Lujan-Armendariz Up In Smoke: Aliens No Longer to Benefit from FFOA-Like Treatment of State Drug Convictions

En Banc Decision: Nunez-Reyes v. Holder (05-74350) (full opinion available here) overruling the Ninth Circuit’s equal protection holding in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

Many of us suspected this case was coming, but — even so – it still knocks the wind out of an immigration attorney. 

Background.  Controlled substance convictions (simple possession, under the influence, possession for sale, etc.) are by and large a disaster in immigration.  They make you inadmissible (and ineligible for a waiver of that inadmissibility except for one conviction for a very small amount of marijuana), they make you deportable, and they make you an aggravated felon (when related to sale).  In other words, they’re usually a life-ruiner. 

But ”America is a second-chance nation.”  Judge Pregerson.  To that end, the federal government enacted the Federal First Offender Act (FFOA), which allows someone convicted of a first federal controlled substance crime to eliminate that conviction for all purposes as long as they successfully complete a rehabilitation program.  Even though expungement-like post-conviction activity will not usually eliminate a conviction for immigration purposes, an FFOA expungement is actually honored. 

So then come FFOA-like state rehabilitation expungements.  Over ten years ago, California voters opted to extend FFOA-like treatment to state controlled substance convictions as well, and many other states did the same.  While the requirements for and implementation of these programs vary slightly from the FFOA, they are designed to achieve the same end: give people a second chance when it comes to minor drug possession charges. 

The question remained whether immigration would honor state FFOA-like expungement statutes as well.  In 2000, the Ninth Circuit gave us an answer: yes.  The Court held in Lujan-Armendariz v. INS that equal protection mandated state expungements for first offenders be honored for immigration purposes as well.  We, as immigration lawyers, like (well, liked…ugh) Lujan.  For our clients who got caught in 2001 with an extremely small amount of marijuana (what is now commonly referred to as a “pot ticket”), successfully completed Prop 36 diversion, and have never been involved in any other criminal activity, Lujan let them move on. 

Unfortunately, no one else on the planet agreed.  The Board of Immigration Appeals and every other circuit who has decided this issue all held that a state expungement cannot eliminate a first-offense drug possession charge for immigration.  The Ninth Circuit has now reversed itself and overruled Lujan.  The primary focus was whether there was a rational basis for Congress not including state rehabilitation programs in the statute, of which they found at least two (each of which had been articulated by other circuits).  Now, state rehabilitative expungements will not eliminate a conviction for immigration.  Rats.

The good news is that this will only apply to people who accept Prop 36 treatment after today.  The Ninth Circuit did hold that Lujan had been relied on by so many people, that it would be wrong to apply the new rule anything but prospectively.  Which — incidentally — saved my partner and I a day of pulling files to see who used to be eligible for relief from deportation.

Asylum Protection for Whistleblowers Expanded

Antonyan v. Holder (07-72719) (full opinion available here)There are five statutorily-protected grounds for asylum and for its sister withholding of removal:  race, religion, political opinion, nationality, and membership in a particular social group.  Simply put, an asylum applicant must show that he or or she has or will suffer persecution on account of one (or more) of those grounds, and that the persecutor is either the government, or someone the government is unwilling/unable to control. 

So there are two types of situations that don’t fit squarely into this framework. 

The first: whistleblowers who expose government corruption.  Asylum law protects whistleblowers by fitting them into the political opinion ground (“Whistle-blowing against government corruption is an expression of political opinion.”  Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)).The second: people who fear retaliation from private citizens for reporting criminal activity to law enforcement authorities.  This is considered personal retribution not related to the expression of a political opinion. 

Both situations have the same feeling, in that we generally want to protect people who report crime and corruption.  But until Antonyan v. Holder, only the first group was protected.  In Antonyan, the Ninth Circuit was presented with a mixture of these two situations.  The applicant reported a crime to the Armenian authorities…the crime of a private citizen.  What she soon found out was that this private citizen was extremely well-connected with the police and prosecutors.  Her reports were ignored; the prosecutions were dismissed.  As she continued up the government chain looking for someone who would listen, the gang of thugs associated with the criminal attacked her and threatened to kill her.  In doing so, she was also exposing the corrupt government employees.  Finally, the police themselves tried to quiet her, at which time she left Armenia.

The Immigration Judge and the Board of Immigration Appeals both dismissed her claim, holding that she really only feared the retaliation of a private criminal.  The Ninth Circuit disagreed.  This is a significant expansion of the whistleblowing doctrine, as it broadens the asylum protection given to those who expose criminals with corrupt ties to the government. 

You Entered the U.S. Last Fall? Okay…If You Say So.

  On Friday June 17, 2011, the Ninth Circuit issued its en banc decision in Nirmal Singh v. Holder (08-70434) (full opinion available here).

Prerequisite knowledge:  to be eligible for asylum, an applicant is required to file that application prior to the one-year anniversary of his or her last entry into the United States.  If he or she does not file within one year, he or she may still be eligible if “exceptional” or “changed” circumstances are to blame for the filing delay.  If no exceptions apply, the alien will be found ineligible for asylum on this basis alone, and he or she will be left pursuing the much more difficult applications of withholding of removal and relief under the Convention Against Torture.  Those alternatives are inferior to asylum from both the ease and benefits perspective.  They are of course not inferior in the universal sense, as they equally save someone’s life.

In any asylum case, a decision is typically structured in a three-tiered manner, the first two of which are threshold questions.  First, was the applicant’s testimony credible (of which there is a plethora of case law)?  Second, did the applicant file for asylum within one year of his or her last entry into the United States (which must be established by clear and convincing evidence)?  And third — assuming answers to both previous questions are yes — has the applicant established past persecution and a likelihood of future persecution?  The recent en banc decision in Singh v. Holder touches on the second question and whether the applicant is required to offer corroborative evidence of his or her date of entry, even when the applicant’s testimony was credible.

The Ninth Circuit first said yes…but now they say no.

Singh is a citizen of India who entered the United States illegally through Canada.   Of course, when one enters the U.S. without being admitted by an immigration officer, there is no stamp or I-94 to serve as a record of the entry.  So how do you prove that you entered illegally on a certain date?  You just say so (in a believable way).

We’ve discussed here before the REAL ID Act, which imposes corroboration requirements on asylum applicants.  While in the past applicants could establish eligibility for asylum with credible testimony alone, the INA now requires corroborate evidence of credible testimony, or a damn good reason why it could not be obtained.  The issue in Singh is whether those requirements apply to the second and third questions above, or only the third.

The resolution of this issue for the Ninth Circuit was rooted in statutory construction.  The INA –as modified after the REAL ID Act — requires corroborative evidence only in establishing that one is a refugee.  It also defines a refugee as a person who is unable or unwilling to return to his or her country because he or she has been or will be persecuted on account of a statutorily protected ground.  Nothing in the definition of a refugee mentions a one-year rule (and of course it doesn’t…a refugee is by definition someone who is not in the United States…there is a different between a “refugee” and an “asylee”).  On that basis, the Ninth Circuit concluded that corroborative evidence is required for the substance claim only, and not for the threshold issue of whether the application was timely filed.

There is a dissent.  The gyst of it is: we disagree because that reading will limit — their word is “frustrate” — Immigration Judges in their efforts to properly adjudicate cases.  Of course it does.  Just like the 4th amendment “frustrates” law enforcement, and the 5th amendment “frustrates” prosecutions.

Young v. Holder Makes a Case for Citizenship

On January 28, 2010 the Ninth Circuit issued a decision in Young v. Holder, 07-70949 (available here).  That decision should serve as encouragement to all long time permanent residents to consider becoming U.S. citizens.

Being a permanent resident is lovely.  It allows an alien to enter the U.S. without a hassle, to petition certain members of his or her family to also obtain permanent resident status, and to live and work in the U.S. without threat of deportation.  That is, unless the alien violates the terms of his or her residency.  There are many ways to spoil the fun, and they are mostly contained in section 237 of the Immigration and Nationality Act (see more here). 

And Now Citizenship.  After five years of being a permanent resident (3 years if you are married to and living with a U.S. citizen), an alien is eligible to apply for citizenship.  To do so, he or she must be proficient in written and spoken English, must pass a civics/government test, must be willing to take an oath of allegience to the U.S., and must otherwise satisfy the qualifications for naturalization.  There are a gazillion exceptions to everything I just said, but you get the idea.

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Aliens Have a Right to See Homeland Security’s Secret A-File Treasures

This week in Sazar-Dent v. Holder (09-71987) (full opinion available here), the Ninth Circuit has officially held the Department of Homeland Security to the standard that we had all hoped they lived by without having to be told.  This case is both disheartening and refreshing.

Mr. Sazar-Dent has a long and distinguished immigration/criminal history.  In removal proceedings, and without representation, he argued that he was a U.S. citizen and not subject to deportation.  The basis of his claim was that he had been adopted by a U.S. citizen as a young child.  The Immigration Judge granted continuances while the issue of citizenship was explored.  Mr. Sazar-Dent was able to produce his adoption decree and school records reflecting his attendance at a young age.  ICE pointed out that he had still not provided any proof that his mother had been a U.S. citizen.  Unfortunately, the records office of the town in which she was born had burned down, so the birth certificate was unavailable.  Mr. Sazar-Dent that advised the Judge that her passport, social security number, date/place of birth, etc. were all submitted over two decades earlier “in order for her to bring [him] to the States.”  Ultimately, the Court found that he had not sufficiently established his citizenship and ordered him removed to Honduras.

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Did the Ninth Circuit Get it Wrong on Citizenship for Children Born Abroad? We’re About to Find Out.

Flores-Villar v. Holder (09-5801) has been briefed at the Supreme Court and is set for oral argument on November 10. (copies of briefing available here). We’ll soon find out whether the Ninth Circuit will be upheld its decision permitting the restriction of a father’s right to transmit U.S. citizenship to a child born abroad out of wedlock.

An important preface.  The transmittal of U.S. citizenship to a child board abroad is COMPLICATED.  We practitioners must find the law as it existed the moment the alleged citizen was born to determine whether the parent–in this case, father–conferred citizenship, which typically involves charts, Diet Coke, and yelling.   

An example:  If a child was born abroad to a U.S. citizen parent and an alien parent on or after January 13, 1941 but before December 24, 1952, then the child was a citizen if the citizen parents resided in the U.S. or possession for ten years prior to the child’s birth, five of which had to be after the parent turned 16.  If the subsequent retention requirement was not met, then citizenship could be obtained by taking an oath of allegiance, but only if he or she had two years of continuance physical presence between ages 14-28, or 5 years of continuous physical presence between ages 14-28 if begun before 10/27/72, or none if the parent was employed in a certain occupation, or if the child was born between October 10, 1952 and December 24, 1952, or if the alien parent naturalized and child began permanent residency in U.S. while under the age of 18.  (Thank you, Kurzban Immigration Law Sourcebook).

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Eleven Things You Need to Know About Immigration to Have an Educated Opinion on SB 1070

On July 28, 2010, Senate Bill 1070 will go into effect in Arizona.  Supporters from the right and opponents from the left have been battling over the propriety of 1070 since before Governor Brewer signed the controversial measure on April 23 of this year, and the debates–both legal and political–will continue.  Polls show that between 50 and 60 percent of Americans are in favor of the Support Our Law Enforcement and Safe Neighborhoods Act, and that number is even higher in Arizona.  Proponents say the law is aimed at criminal aliens, drug smugglers, and human traffickers; others allege that the law takes aim at all Hispanics.  Governor Brewer added fuel to the debate last week when she said that most “illegal” immigrants are drug mules, from which even many conservative political figures quickly stepped back.

As an immigration attorney, SB 1070 and the debates surrounding it are frustrating.  Immigration law is second only to the federal tax code in complexity, and the validity of someone’s physical presence in the United States can often be incredibly difficult to ascertain.  While SB 1070 holds itself out to be an uber-strict and no-nonsense approach to “illegal” immigration, I do not think it is.  Rather, it creates an entire new world of issues for Arizona law enforcement who continue having absolutely no authority over the ultimate fate of “illegal” aliens.

So, I am offering my list of the eleven things you need to know about immigration law to truly understand SB 1070.  Beyond that, you decide.

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More from the Ninth on the Beauty of the Fraud Waiver

Previously, in Thank You For Accusing Me of Marriage Fraud, Sir. Now Give Me Back My Green Card  (available here) we discussed the beauty of the fraud waiver.  To recap, that waiver lets you keep your green card even though you lied about something that made you ineligible for that green card in the first place.

There’s more good news today.  I provide background where necessary.

As we noted in our last entry about this immigration gem, the only requirement to qualify for the fraud waiver is that you have a parent, spouse, or child that is a United States citizen or permanent resident.  Well, weren’t we silly.  In a ruling that many immigration practitioners are calling a “huh?…wait…what?” moment, the Ninth has held that you still qualify if that relative (as long as it’s a parent) has died.

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Next for Arizona? (A Parody)

A new Arizona law requires local law enforcement to inquire about an individual’s immigration status if the officer has reason to believe that he or she is in the United States illegally.  The law, signed Friday by Arizona Governor Jan Brewer, is just the first of a series of measures designed to ensure that no law–state or federal–is ever broken in the state of Arizona.

Though the immigration law has been riddled with constitutional problems and allegations that it will lead to racial profiling, the Arizona legislature plans on moving forward this week with a new bill that would require police to arrest people who look like they didn’t file their federal tax returns this year.  While there is no guidance given on who “looks like” they didn’t file their tax returns this year, one Arizona lawman was quoted as saying, “Well, dark skin is the first giveaway.  Lack of proficient English is the second.  Beyond that, white people showing any sign of disposable income.”  Civil rights organizations are already rallying.

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