Fourth Amendment – immigrationcourtside.com

🤮👎ERROR SUPPLY: Billy The Bigot’s BIA Blows Basics Big-Time: 1) 1-Year Bar (2d Cir.); 2) Gang-Based PSG (2d Cir.); 3) Fourth Amendment (2d Cir.); 4) Retroactivity (11th Cir.); 5) CIMT (4th Cir.); 6) Categorical Approach (2d Cir.)!

Dan Kowalski @ LexisNexis Immigration Community reports on the on the latest “Medley of Deadly Mistakes” —

CA2 on One Year Filing Deadline, PSG: Ordonez Azmen v. Barr

Ordonez Azmen v. Barr

“Mario Ordonez Azmen petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to remand and dismissing his appeal of the denial of his asylum and statutory withholding claims under the Immigration and Nationality Act. The BIA did not adequately explain its conclusion that Ordonez Azmen’s proposed social group of former gang members in Guatemala was not particular. Nor did the BIA adequately explain its reasons for denying Ordonez Azmen’s motion to remand based on evidence of new country conditions. Finally, we hold that under 8 U.S.C. § 1158(a)(2)(D), changed circumstances presenting an exception to the one-year deadline for filing an asylum application need not arise prior to the filing of the application, and the BIA erred when it refused to consider Ordonez Azmen’s alleged changed circumstances on the ground that the change occurred while his application was pending. We GRANT the petition, VACATE the BIA’s decision, and REMAND for reconsideration of Ordonez Azmen’s application for asylum and statutory withholding of removal and his motion to remand, consistent with this opinion.”

[Hats off to Zachary A. Albun, Albert M. Sacks Clinical Teaching & Advocacy Fellow, Harvard Immigration & Refugee Clinical Program, Harvard Law School, who writes: “The Court found the INA unambiguously provides that “material changed circumstances” excepting the one year filing deadline need not precede filing of the asylum application (i.e., you can rely on a changes that occur during proceedings). The court further held that W-G-R- & M-E-V-G- do not create a per se rule that “former gang member” PSGs lack cognizability. Another important point is that the Court relied on two unpublished BIA decisions that we’d submitted in determining it need not defer to the agency, but instead decide the case based on its own reading of the governing statute and regulations. Major credit and a huge thanks goes to my co-counsel at the University of Minnesota Federal Immigration & Litigation Clinic and the National Immigrant Justice Center, and to my colleagues and students at HIRC.”]

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CA2 on Suppression: Millan-Hernandez v. Barr

Millan-Hernandez v. Barr

“Maria Cared Millan-Hernandez petitions for review of a 2018 Board of Immigration Appeals decision dismissing her appeal of an Immigration Judge’s denial, without an evidentiary hearing, of her motion to suppress evidence. On appeal, we consider whether Millan-Hernandez provided sufficient evidence of an egregious Fourth Amendment violation to warrant an evidentiary hearing. We conclude that she did and that the agency applied an incorrect standard in determining otherwise. Accordingly, the petition for review is GRANTED and the cause REMANDED for further proceedings consistent with this Opinion.”

[Hats off to AADHITHI PADMANABHAN, The Legal Aid Society, New York, NY (Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY, on the brief), for Petitioner!]

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CA11 on Retroactivity: Rendon v. Atty. Gen.

Rendon v. Atty. Gen.

“Carlos Rendon began living in the United States as a lawful permanent resident in 1991. Then in 1995, he pled guilty to resisting a police officer with violence. Under immigration law this offense qualifies as a crime involving moral turpitude (“CIMT”). At the time, Mr. Rendon’s sentence of 364 days in state custody did not affect his status as a lawful permanent resident. But Congress later changed the law. In 1996, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) made him deportable based on his CIMT conviction. And in 1997, the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) created the “stop-time rule,” which meant people convicted of certain crimes were no longer eligible for a discretionary form of relief known as cancellation of removal. Approximately 25 years after his guilty plea, an immigration judge found Mr. Rendon removable and ruled he was no longer eligible for cancellation of removal on account of the stop-time rule. On appeal, Mr. Rendon now argues that it was error to retroactively apply the stop-time rule to his pre-IIRIRA conviction. After careful review, we conclude that Mr. Rendon is right. We reverse the decision of the Board of Immigration Appeals and remand for further proceedings.”

[Hats off to Anthony Richard Dominquez at Prada Urizar, PLLC!]

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CA4 on CIMT: Nunez-Vasquez v. Barr

Nunez-Vasquez v. Barr

“David Nunez-Vasquez seeks review of the Board of Immigration Appeals (“BIA”) finding that he was removable because he had been convicted of two crimes involving moral turpitude (“CIMT”)—a conviction for leaving an accident in violation of Va. Code Ann. § 46.2–894 and a conviction for use of false identification in violation of Va. Code Ann. § 18.2–186.3(B1). We hold that neither conviction is categorically a crime involving moral turpitude. We therefore grant Nunez-Vasquez’s petition for review, vacate the BIA’s order of removal, order the Government to return Nunez-Vasquez to the United States, and remand to the BIA for further proceedings.”

[Hats off to Ben Winograd, Trina Realmuto, Kristin Macleod-Ball, Nancy Morawetz and Samantha Hsieh!]

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CA2 on Antique Firearms: Jack v. Barr

Jack v. Barr

“In these tandem cases, Jervis Glenroy Jack and Ousmane Ag each petition for review of decisions of the Board of Immigration Appeals (BIA) ordering them removed based on their New York firearms convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(C). We principally conclude that the statutes of conviction, sections 265.03 and 265.11 of the New York Penal Law, criminalize conduct involving “antique firearms” that the relevant firearms offense definitions in the Immigration and Nationality Act do not. This categorical mismatch precludes the petitioners’ removal on the basis of their state convictions. We therefore GRANT the petitions, VACATE the decisions of the BIA, and REMAND both causes to the agency with instructions to terminate removal proceedings.”

[Hats off to Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY; Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Jervis Glenroy Jack, Petitioner in No. 18-842-ag., Stephanie Lopez, Neighborhood Defender Service of Harlem, New York, NY; Alan E. Schoenfeld, Andrew Sokol, Beezly J. Kiernan, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Ousmane Ag, Petitioner in No. 18-1479-ag.!]

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Remember, unlike most so-called “civil litigation,” lives and futures are at stake in every one of these cases. It’s like sending in brain surgeons trained by the “American Academy of Morticians.” Over and over, the Trump DOJ has shown itself more interested in “upping the body count” than on fairness, due process, and just results at EOIR. Is there a “breaking point” at which the Article IIIs will finally get tired of correcting the BIA’s mistakes and doing their work for them?

Good thing the BIA isn’t sitting for the final exam in my “Immigration Law & Policy” course at Georgetown Law. Even “the curve” might not be enough to save them.

Due Process Forever!

PWS

07-15-20

PUBLISHED 9TH CIR DECISION SAYS DETENTION BASED SOLELY ON LATINO APPEARANCE IS “EGREGIOUS 4TH AMENDMENT VIOLATION,” TERMINATES PROCEEDINGS — Sanchez v. Sessions — BIA Flubs Serious Constitutional Issue!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/30/14-71768.pdf

Sanchez v. Sessions, 9th Cir., 08-30-17

PANEL: Harry Pregerson, Richard A. Paez, and Morgan B. Christen, Circuit Judges.

Opinion by Judge Pregerson; Concurrence by Judge Pregerson; Concurrence by Judge Christen

Here’s the Court Staff’s summary of the opinions. It’s NOT part of the Court’s opinion, but nevertheless quite informative.

“The panel granted, reversed, and remanded Luis Enrique Sanchez’s petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s decision denying Sanchez’s motion to suppress evidence of his alienage and ordering his removal.

The panel held that Coast Guard officers who detained Sanchez committed an egregious Fourth Amendment violation because they seized Sanchez based on his Latino ethnicity alone. Accordingly, the panel held that the immigration judge erred in failing to suppress the Form I- 213 (Record of Deportable/Inadmissible Alien), which was prepared after his immigration arrest and which the Government introduced to establish Sanchez’s alienage and entry without inspection.

The panel also concluded that Sanchez was not seized at the United States border, where Fourth Amendment protections are lower. The panel further held that, because Coast Guard officers detained Sanchez solely on the basis of his Latino ethnicity, the officers violated an immigration regulation, 8 C.F.R. § 287.8(b(2), which provides that an immigration officer may briefly detain an individual only if the officer has “reasonable suspicion, based on specific articulable facts” that the person is engaged in an offense or is an alien illegally in the United States. Accordingly, the panel held that Sanchez’s removal proceedings must be terminated based on the regulatory violation because the regulation is designed to benefit Sanchez, and Sanchez was prejudiced by the violation.

Because the panel concluded Sanchez’s proceedings should have been terminated based on the regulatory violation, the panel did not reach the question whether Sanchez’s previously-submitted Family Unity Benefits and Employment applications, which the Government also introduced to establish alienage, are indirect fruits of the poisonous tree. The panel granted Sanchez’s petition for review and remanded to the Board with instructions to terminate Sanchez’s removal proceedings.

Concurring, Judge Pregerson wrote separately to explain why it is unfair for the Government to encourage noncitizens to apply for immigration relief, and later use statements in those relief applications against them in removal proceedings. Judge Pregerson expressed concern about the Government’s argument that the exclusionary rule does not apply to Sanchez’s Family Unity Benefits and Employment Authorization applications because they predated the egregious constitutional violation. He wrote that categorically exempting pre-existing applications from the exclusionary rule in this way allows law enforcement to unconstitutionally round up migrant-looking individuals, elicit their names, and then search through Government databases to discover incriminating information in pre- existing immigration records.

Concurring, Judge Christen agreed that the case did not concern a border stop, noting that the Coast Guard did not seize Sanchez at a port of entry and that the evidence did not show that Sanchez’s boat had sailed from international waters. Judge Christen also agreed that Sanchez’s removal proceedings must be terminated based on the regulatory violation.”

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This egregious Fourth Amendment violation generated three thoughtful opinions from U.S. Circuit Court of Appeals Judges. Yet, it got a “free pass” from the BIA. Just another ho-hum day at the office. But, what about the BIA’s responsibility to “guarantee fairness and due process for all?” Doesn’t it extend to constitutional rights?

Judge Pregerson’s concurring opinion also suggests a line of legal attack for “Dreamers” if legislative protections are not enacted and they are thrown into removal proceedings. In most cases, the Dreamers came forward voluntarily, in fact were encouraged to do so by the USG, and applied to the USCIS for DACA and work authorization. In the process they furnished information about their lack of legal status in the U.S.

In many cases, that will be the sole evidence supporting a charge of removability. Dreamers’ counsel can argue, and some Federal Courts are likely to agree, that the use of that information to establish removability is “fundamentally unfair” and therefore a violation of constitutional due process.

PWS

09-03-17

Due Process Forever!

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