therefore, it held that the circuit courts do not have jurisdiction to review until the alien has exhausted all available agency remedies.

Looking Forward

As stated prior, equality and predictability are essential to the law, particularly in the immigration context, where slight differences in law may be the difference between deportation and legal residency. Thus, as long as the courts remain divided about this question of federal jurisdiction, there will be inefficiency and injustice in the immigration system. While it seems unlikely that the Supreme Court will provide clarity on this issue any time soon, a resolution is necessary in order for the immigration system to not only run more effectively, but fairly and predictably—for all parties, in all locales.

A Split that Splits: Moral Turpitude in the Circuits

Imagine: you’re a non-citizen sitting before an immigration judge, waiting to hear if the burglary you just committed means you’re going to be deported.  Then imagine your lawyer told you your chances of deportation hinge on how the immigration judge defines “moral turpitude.”

I know, right?

“Moral Turpitude”

It sounds bad, huh?  Well, it’s not “meaningless,” as Judge Posner of the Seventh Circuit claimed.  Arias v. Lynch (2016).  Rather, it has many meanings, depending on which federal circuit court of appeals you ask.  Everyone recognizes that immigration law is hard.  It’s hard because you’re dealing with humans and oftentimes making decisions that have profound effects on the lives of these humans. (Thank goodness other practices of law don’t have these issues, too.)

It’s very important that our courts come to a consensus about what exactly moral turpitude means.  A lack of agreement means that a non-citizen in Illinois might be deported for the same crime that a non-citizen in Texas wasn’t deported for.  This is kind of a big deal, constitutionally speaking, because due process, equal protection, life, liberty—I think you get the point. 

The Split

The circuits are split between a two-step test and a three-step test.

The Third, Fourth, Fifth, Ninth, and Eleventh Circuits follow the two-step test, as described in Prudencio v. Holder (4th Cir. 2012):

  • (1) “[W]e first apply the categorical approach…This analysis requires that we examine the statutory elements of the crime, and not consider the facts or conduct of the particular violation at issue.”
  • (2) “[If] the categorical approach does not resolve our inquiry… we proceed under the modified categorical approach… Under the modified categorical approach, we review the record of conviction to determine whether the crime of which [the defendant] was convicted qualifies as a crime involving moral turpitude.”

The Seventh and Eighth Circuits follow the three-step test, as descried in Mata-Guerrero v. Holder (7th Cir. 2010):

  • (1) “First, the immigration judge should focus on the statute’s actual scope and application and ask whether, at the time of the alien’s removal proceeding, any actual (not hypothetical) case existed in which the statute was applied to conduct that did not involve moral turpitude, including the alien’s own conviction….
  • (2) “If that evaluation of a “realistic probability” does not resolve the question, the judge should proceed to a “modified categorical” approach, examining the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, or a guilty plea transcript….
  • (3) “Then, where those records of conviction also fail to shed light on the question, the Attorney General instructs that the immigration judge should consider any evidence beyond those records “if doing so is necessary and appropriate to ensure proper application of the Act’s moral turpitude provisions.”

Why This Matters

For non-citizens, this split can be the difference between staying in the country or being deported. Consider the Arias case linked above. In the case, the non-citizen was charged with falsely using a social security number in order to find work. The Seventh Circuit had not decided prior whether such a violation constituted moral turpitude. It noted, however, that the circuits were split on the matter:

The Fifth and Eighth Circuits have said yes (including opinions regarding the closely related subparagraph, § 408(a)(7)(A)). Guardado‐Garcia v. Holder, 615 F.3d 900, 901–02 (8th Cir. 2010); Lateef v. Department of Homeland Security, 592 F.3d 926, 929 (8th Cir. 2010) (§ 408(a)(7)(A)); Hyder v. Keisler, 506 F.3d 388, 392 (5th Cir. 2007) (§ 408(a)(7)(A)). The Ninth Circuit has said no. Beltran‐Tirado v. I.N.S., 213 F.3d 1179, 1184 (9th Cir. 2000).

Circuits are split not just on how to define moral turpitude, but on what crimes even constitute moral turpitude. This is an obvious consequence of a system of law that requires a phrase as empty as “moral turpitude” to bear a Sisyphean load. And remember: the Fifth and Ninth Circuits use the same test to define moral turpitude—that those circuits cannot decide on what crimes constitute moral turpitude underscores just how entangled and ill-defined the law has become.

Looking Forward

For a legal system that fetes both equality and predictability, the fact that neither non-citizens nor the State knows what the exact consequences are when a crime is committed is nonsensical and illogical. Non-citizens should have the heads up as to what will occur if they commit a crime.  Part of this includes defining, once and for all, what our law means by “moral turpitude.” And, if we can’t, maybe it’s time we cut the turpitudinous knot.