Articles Posted in Immigration Law

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The Immigration and Nationality Act, 8 U.S.C. 1401(a)(7), provides a path to citizenship for a child born abroad if the child’s U.S.-citizen parent has 10 years’ physical presence in the U.S. before the child’s birth, “at least five of which were after attaining” age 14. Section 1409(c) provides that an unwed U.S.-citizen mother's citizenship can be transmitted to a child born abroad if she has lived continuously in the U.S. for one year before the child’s birth. Morales-Santana’s father, José, moved to the Dominican Republic 20 days before his 19th birthday, so he did not satisfy 1401(a)(7)’s requirement for physical presence after age 14. A Dominican woman gave birth to Morales-Santana in 1962. José accepted parental responsibility. Morales-Santana has lived in the U.S. since he was 13. In 2000, the government sought to remove Morales-Santana based on criminal convictions, ranking him as alien. The Supreme Court affirmed the Second Circuit, ruling in Morales-Santana’s favor. The statute’s gender line is incompatible with the Fifth Amendment’s equal protection requirement. Morales-Santana has third-party standing to vindicate his deceased father’s rights. The Court applied “heightened scrutiny” and found no important governmental interest for the law’s “overbroad generalizations.” Given the choice between extending favorable treatment to the excluded class or withdrawing favorable treatment from the favored class, the Court noted that extension of favorable treatment to fathers would displace Congress’ general rule, the longer physical-presence requirements. Pending Congressional action, the five-year requirement should apply, prospectively, to children born to unwed U.S-citizen mothers. View "Sessions v. Morales-Santana" on Justia Law

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Petitioner, a Mexican citizen and lawful permanent resident of the U.S., pleaded no contest in a California court under a statute criminalizing “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” defining “minor” as “a person under the age of 18.” He was ordered removed under 8 U.S.C. 1227(a)(2)(A)(3), as an “alien who is convicted of an aggravated felony,” including “sexual abuse of a minor.” The Supreme Court reversed. Under the categorical approach employed to determine whether an alien’s conviction qualifies as an aggravated felony, the court asks whether the state statute defining the crime of conviction categorically fits within the "generic" federal definition of a corresponding aggravated felony. Petitioner’s state conviction would be an “aggravated felony” only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor, regardless of the actual facts of the case. The least of the acts criminalized by the California law would be consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21. The generic federal definition of “sexual abuse of a minor” requires that the victim be younger than 16 and a significant majority of state criminal codes set the age of consent at 16 for statutory rape offenses predicated exclusively on the age of the participants. View "Esquivel-Quintana v. Sessions" on Justia Law

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An equally divided Court affirmed, by per curiam opinion, the judgment of the appeals court below. That court had temporarily halted implementation of the federal government's Deferred Action for Parents of Americans and Lawful Permanent Residents program ("DAPA") on the grounds that the policy likely violated the Administrative Procedure Act. The case will go back to the federal district court to determine whether DAPA should be permanently enjoined. View "United States v. Texas" on Justia Law

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Any alien convicted of an “aggravated felony” after entering the U.S. is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal, 8 U.S.C. 1227(a)(2)(A)(iii), (3). An “aggravated felony” is defined as any of numerous offenses listed in Section 1101(a)(43), each of which is typically identified either as an offense “described in” a specific federal statute or by a generic label (e.g., murder); the penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law. Luna, a lawful permanent resident, pleaded guilty in New York to attempted third-degree arson. An Immigration Judge determined that Luna’s arson conviction was for an “aggravated felony” and that Luna was ineligible for discretionary relief. The Board of Immigration Appeals affirmed. The Second Circuit denied review. The Supreme Court affirmed. A state offense counts as a Section 1101(a)(43) “aggravated felony” when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce.; state crimes do not need a “jurisdictional hook.” Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are made illegal by the federal government, a state, or a foreign country. It is implausible that Congress viewed the presence of an interstate commerce element as separating serious from nonserious conduct. View "Luna Torres v. Lynch" on Justia Law

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Din petitioned to have her husband, Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under 8 U.S.C. 1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but provided no further information. Unable to obtain a more detailed explanation, Din filed suit. The district court dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa and that the government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation of its reasons. The Supreme Court vacated and remanded, with Justices Roberts, Scalia, and Thomas concluding that the government did not deprive Din of any constitutional right entitling her to due process of law. Justices Kennedy and Alito found no need to decide whether Din had a protected liberty interest, because, even assuming she did, the notice she received satisfied due process. View "Kerry v. Din" on Justia Law

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After Mata, an unlawful alien, was convicted of assault in a Texas court, an Immigration Judge ordered him removed to Mexico. Mata’s attorney filed notice of appeal with the Board of Immigration Appeals (BIA), but never filed a brief; the appeal was dismissed. Acting through different counsel, Mata moved to reopen his removal proceedings, 8 U.S.C. 229a(c)(7)(A). Acknowledging that he had missed the 90-day deadline for such motions, Mata argued that his previous counsel’s ineffective assistance was an exceptional circumstance entitling him to equitable tolling. The BIA dismissed the motion as untimely and declined to reopen Mata’s removal proceedings sua sponte based on its separate regulatory authority. The Fifth Circuit construed Mata’s equitable tolling claim as a request that the BIA exercise its regulatory authority to reopen the proceedings sua sponte, and, because its precedent forbids review of BIA decisions not to exercise that authority, dismissed for lack of jurisdiction. The Supreme Court reversed. A court of appeals has jurisdiction to review the BIA’s rejection of an alien’s motion to reopen. Nothing about that jurisdiction changes where the BIA rejects a motion as untimely, or when it rejects a motion requesting equitable tolling of the time limit, or when the denial also contains a separate decision not to exercise its sua sponte authority. If Mata is not entitled to relief on the merits, the correct disposition is to take jurisdiction and affirm the BIA’s denial of his motion. A federal court has a “virtually unflagging obligation” to assert jurisdiction where it has that authority; recharacterizing pleadings cannot be used to sidestep the judicial obligation to assert jurisdiction. View "Mata v. Lynch" on Justia Law

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Mellouli, a lawful permanent resident, pleaded guilty to a misdemeanor offense under Kansas law, the possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance,” consisting of a sock in which he had placed four unidentified orange tablets. An Immigration Judge ordered him deported under 8 U.S.C. 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (defined in section 802 of Title 21).” Section 802 limits “controlled substance” to a “drug or other substance” included in federal schedules. Kansas defines “controlled substance” according to its own schedules, without reference to Section 802, and included substances not on the federal lists. The Board of Immigration Appeals affirmed. The Eighth Circuit denied a petition for review. The Supreme Court reversed. Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal. Under the categorical approach, a state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA’s reasoning, that there is no need to show that the type of controlled substance involved in a paraphernalia conviction is one defined in section 802, leads to the anomalous result of treating less grave paraphernalia possession misdemeanors more harshly than drug possession and distribution offenses. The Court rejected the government’s argument that aliens who commit any drug crime in states whose drug schedules substantially overlap the federal schedules are deportable, because the state statutes are laws “relating to” federally controlled substances. To trigger removal under 1227(a)(2)(B)(i), the government must connect an element of the alien’s conviction to a drug defined in section 802. View "Mellouli v. Lynch" on Justia Law

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Qualifying U.S. citizens and lawful permanent residents (LPRs) may petition for family members to obtain immigrant visas. A sponsored individual (principal beneficiary) is placed into a “family preference” category based on relationship to the petitioner, 8 U.S.C. 1153(a)(1)–(4). The principal beneficiary’s spouse and minor children qualify as derivative beneficiaries, entitled to the same status and order of consideration as the principal. Beneficiaries become eligible to apply for visas in order of priority date, the date a petition was filed. Because the process often takes years, a child may age out and lose status before she obtains a visa. The Child Status Protection Act (CSPA) provides that if the age of an alien is determined to be 21 years or older, notwithstanding allowances for bureaucratic delay, the petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” In this case, principal beneficiaries who became LPRs, filed petitions for their aged-out children (who did not have a qualifying relationship with the original sponsor), asserting that the newly filed petitions should receive the same priority date as their original petitions. U. S. Citizenship and Immigration Services (USCIS) disagreed. The district court granted the government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination under section 1153(h)(3). The Ninth Circuit reversed, holding that the provision entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed, reasoning that each immigrant must have a qualified and willing sponsor. If an original sponsor does not have a legally recognized relationship with the aged-out children, another sponsor must be identified for the alien to qualify for a new family preference category. Immigration officials do not know whether a valid sponsor exists unless the aged-out beneficiary files and USCIS approves a new petition. Section 1153(h)(3) does not require a new petition for derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, the nieces, nephews, and grandchildren of the initial sponsors cannot qualify for “automatic conversion.” The BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, first-served rule. View "Scialabba v. de Osorio" on Justia Law

Posted in: Immigration Law

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Qualifying U.S. citizens and lawful permanent residents (LPRs) may petition for family members to obtain immigrant visas. A sponsored individual (principal beneficiary) is placed into a “family preference” category based on relationship to the petitioner, 8 U.S.C. 1153(a)(1)–(4). The principal beneficiary’s spouse and minor children qualify as derivative beneficiaries, entitled to the same status and order of consideration as the principal. Beneficiaries become eligible to apply for visas in order of priority date, the date a petition was filed. Because the process often takes years, a child may age out and lose status before she obtains a visa. The Child Status Protection Act (CSPA) provides that if the age of an alien is determined to be 21 years or older, notwithstanding allowances for bureaucratic delay, the petition “shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” In this case, principal beneficiaries who became LPRs, filed petitions for their aged-out children (who did not have a qualifying relationship with the original sponsor), asserting that the newly filed petitions should receive the same priority date as their original petitions. U. S. Citizenship and Immigration Services (USCIS) disagreed. The district court granted the government summary judgment, deferring to the Board of Immigration Appeals’ (BIA’s) determination under section 1153(h)(3). The Ninth Circuit reversed, holding that the provision entitled all aged-out derivative beneficiaries to automatic conversion and priority date retention. The Supreme Court reversed, reasoning that each immigrant must have a qualified and willing sponsor. If an original sponsor does not have a legally recognized relationship with the aged-out children, another sponsor must be identified for the alien to qualify for a new family preference category. Immigration officials do not know whether a valid sponsor exists unless the aged-out beneficiary files and USCIS approves a new petition. Section 1153(h)(3) does not require a new petition for derivative beneficiaries who had a qualifying relationship with an LPR both before and after they aged out. In contrast, the nieces, nephews, and grandchildren of the initial sponsors cannot qualify for “automatic conversion.” The BIA’s interpretation benefits from administrative simplicity and fits with immigration law’s basic first-come, first-served rule. View "Scialabba v. de Osorio" on Justia Law

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Moncrieffe, a Jamaican citizen legally in the U.S., was found with 1.3 grams of marijuana in his car. He pleaded guilty under Georgia law to possession of marijuana with intent to distribute. Under the Immigration and Nationality Act, a noncitizen convicted of an “aggravated felony” is deportable, 8 U.S.C. 227(a)(2)(A)(iii), and ineligible for discretionary relief. The INA lists as an “aggravated felony” “illicit trafficking in a controlled substance,” including conviction of an offense that the Controlled Substances Act (CSA) makes punishable as a felony (by more than one year’s imprisonment). A state conviction is a felony punishable under the CSA only if it involves conduct punishable as a felony under federal law. Possession of marijuana with intent to distribute is a CSA offense, 21 U.S.C. 841(a), punishable by up to five years’ imprisonment. An Immigration Judge ordered Moncrieffe removed. The Board of Immigration Appeals affirmed. The Fifth Circuit denied a petition for review, rejecting reliance on section 841(b)(4), which makes marijuana distribution punishable as a misdemeanor if the offense involves a small amount for no remuneration. The Supreme Court reversed and remanded. If a noncitizen’s conviction for marijuana distribution fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA. The Court employed the “categorical approach,” examining what the state conviction necessarily involved and not the facts underlying the case, and presuming that the conviction involved the least of the acts criminalized. Conviction under Georgia’s statute, alone, does not reveal whether either remuneration or more than a small amount was involved, so Moncrieffe’s conviction could correspond to either the CSA felony or the CSA misdemeanor. The Court rejected an argument that section 841(b)(4) was merely a mitigating sentencing factor, not an element of the offense. The government’s proposal that noncitizens be allowed, during immigration proceedings, to demonstrate that their convictions involved only a small amount of marijuana and no remuneration is inconsistent with the INA’s text and the categorical approach and would burden immigration courts and the noncitizens involved. Escaping aggravated felony treatment does not necessarily mean escaping deportation, because any marijuana distribution offense renders a noncitizen deportable as a controlled substances offender, but with an opportunity seek relief from removal. View "Moncrieffe v. Holder" on Justia Law