Wake Forest Law Review

by: Marcia Zug

Men and women are not equal in immigration law, and the Supreme Court has long upheld these distinctions. In fact, since 1977, the Court has heard four immigration-based sex discrimination cases and sustained the challenged provision every time.[1]  The Court even upheld one provision twice, just so it could more fully articulate the basis for its decision.[2]  This summer, the Court decided a fifth immigration-based sex discrimination challenge.[3]  The case, Sessions v. Morales-Santana[4], concerned an Immigration and Nationality Act (INA) provision distinguishing between unmarried fathers and mothers with regard to the transmission of citizenship.[5]  The Court had not previously considered this particular provision.  Nevertheless, given the Court’s history of upholding similar gender distinctions, Morales-Santana seemed poised to become the fifth case affirming the constitutionality of immigration law’s gender distinctions.  Instead, the Court declared the challenged provision unconstitutional.[6]

As the cases on transmission of citizenship demonstrate, gender plays a surprisingly important, and arguably unjust, role in immigration law.  Explicit gender divisions and gender stereotypes are widespread.[7]  However, prior to Morales-Santana the Court consistently upheld these distinctions.[8]  Consequently, despite the limited scope of Morales-Santana (it only applies to a single INA provision and does not overturn the Court’s previous cases), the case is important.  It indicates that the Court is no longer willing to excuse or attempt to rationalize immigration law’s widespread gender discrimination.

Immigration law’s long history of gender bias, means the possibilities for discrimination claims are numerous.  Accordingly, it may be no coincidence that Morales-Santana, which finally confirms gender as an effective means of challenging discriminatory immigration laws, was decided only days before Trump v. International Refugee Assistance Project.[9]  International Refugee limited the scope of the government’s proposed travel ban[10] and demonstrated the Court’s concern with the current administration’s attempts to restrict immigrant rights.  Nevertheless, it is the Morales-Santana decision that provides the means to actually challenge the application of these restrictive immigration policies.[11]

The relevance of a gender discrimination claim to the travel ban is not immediately obvious.  Both the ban and its exemptions are gender neutral.[12]  However, family-based exceptions to immigration restrictions, similar to the ones applicable to the travel ban, have long been based on prejudices and stereotypes about the relative benefits of male versus female immigrants.[13]  If the State Department’s visa determinations mimic these historic practices, this could serve as the basis for a gender discrimination challenge, and there are already strong indications that gender will play an important role in the visa decision-making process.

Initially, the travel ban excluded all travelers from six countries: Yemen, Somalia, Iran, Libya, Sudan, and Syria.[14]  This blanket ban was then challenged in International Refugee, and the Court held it must include exemptions for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”[15]  The Court then added that employment, educational, or familial relationships could all potentially meet the definition of “bona fide relationship.”[16]

After receiving the International Refugee Court’s decision, the State Department issued a memo declaring the family relationship exemption limited to “close family.”[17]  It then defined “close family” as “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half.  This includes step relationships.”[18]  Other family relationships including “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members” were excluded.[19]  When asked where these distinctions originated, the government stated they were based on the long-standing family preference categories of the INA.[20]

The State Department’s focus on the family relationship category, as opposed to the educational or employment category, is understandable.[21]  Most U.S.-bound immigrants and refugees have at least one family member in the U.S.,[22] and it is likely that the majority of travel ban exemptions will arise under this group.[23]  Consequently, by limiting the class of qualifying relationships, the State Department can significantly reduce the number of aliens eligible for these exemptions.[24]

Critics of the ban were quick to condemn this strategy.  They objected to the government’s narrow definition of close family relationships and to the exclusion of fiancés and grandparents in particular.[25]  The State Department’s reaction to these criticisms was revealing.  Shortly after issuing the memo, the State Department revised the qualifying relationship definition to include fiancés,[26] but it refused to consider including grandparents.[27]  It then defended this distinction by arguing that the inclusion of fiancés, but not grandparents, was supported by immigration history.[28]  This is correct.[29]  However, the history the Department relied upon is highly problematic.

Historically, fiancé exemptions were limited to females and grounded in gender stereotypes that deprived women of their rights and agency.[30]  Beginning in 1855, U.S. immigration law granted foreign women married to American men automatic American citizenship.[31]  The 1855 Act was based on the doctrine of coverture, which decreed that married women had no right to a legal or political identity of their own.  According to this doctrine, a husband and wife were legally one person and that person was the man.[32]  A married woman’s identity was treated as “covered” by her husband’s; thus, when a foreign woman married an American citizen she became an American citizen as well.[33]  Similarly, because the law of coverture stated that a woman’s primary loyalty was to her husband, marriage to an American man was seen as a demonstration of her commitment to America and her worthiness to become a citizen.[34]

Tellingly, the reverse was never true.  Under the doctrine of coverture, the male identity was considered legally dominant.  As a result, marriage to an American woman could not change a foreign man’s citizenship.[35]  Foreign husbands still needed to earn their citizenship through further proof of loyalty to the U.S.[36]  In 1907, coverture’s ideas regarding marriage and female citizenship were codified in The Expatriation Act, which declared that American citizen women married to foreign men must share their husband’s alien status.[37]  The Act treated these wives as having voluntarily relinquished their citizenship through marriage, and it only permitted them to regain their citizenship if their husbands became citizens.[38]

The Expatriation Act was repealed in 1922,[39] but the belief that female patriotism and loyalty was derivative did not disappear.[40]  In fact, throughout the twentieth century, Congress repeatedly passed laws exempting foreign women, particularly those in relationships with American men, from otherwise applicable immigration restrictions.  Some of the most notable examples include the 1924 Quota Act, which imposed draconian quotas on immigration from certain countries but exempted foreign-born wives,[41] and the 1945 the War Brides Act, which allowed soldiers’ alien wives to enter as non-quota immigrants and also made exceptions for racially excludable Japanese and Korean wives.[42]  In the 1950s, the spousal and fiancé exemptions became gender neutral, but they still disproportionately benefitted female immigrants.

Women are more likely than men to immigrate through family connections.[43]  Consequently, by prioritizing family connections, gender-neutral immigration laws continued to ensure that foreign women remained the primary beneficiaries of America’s family-based immigration system.[44]  Some examples of modern female-benefitting immigration laws include the 1952 INA, which set up the current family-based immigration system;[45] the 1970 INA amendments creating the K-1 fiancé visa;[46] and the current version of the INA which continues to prioritize family-based immigration through benefits such as quota exemptions,[47] special visas,[48] and fast-tracked citizenship.[49]

Women have been the majority of arriving immigrants since the 1930s[50] and, as the above examples demonstrate, the change to gender-neutral family preferences has made little difference.[51]  Modern immigration law’s family preference remains mired in America’s long history of coverture and the belief that female immigrants are more trustworthy than foreign men.  These stereotypes benefit female immigrants, but they also make the family preference provisions constitutionally suspect.[52]  In addition, laws relying on these provisions, such as the travel ban, should also be viewed with suspicion.

The Supreme Court has long held that laws distinguishing between men and women based on outdated understandings of their “talents, capacities, or preferences” are contrary to constitutional gender principles.[53]  Immigration exemptions that benefit women based on the belief that women have no national allegiances of their own violate these constitutional principles.  Yet, despite these well-settled principles, for decades, the Court shielded immigration law from gender-based challenges.  This is finally no longer the case.  In Morales-Santana, the Court clearly held that immigration law does not exempt the government from the rule that “overbroad generalizations about the way men and women are” are unconstitutional.[54]

If the travel ban exemptions result in a highly uneven distribution of male and female visa denials, this disparity, combined with the gendered history of family-based preferences, should be enough to support a class action by the American family members of rejected aliens.  The President’s own statements[55] and policies[56] indicate that the true focus of the ban is Arab men, and consequently, there is a strong argument that the travel ban is a continuation of immigration law’s long-standing and constitutionally problematic preference for female immigrants based on their presumed greater loyalty to the U.S.

While a class action challenge to the application of the travel ban would be difficult, it could succeed because it would not focus on any individual visa denial.  Rather, it would challenge the overall visa decision-making process.  This distinction is crucial because under Supreme Court case law, once the State Department has made a visa determination, it is almost impossible to contest.  As recently as 2015, the Court reaffirmed the doctrine of consular non-reviewability, which bars judicial review of visa denials.  The case, Kerry v. Din[57], concerned an Afghani husband denied a visa to join his American citizen wife. According to the government, the husband presented a national security risk.  Din and her husband disagreed with this assessment, and they requested access to the information upon which it was based.  The government refused, and the couple then brought suit challenging the husband’s visa denial.  The district court held the doctrine of consular non-reviewability prevented review of their case, and the Supreme Court agreed.  According to the Court, visa determinations, even ones that are potentially unjust or incorrect, are unreviewable.

Without more information, it is impossible to know if the visa decision in Din was reasonable.  However, similar cases have shown how the doctrine of consular non-reviewability can shield erroneous or biased decisions from review. One of the most famous visa denial cases is Knauff v. Shaughnessy.[58]  In this case, the foreign-born wife of a returning American citizen soldier was denied the right to view the evidence used to bar her entry into the U.S.[59]  According to the government, Knauff had been a Nazi collaborator and provided the German military with classified information.[60] Knauff denied these claims, but without access to the government’s information, she was unable to effectively refute the charges.[61]  Luckily, Knauff’s case garnered national attention, and Congress eventually conducted a hearing to review the claims against her.[62]  This review revealed that the source of the information was a spurned girlfriend of Knauff’s husband who desired revenge.[63]  After obtaining this information, Knauff was able to demonstrate the falsity of the accusation, and she was then granted permission to enter the U.S.[64]

Knauff’s case has a happy ending, but it reveals how easily visas can be unjustly denied and how difficult it is for aliens to contest these decisions.  Knauff involved a single unfair visa denial; the travel ban creates the possibility of hundreds or thousands.  Kerry v. Din confirms that these individual decisions are shielded from judicial review, but it does not prevent them from being challenged as a group.  Consequently, the best, and perhaps only, means of challenging the application of the travel ban will be through a class action based on gender discrimination.

Initial travel ban lawsuits focused on racial and religious discrimination, but changes to the current ban weaken these arguments. Moreover, if the ban goes into effect, such arguments will be entirely inapplicable.  The newest version of the travel ban, which was released after the previous version expired, attempts to avoid charges of race and nationality discrimination by including two non-Muslim majority countries, Venezuela and North Korea.[65]  Opponents argue that the addition of these two countries does not solve the ban’s constitutional problems.  They argue that the ban’s primary purpose remains the prohibition of Muslim immigrants,[66] and they further add that the inclusion of Venezuela and North Korea does nothing to alleviate concerns that the ban discriminates based on national origin.[67]  For the moment, these challenges are succeeding, but many experts believe the ban will ultimately be upheld.[68]  Once that happens, arguments based on religious or national origin discrimination will be ineffective.

The majority of people affected by the ban will be both Arab and Muslim, making it difficult—or maybe impossible—to demonstrate religious or racial discrimination in the pattern of visa denials.[69]  Gender discrimination claims do not have this problem.  Significant numbers of both men and women are likely to apply for visas. Consequently, a substantial gender difference in the issuance of visas, combined with the history of discriminatory female preferences and the government’s acknowledged focus on Arab men, provides a strong basis for a gender discrimination challenge.

Whether such a challenge would ultimately succeed is unclear, but the possibility of such a suit demonstrates the new opportunities created by the Morales-Santana decision.  For too long, the Court has allowed stereotypes about the relative desirability of male and female immigrants to influence immigration law.  The result is an immigration system that favors women and can be manipulated and exploited to exclude men.  The State Department’s implementation of the travel ban is likely to proceed in this fashion.  However, Morales-Santana suggests that the Court might find such actions unconstitutional.  This is heartening.  As U.S. immigration becomes increasingly restricted, it is encouraging to realize the tools to fight these restrictions are expanding.

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     [1] See Flores-Villar v. United States, 564 U.S. 210 (2011) (splitting 4-4 and refusing to recognize an equal protection challenge to former provisions of the Immigration and Nationality Act (INA) which imposed an additional residence requirement for an unwed citizen-father to confer U.S. citizenship on a child born abroad); Nguyen v. INS, 533 U.S. 53, 70–71 (2001) (finding the paternity obligations were “minimal” and that the governmental interest in these distinctions served “important objectives.”); Miller v. Albright, 523 U.S. 420, 441 (1998) (finding the different treatment of unwed citizen mothers and unwed citizen fathers was “eminently reasonable” and “justified by important Government interests”); Fiallo v. Bell, 430 U.S. 787, 798 (1977) (reasoning that since these distinctions were “policy questions entrusted exclusively to the political branches of our Government,” the Court had “no judicial authority to substitute [its] political judgment for that of Congress”).

     [2] Nguyen concerned the same statutory provision as Miller.  See Michelle L. Sudano, Note, Crossing the Final Border: Securing Equal Gender Protection in Immigration Cases, 21 Wm. & Mary Bill Rts. J. 957, 968 (2013) (“[B]oth cases addressed the constitutionality of the same statute and the Nguyen court did not specify which issue was novel to the Nguyen case; it is more likely that the Court chose to hear Nguyen three terms after hearing Miller because it meant that the Court would have a chance to clarify the Miller ruling and eliminate the circuit split caused by the fractured opinion therein.”).

     [3] In Kerry v. Din, 135 S. Ct. 2128 (2015), Justice Scalia did hint that future gender discrimination challenges might be different.  Specifically, while discussing the history of the different treatment of male and female citizens, he wrote, “Modern equal-protection doctrine casts substantial doubt on the permissibility of such a symmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order.”  Id. at 2136.

     [4] 137 S. Ct. 1678 (2017).

     [5] The statute in effect at Luis Morales-Santana’s birth in 1962 required that an out-of-wedlock father have ten years of physical presence in the U.S., five years of which had to be after the father’s fourteenth birthday.  Id. at 1686-87.  In contrast, an out-of-wedlock mother had to have continuous physical presence in the U.S. for only one year at any time prior to the child’s birth.  Id. at 1687.

     [6] To reach its decision, the Court did not overrule the previous line of cases upholding these gender distinctions.  Instead, it carved out an exception for the challenged provisions.  As the Court noted, there were two ways it could fix the provision’s discriminatory result: either have the more lenient residency requirements apply to American citizen fathers or apply the more stringent one to mothers.  See id. at 1698.  The Court chose the latter, leading a number of commentators to dub the decision the “mean remedy.”  See, e.g., Will Baude, The Judgment in ‘Morales-Santana’ (and a Supreme Court Symposium), Wash. Post (June 13, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/13/the-judgment-in-morales-santana-and-a-supreme-court-symposium/?utm_term=.8dfecf900579. See also Ian Samuel, Morales-Santana and the “Mean Remedy,” PrawfsBlawg (June 12, 2017, 5:04 PM), http://prawfsblawg.blogs.com/prawfsblawg/2017/06/scotus-symposium-morales-santana-and-the-mean-remedy.html.

     [7] See, e.g., Charles Roth, Immigration Symposium: Prelude to a Turning Point, SCOTUSblog (June 29, 2017, 12:25 PM), http://www.scotusblog.com/2017/06/immigration-symposium-prelude-turning-point/ (“The INA allows a citizen parent to convey American citizenship automatically, under technical rules that have shifted over the years.  One consistent rule for the past 70 years is that it has been easier for an unmarried U.S.-citizen mother to convey automatic citizenship to her child than for an unmarried father or married parent.  The difference is the length of time that the parent must have been present in the U.S. before having the child.”).

     [8] In these cases, the Court upheld the distinctions as justified by the biological differences between men and women or as part of Congress’s plenary power over immigration.  Both justifications have been subject to significant criticism, particularly plenary power, which is seen as judicial permission for the government to violate constitutional norms.  Scholarly criticism of the doctrine is significant. See, e.g., T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship 151 (2002); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 189 (1996); Kif Augustine-Adams, The Plenary Power Doctrine after September 11, 38 U.C. Davis L. Rev. 701, 705 (2005); Nora V. Demleitner, How Much Do Western Democracies Value Family and Marriage?: Immigration Law’s Conflicted Answers, 32 Hofstra L. Rev. 273, 299–300 (2003); Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens’ Rights, 41 Vill. L. Rev. 725, 734 (1996).

     [9] 137 S.Ct. 2080 (2017).

     [10] Given the closeness of the two decisions, it may also be significant that the Morales-Santana Court refused to accept a quasi-national security justification for the different treatment of men and women.  The government argued that the distinctions between mothers and fathers were justified based on legitimate concerns regarding foreign influence over American citizens.  Specifically, the government argued the distinctions are justified because if a child has only one parent and that parent is a U.S. citizen, the child will be influenced only by a person with U.S. citizenship.  But if the child has two parents, one of whom is not a U.S. citizen, the child will be subject to the parental influence of a person with the interests of a “foreign citizenship.”  Presuming that mothers have greater influence over their children than fathers, the government argued that the different treatment was justified.  Brief for Petitioner at 10, Lynch v. Morales-Santana, 136 S. Ct. 2545 (2016) (No. 15-1191), 2016 WL 4436132, at *5.

     [11] In addition to instituting the travel ban, the President has also increased the arrest of undocumented immigrants.  See Aria Bendix, Immigration Arrests Are Up, but Deportations Are Down, The Atlantic (May 17, 2017), https://www.theatlantic.com/news/archive/2017/05/under-trump-immigrants-arrests-are-up-but-deportation-is-down/527103/.  He has also announced his intention to reduce legal immigration by half.  See Andrew Soergel, Report: Trump Pushing to Cut Annual Immigration by Half, U.S. News, (July 13, 2017, 11:35 AM), https://www.usnews.com/news/national-news/articles/2017-07-13/report-trump-pushing-to-cut-annual-immigration-by-half.

     [12] See Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

     [13] See generally Patricia Hatch, U.S. Immigration Policy: Family Reunification, League of Women Voters, http://lwv.org/files/ImmigrationStudy_FamilyReunification_Hatch.pdf (ranking the family based exceptions by preference to award visas).

     [14] Initially, Iraq was also included but was removed in the revised version of the order.  See Kevin Liptak, Why Iraq Was Removed from the Revised Travel Ban, CNN.com (Mar. 16, 2017, 5:06 PM), http://www.cnn.com/2017/03/06/politics/iraq-travel-ban/index.html.

     [15] Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088 (2017).

     [16] Id.

     [17] See Gardiner Harris & Ron Nixon, Stepsister, Yes; Grandma, No: U.S. Sets Guidelines for Revised Travel Ban, N.Y Times (June 28, 2017), https://nyti.ms/2uk1M2w.

     [18] Id.

     [19] Id.

     [20] Carol Morello, Travel Ban Takes Effect as State Department Defines “Close Family”, Wash. Post (June 29, 2017), http://wapo.st/2toCVxB?tid=ss_mail&utm_term=.f88bd8519383 (“Senior administration officials said they drew up the list of close relationships based on the definition of family in the Immigration and Nationality Act of 1965.”).

     [21] See Jessica Feinberg, The Plus One Policy: An Autonomous Model of Family Reunification, 11 Nev. L.J. 629, 630 (2011) (“The majority of individuals able to immigrate can do so because they share relationships with U.S citizens or lawful permanent residents (LPRs) that render them eligible under the ‘family reunification’ admission category.”); William L. Pham, Comment, Section 633 of IIRIRA: Immunizing Discrimination in Immigrant Visa Processing, 45 UCLA L. Rev. 1461, 1466 (1998) (“Family-sponsored immigration is by and large the most significant category of visa issuance: It comprises over 70% of all immigration to the United States.”).

     [22] Morello, supra note 20 (“More than half of all U.S.-bound refugees typically have some family members in the United States, although in some cases the relatives may be in the excluded category.”).

     [23] Some scholars have even suggested these exceptions could encompass the majority of travelers. Most travelers entering the U.S. do so for work, school, or to visit family.  See id.

     [24] See id.

     [25] See S.M., The Grandma Ban: The Travel Order Rules Face a Court Challenge, The Economist (June 30, 2017), https://www.economist.com/blogs/democracyinamerica/2017/06/grandma-ban.

     [26] Explaining the change, a state department official simply stated, “Upon further review, fiancé will now be included as close family members.”  Melanie Zanona, White House Reverses Course on Including Fiancés in Travel Ban, The Hill (June 29, 2017, 9:39 PM), http://thehill.com/policy/transportation/340193-white-house-reverses-course-on-including-fiances-in-trump-travel-ban.

     [27] This decision was eventually appealed to the Supreme Court, which held that the travel ban exemptions must be broader than the INA categories and could include grandparents.  Trump v. International Refugee Assistance Project, 137 S.Ct. 2080, 2088­–89 (2017).

     [28] See generally Naturalization Act, ch. 71, § 2, 10 Stat. 604 (1855) (securing U.S. citizenship for any alien woman who is lawfully married to a man of U.S. citizenship).

     [29] Id.

     [30] Cf. Sabrina Balgamwalla, Bride and Prejudice: How U.S. Immigration Law Discriminates Against Spousal Visa Holders, 29 Berkeley J. Gender, L. & Just. 25, 65 (2014) (acknowledging that mail-order brides lack information about their future spouse, the U.S. legal system, and their rights).  See generally Marcia Zug, Buying A Bride: An Engaging History of Mail-Order Marriage (2016) (describing the history of mail-order marriage in the United States and the laws encouraging foreign wives and fiancées).

     [31] Naturalization Act, ch.71, § 2, 10 Stat. 604, 604 (1855).

     [32] See generally Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (“[I]t became a maxim of [the common law] that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state . . . .”).

     [33] “One congressional sponsor of the 1855 Act, Francis Cutting of New York, asserted that ‘by the act of marriage itself the political character of the wife shall at once conform to the political character of the husband.’”  Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405, 421 (2005). “[M]arriage to a U.S. citizen husband was considered an act of political consent to the U.S. nation state” and, in fact, it was considered the only way a married woman could “relate to the state.” Id. at 421–22.

     [34] See Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship 33-38 (1998).

     [35] Balgamwalla, supra note 30, at 31–32.

     [36] Tanya Ballard Brown, That time American Women Lost Their Citizenship Because They Married Foreigners, NPR: Code Switch (Mar. 17, 2017), http://www.npr.org/sections/codeswitch/2017/03/17/520517665/that-time-american-women-lost-their-citizenship-because-they-married-foreigners.

     [37] The law required women to submit to their husbands’ authority and adopt his political allegiances.  Consequently, foreign women married to citizen men were considered incapable of presenting a national security risk because, regardless of their previous loyalties, once married, they would naturally adopt their husbands’ views and loyalties.  See, e.g., Brief for Professors of History, Political Science and Law as Amici Curiae for Respondents at 14, Morales-Santana v. Lynch, 136 S. Ct. 2545 (2016) (No. 15-1191), 2016 WL 5800340 (stating, “In the very design of the derivative citizenship statute, as it applied to mixed-nationality married couples, one can see the imprint of the male headship principle and the corresponding belief that the wife and children derived their political and cultural character from the husband-father”).

     [38] Expatriation Act, ch. 2534, § 3, 34 Stat. 1228, 1228 (1907) (providing that “any American woman who marries a foreigner shall take the nationality of her husband”).  See also Mackenzie v. Hare, 239 U.S. 299, 311 (1915) (upholding the constitutionality of the Expatriation Act).

     [39] Cable Act, ch. 411, § 3, 42 Stat. 1021, 1022 (1922).  This Act did not apply to women who married men unable to naturalize; these women still lost their citizenship.  Volpp, supra note 33, at 433 (noting this group was primarily Asian men).

     [40] Tied up in nineteenth-century notions about female loyalty and duty was the view that women were a civilizing influence and that they could help alleviate the threat of lawless or shiftless men.  In the immigration context, wives were also seen as reducing the perceived racial purity threat posed by unmarried foreign-born men.  Female immigrants tended to marry men of the same ethnic backgrounds while foreign-born men often did not.  Consequently, foreign wives and fiancées reduced the number of foreign men marrying American-born women (particularly those of a different ethnic background) and were viewed as a solution to an immigration threat rather than contributing to it.  For example, one study on German immigration between 1870 and 1910 noted “among immigrants who were single at migration, endogamy registered around 95% for German women, while it fluctuated closer to 50% for German men.”  Donna Gabaccia, Seeking Common Ground 71–72 (1992).

     [41] Under the Quota Act, immigrant wives were considered non-quota immigrants while immigrant husbands only received preferential status.  Quota Act, ch. 190, §§ 4(a), (d), 13(c), 43 Stat. 153, 155, 162 (1924) (exempting wives and fiancées from race-based and national-origin immigration restrictions).

     [42] The initial act was passed in 1945 and was amended in 1947 to make exceptions for racially excludable wives.  In addition, in 1946, the Act was amended to include fiancées of war veterans.  See GI Fiancées Act of June 29, 1946, ch. 520, 60 Stat. 339 (1946); War Brides Act of Dec. 28, 1945, ch. 591, 59 Stat. 659 (1945).  See also Act of June 28, 1947, ch. 160, 61 Stat. 190 (1947) (extending the Attorney General’s authority to admit the fiancées of members of the American armed forces as temporary visitors); and see Act of July 22, 1947, ch. 289, 61 Stat. 401 (1947) (amending the War Brides Act).

     [43] See e.g., Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 593, 614 (1991) (citing Marion F. Houstoun et al., Female Predominance of Immigr. to the United States Since 1930: A First Look, 18 Int’l Migration Rev. 908, 909 (1984)); Nancy Root & Sharyn Tejani, Undocumented: The Roles of Women in Immigration Law, 83 Geo. L.J. 605, 613 (1994) (noting that “women account for the majority of spouse-based immigration”); Katherine Donato & Donna Gabaccia, Gender and Internal Migration 26 (2015) (noting that “heavily female migrations to the United States are from countries with major U.S. military bases, suggesting that family formation and unification…offer a powerful explanation for feminization”); and Ariel G. Ruiz et al., Immigrant Women in the United States, Migration Pol’y Inst. (Mar. 20, 2015), http://www.migrationpolicy.org/article/immigrant-women-united-states (noting men tend to immigrate for work and are a higher percentage of the undocumented population).

     [44] See, e.g., Congr. Budget Office, Immigration Policy in the United States: An Update (2010) (demonstrating that the majority of immigration is family based).

     [45] See, e.g., Stephen H. Legomsky, Immigration and Refugee Law and Policy 131 (2d ed. 1997) (stating that immigration laws enacted in 1952 promoted, for the first time, a comprehensive group of preferences in support of family unity).

     [46] Immigration and Nationality Act § 101(a)(15)(K)(i), 8 U.S.C. § 1101 (2012).

     [47] Spouses of citizen are non-quota immigrants while spouse of LPRs receive preference.  See 8 U.S.C. § 1151(b) (2012) (noting the aliens not subject to numerical limitations).  See also Peter H. Schuck, The Re-Evaluation of American Citizenship in Challenge to the Nation-State: Immigration in Western Europe and the United States 191, 205 (Christian Joppke ed., 1997) (“‘[I]mmediate relatives’ of citizens receive a preferred immigration status without regard to numerical quotas, and citizens’ siblings and adult children have a preferred status under the numerical quota system. In contrast, the spouses and unmarried children of resident aliens qualify for a numerically limited preference, and their siblings receive no preference at all.”).

     [48] Some of these include the K-1 fiancé visa, 8 U.S.C. § 1101(a)(15)(K) (2012); U visas, 8 U.S.C. § 1101(a)(15)(U) (2012), for spouses that have been subject to domestic violence by a U.S. citizen or permanent resident; and the V visa, 8 U.S.C. § 1101(a)(15)(V) (2012), for spouses and minor children of permanent residents who have been waiting more than three years for admission (these spouses are not normally exempt from the yearly quotas).

     [49] Spouses of U.S. citizens need only wait three years after receiving a green card before applying for citizenship rather than the normal five.  INA § 319(a), 8 U.S.C § 1430(a) (2012).

     [50] The feminization of immigration is not universal.  As immigration scholar Donna Gabaccia has noted, “In none of the other major receiving nations, for example Canada, Australia, New Zealand, and Israel, does this pattern prevail.”  Gabaccia, supra note 40, at 25.

     [51] See, e.g., Balgamwalla, supra note 30, at 32 (2014) (“[A]lthough the INA provisions are now gender-neutral on their face, most family-based immigrants are still women.”). See also Silvia Pedraza, Women and Migration: The Social Consequences of Gender, 17 Ann. Rev. Soc. 303, 306 (1991) (summarizing literature attributing global female migration, including to the U.S., to family relationships).

     [52] See, e.g., Martha L. A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 Va. L. Rev. 2181, 2182 (1995) (suggesting that immigration law replicates the antiquated gender norms of coverture by recreating the traditional conception of the family; one that is headed by a husband who “performs as the head of the household, providing economic support and discipline for the dependent wife and children, who correspondingly owe him duties of obedience and respect).” See also Balgamwalla, supra note 30, at 31 (arguing “that the rights of immigrant women, including dependent spouses, are still limited by regulations that uphold antiquated gender norms”).

     [53] United States v. Virginia, 518 U.S. 515, 533 (1996).  Since the 1970s, the Court has repeatedly held sex-based distinctions based on presumed societal roles are highly suspect.  See, e.g., Frontiero v. Richardson, 411 U.S. 677, 682–83 (1977); Craig v. Boren, 429 U.S. 190, 198–99 (1976); Reed v. Reed, 404 U.S. 71, 76–77 (1971).

     [54] 137 S. Ct. at 1700-01.

     [55] In a 2016 interview Bill O’Reilly asked Trump, “You want to profile Arab or Muslim men.  How would that work?”  To which Trump replied, “Well, we have no choice.”  See Aaron Blake, Donald Trump Doesn’t Call his Position Racial Profiling. It is., Wash. Post: The Fix (Sept. 20, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/09/20/donald-trump-doesnt-call-his-position-racial-profiling-it-is/?utm_term=.8bfa614cb43a.

     [56] The focus on Arab men, particularly in relation to women, can be seen in the fact that the travel ban contains a provision for the study and publication of information about honor killings in the U.S. The purpose of this provision is not a concern about domestic violence.  The administration has slashed the budgets of other domestic violence programs, ones that affect far more women.  According to a 2014 study, there are fewer than thirty honor killings a year while more than 1,500 women are murdered as a result of general domestic violence.  Given these numbers, the administration’s focus on honor killings is clearly an attempt to cast Muslim men, particularly those in close family relationships, as especially dangerous.  See Jesse Singal, Here’s What the Research Says About Honor Killings in the U.S., N.Y. Mag.: Daily Intelligencer (Mar. 6, 2017), http://nymag.com/daily/intelligencer/2017/03/heres-what-the-research-says-about-american-honor-killings.html.

     [57] 135 S. Ct. 2128, 2132 (2015).

     [58] 338 U.S. 537 (1950).

     [59] Id. at 551 (Jackson, J., dissenting)

     [60] Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 960–64 (1995).

     [61] Id. at 550 (Jackson, J., dissenting)

     [62] Weisselberg, supra note 60, at 958–59.

     [63] See generally Ellen Raphael Knauff, The Ellen Knauff Story (1952).

     [64] Weisselberg, supra note 60, at 962–64.

     [65] Chad, which is Muslim majority, was also added to the list, while Sudan was dropped.  In addition, unlike earlier versions of the ban, this one has no set expiration date although it must be reviewed every 180 days.  See Peter Margulies, Travel Ban 3.0: The Hawaii TRO is Right on the Statute, Lawfare, (Oct. 17, 2017, 8:20 PM), https://www.lawfareblog.com/travel-ban-30-hawaii-tro-right-statute.

     [66] Judge Theodore Chang of the Maryland District Court issued a nationwide TRO of the ban based on a finding that it violated the Establishment clause. Steven Dinan, Judge Theodore D. Chang Rules Against Donald Trump’s Muslim Ban, Wash. Times (Oct. 18, 2017) https://www.washingtontimes.com/news/2017/oct/18/judge-theodore-d-chang-rules-against-donald-trumps/.  See also Marjorie Cohen, Trump’s Muslim Ban 3.0 is Still Unconstitutional, Salon (Oct. 2, 2017, 3:58 AM) https://www.salon.com/2017/10/02/trumps-muslim-ban-3-0-is-still-unconstitutional_partner/ (quoting Becca Heller, director of the International Refugee Assistance Project, stating “‘Of [the newly added] countries, Chad is majority Muslim, travel from North Korea is already basically frozen, and the restrictions on Venezuela only affect government officials on certain visas.’  She added, ‘You can’t get any more transparent than that.’”).

     [67] Judge Derrick Watson of the Hawaii Federal District Court found the ban “plainly discriminates based on nationality” and as a result, violates 8 U.S.C. § 1152(a)(1)(A) which prohibits discrimination based on national origins in the issuance of immigrant visas.  See Dahlia Lithwick, Trump’s Travel Ban Gets Blocked Again (Again), Slate (Oct. 17, 2017, 5:37 PM) http://www.slate.com/blogs/the_slatest/2017/10/17/federal_judge_temporarily_blocks_trump_s_latest_travel_ban.html.

     [68] The ban also includes a number of other changes from the previous version including providing reasons for banning entrants from certain countries and treating different countries differently. Together these changes may make the ban constitutionally permissible.  See Elie Mystal, Travel Ban 3.0 Could Work, Slate (Sept. 26, 2017, 3:01 PM) http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/trump_finally_achieved_a_patina_of_legalism_in_his_new_travel_ban_to_cover.html (explaining why this version of the ban is “probably going to be considered legally fine”).

     [69] The inclusion of North Korea and Venezuela is unlikely to change this fact.  Regardless of the ban, travel from North Korea was already exceedingly rare and the restrictions on travel from Venezuela are limited to a small group of governmental officials traveling on specific visas.  See Cohen supra note 66.

By Hailey Cleek & Raquel Macgregor

On November 6th, the Fourth Circuit granted a hearing en banc to review President Trump’s third Executive Order iteration on immigration. The new Presidential Proclamation (“Proclamation”), like its predecessors, restricts immigration from several Muslim-majority countries. The case was appealed to the Fourth Circuit after the District Court of Maryland granted in part a preliminary injunction blocking the new Proclamation.[1] Given the past Fourth Circuit and Supreme Court rulings blocking President Trump’s first two Executive Orders, the Fourth Circuit is likely to affirm the injunction in part.

The Fourth Circuit Struck Down the Previous Executive Order

In March of 2017, the Fourth Circuit largely upheld the Maryland District Court’s ruling blocking implementation of an Executive Order signed by President Donald Trump.[2] In the Executive Order, the Trump Administration had temporarily suspended new visas for travelers from six Muslim-majority countries for ninety days and the admission of new refugees into the United States for 120 days.[3] The Fourth Circuit held that the Executive Order violated the Establishment Clause because it was motivated by a discriminatory animus toward Muslims.[4] The Supreme Court then granted certiorari and partially stayed the injunction. Furthermore, because the Fourth Circuit Order had expired by “its own terms” on September 24, 2017, the Supreme Court vacated the judgment, as the appeal no longer presented a “live case or controversy.”[5]

The New Presidential Proclamation

On September 27, 2017, President Trump issued a new Presidential Proclamation. This Proclamation keeps restrictions on five of the six original countries (Iran, Libya, Somalia, Syria, and Yemen), lifts restrictions on visitors from the Sudan, and adds new restrictions on visitors and immigrants from Chad, North Korea, and Venezuela.[6] In both previous executive orders, all banned countries were majority Muslim. However, the Proclamation now includes two non-majority Muslim countries: North Korea and Venezuela.[7]

The new restrictions vary by country. Immigrants and nonimmigrants from Chad, Libya, and Yemen are barred from entry into the United States, on business, tourism, or through business-tourist visas.[8] Likewise, Iranian citizens are barred from entry with an exception for students, provided that they receive extra screening.[9] The Proclamation also bars immigrants and nonimmigrants from North Korea and Syria as well as immigration by citizens of Somalia.[10] Yet, the restrictions placed on Venezuela only impacts Venezuelan government officials and their families.[11]

Despite the changes to the immigration order, the Maryland District Court enjoined Section 2 of the Proclamation. In order to obtain a preliminary injunction, plaintiffs must show that: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in their favor, and (4) the injunction is in the public interest.”[12] The district court ultimately found that Plaintiffs were likely to succeed on their Establishment Clause claim and that the Proclamation likely violates §1152(a) of the Immigration and Nationality Act (“INA”) which prohibits discrimination based on nationality in issuing immigrant visas. Yet, the court found that the balance of equities only allowed enjoining the Proclamation on behalf of “individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”[13] Thus, the injunction bars the Proclamation’s impact on individuals with immediate family members in the United States. Moreover, the injunction does not apply to individuals traveling from Venezuela or North Korea as Plaintiffs have not demonstrated how individuals from those countries with a bona fide relationship with the United States will be harmed.

Arguments for Upholding the Presidential Proclamation

In the appellant’s opening brief, the government argues that the district court abused its discretion in granting a preliminary injunction because the President’s actions are not subject to judicial review and the elements required to grant a preliminary injunction are not satisfied. Regarding justiciability, the government contends that a denial of a visa is not subject to judicial review.[14] Yet, this argument blatantly ignores that the Supreme Court allowed judicial review of the past two executive orders.[15]

However, the government focuses its brief on its likelihood of success on the merits under both the plaintiff’s statutory and constitutional claims. First, the government argues that the Proclamation is consistent with the INA because the President has broad discretion to suspend entry of aliens whenever they “would be detrimental to the interests of the United States” under 8 U.S.C. §1182(f).[16] The government contends that 8 U.S.C. §1152(a)(1)(A), which prohibits discrimination of nationality in the issuance of immigrant visas, does not in fact conflict with the President’s broad discretion.[17] Instead, the government dubiously claims that the prohibition against nationality discrimination only applies after the President has full discretion to “limit the universe of individuals eligible to receive visas,”[18] which would effectively render §1152(a)(1)(A) meaningless.

The largest hurdle President Trump will face is convincing the court that the purpose of this Proclamation differs from his previous executive orders. In response to plaintiff’s establishment claim, the government claims that because the ban no longer targets only Muslim-majority countries (given the addition of North Korea and Venezuela), the purpose behind the Proclamation is to protect the United States from terrorism. The Proclamation asserts that it has singled out Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia after a “global review” by the Department of Homeland Security (“DHS”) and Department of State which identified these countries as having “inadequate practices or otherwise present heightened risks.”[19] Thus, by relying on the DHS review, the Proclamation has distinguished itself from previous travel limitation executive orders. Yet, this argument will likely face significant criticism given that the Proclamation included Somalia, a majority Muslim country, in its list of restricted countries even though the DHS report deemed the country to have adequate information-sharing practices.[20]

Arguments against the Presidential Proclamation

Plaintiffs assert that the Proclamation violates various provisions of the INA.[21] Primarily, plaintiffs argue that the Proclamation violates § 1152(a) of the INA,[22] which bars discrimination on the basis of nationality in the issuance of immigrant visas. Specifically, §1152(a) provides that, with certain exceptions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]”[23] The Maryland District Court already considered the “interplay” between § 1182(f) and § 1152(a) and concluded that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas.[24] While the government could argue that the suspension of entry is not analogous to the issuance of visas, Judge Thacker of the 4th Circuit has already suggested that this argument will not be successful.[25] Here, unlike previous travel limitations used by both Presidents Reagan and Carter, the Proclamation has no end date and no requirement of renewal.[26] This creates a permanent ban on immigration from the Designated Countries, thus stopping the issuance of immigrant visas indefinitely. Thus, the bar on entry is equivalent to a ban on issuing immigrant visas based on nationality. Moreover, the Ninth Circuit found that the executive order violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.[27] Consequently, plaintiffs are likely to succeed on their claim that the Proclamation violates § 1152(a) non-discrimination.

Plaintiffs argue that the Proclamation violates the Establishment Clause. Citing Larson v. Valente, the plaintiffs contend that the “primary effect” of the Proclamation “burden[s] . . . [a] selected religious denomination” through its immigration restrictions which overwhelmingly impact Muslims.[28] Moreover, under the Lemon v. Kurtzman[29] framework, to withstand an Establishment Clause challenge: (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’”[30] Challengers argue that this new Proclamation, similar to the last two executive orders, is primarily motivated by religious intolerance. Despite the “changed nomenclature” and selective inclusions of agency recommendations, the very first line of the order identifies the Proclamation as an “outgrowth” of the previous Executive Order attempts to limit travel.[31] Moreover, the Trump administration’s public statements about the new Proclamation indicate that it is the same in substance to the previous executive orders and that changes are “mostly minor technical differences.”[32] Plaintiffs in the Fourth Circuit highlight that “contours of the ban” still reflect a “religious ‘gerrymander.’”[33] Thus, Plaintiffs will argue that the Proclamation is still animated by the desire to ban Muslims, violating the Establishment Clause’s commend that the Government not target or disfavor people based on their religion.

Lastly, the government’s own delay in implementing the Proclamation spurs skepticism. The Trump administration has repeatedly emphasized the need for immediate action in crafting the travel bans.[34] The Proclamation details that the President “act[s] to protect the security and interests of the United States and its people.”[35] Yet, despite the government’s claims for urgency in halting travel, the Executive Order deferred implementation of the bulk of its restrictions for almost a month.[36] Thus, the government has undermined its own claims of urgency by delaying implementation while still not correcting deficiencies that made prior orders unlawful.

Conclusion

The Fourth Circuit is likely to side with Plaintiffs in granting an injunction in part given both the district court’s preliminary injunction as well as the Fourth Circuit and Supreme Court’s past partial injunctions. While the newest rendition of the ban attempts to distance itself from the religious animus that motivated the first two Executive Orders, the new Proclamation is largely still motivated by a non-secular purpose. Following the language of the Supreme Court, the Fourth Circuit’s decision will likely center on whether individuals from the Designated Countries have a “credible claim of a bona fide relationship with a person or entity in the United States.”[37] Thus, the Fourth Circuit will likely enjoin the Proclamation from barring entry to individuals that have immediate family members in the United States.

_______________

[1] Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017).

[2] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017), vacated No. 16-1436, 2017 WL 4518553.

[3]  Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 9, 2017).

[4] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017).

[5] See Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553, at *1 (Oct. 10, 2017).

[6] Pete Williams, Trump Restricts Visas From Eight Countries as Travel Order Expires, NBC News (Sept. 25, 2017, 8:35 AM), https://www.nbcnews.com/politics/immigration/trump-restricts-visas-eight-countries-travel-order-expires-n804366.

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *40 (D. Md. Oct. 17, 2017).

[13] Id. at *88; see Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

[14] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[15] See generally Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

[16] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

[20] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *78 (D. Md. Oct. 17, 2017).

[21] First Cross-Appeal Brief for Appellees at 23, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

[24] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *20 (D. Md. Oct. 17, 2017).

[25] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 637 (4th Cir. 2017), (Thacker, J., concurring) (“Here, the ultimate effect of what EO–2 actually does is require executive agencies to deny visas based on nationality.”).

[26] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017).

[27] Hawaii v. Trump, 859 F.3d 741, 774, 779 (9th Cir. 2017).

[28] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Larson v. Valente, 456 U.S. 228, 255 (1982).

[29] 403 U.S. 602 (1971).

[30] Id. at 612–13.

[31] See Appellee’s Opposition to Motion to Stay at 4, Hawaii v. Trump, (9th Cir. 2017) (No. 17-17168); see Proclamation, supra note 1.

[32] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *70 (D. Md. Oct. 17, 2017).

[33] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–35, 538 (1993)).

[34] See Donald Trump (@realDonaldTrump), Twitter (June 3, 2017, 7:17 P.M.), https://twitter.com/realDonaldTrump/status/871143765473406976 (“We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”); Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time (June 6, 2017), http://time.com/4808270/sean-spicer-donald-trump-twitter-statements (Former Press Secretary Sean Spicer has previously stated that the President’s tweets should be considered official statements).

[35] Proclamation, supra note 1.

[36] See id. (The Proclamation was announced on September 27th, yet many of the restrictions were not set to take effect until October 18th.).

[37] Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

By Kelsey Hyde

On March 14, 2017, the Fourth Circuit amended their March 13, 2017 published opinion in the case of Cantillano Cruz v. Sessions III where the Court granted a petition for review of a final order from the Board of Immigration Appeals (BIA). In its decision, the Court reversed the administrative court’s denial of asylum to Luz Marina Cantillano Cruz (Cantillano Cruz), and remanded the case to BIA for further proceedings. In reversing the agency’s determination, the Court found that the BIA erroneously concluded that Cantillano Cruz failed to meet the statutory nexus requirement for asylum relief.

Factual Background Leading to Asylum Claims

Cantillano Cruz, a citizen of Honduras, began living with the late Johnny Martinez (Martinez) in 2003. Although the couple never married, they were considered married by the surrounding community and also had two children together. In 2007, Martinez obtained employment working for Danny Avila (Avila) as a personal bodyguard. Avila claimed to be a “fisherman” and Martinez regularly accompanied him on “fishing trips” for approximately five years. However, Martinez eventually discovered that Avila worked closely with organized crime groups of Honduras and Colombia, trafficking drugs and firearms. In 2012, Martinez disclosed to Cantillano Cruz his plan to quit based on Avila’s criminal conduct. A week later, Martinez left for a “fishing trip” with Avila and never returned.

Cantillano Cruz and family members searched for Martinez, unsuccessfully, and were threatened by Avila to cease looking and asking questions, or they would “suffer the same fate” as Martinez. Avila then continued these threats by calling Cantillano Cruz, loitering outside her home, firing weapons near her home, threatening the lives of her children, and even killing her dogs.

In 2014, as a result of these threats by Avila, Cantillano Cruz fled Honduras with her young children, entered the United States without authorization, and requested asylum relief. The Department of Homeland Security (DHS) charged her as an alien present in the United States without permission, under 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded this, but filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Determinations of Immigration Judge & Board of Immigration Appeals

The Immigration Judge (IJ) found that although Cantillano Cruz was a member of a particular social group, the nuclear family of Johnny Martinez, she failed to show past or future persecution on account of membership in this group.  Instead, the IJ concluded the major reason Avila targeted Cantillano Cruz was to deter her from contacting the police, a reasoning which could have occurred regardless of their familial relationship, and consequently denied her application for asylum and withholding of removal. The IJ also rejected her request for protection under CAT, finding that the threats against her had never escalated to violence and that Avila only threatened to commit violence if Cantillano Cruz contacted the police, which she had expressed no intention of doing. In Cantillano Cruz’s appeal to the BIA, the BIA adopted the conclusions made by the IJ, supplemented with its own reasoning, and dismissed her appeal. On appeal to the Fourth Circuit, Cantillano Cruz claimed that the BIA and IJ both erred in their conclusion that she was not persecuted based on her membership in Martinez’s nuclear family.

Issues & Standards of Review On Appeal

An applicant seeking asylum must establish her inability, or unwillingness, to return to her home country based on persecution or well-founded fear of persecution on account of some protected ground, such as nationality or membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A). Persecution occurs “on account of” one’s membership in an immediate family when that relationship is at least one central reason for the feared prosecution. Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4th Cir. 2011). The Fourth Circuit does not limit this “statutory nexus requirement” to situations where one’s membership is the sole reason for their persecution, but instead recognizes that many central reasons can motivate such actions. Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015).

On appeal, the Fourth Circuit considered both of the lower rulings, on account of the fact that the BIA adopted yet supplemented the IJ’s conclusions. The court reviewed de novo the question of whether the BIA and IJ applied the correct legal standard in determining whether Cantillano Cruz met the statutory nexus requirement. Then, the court reviewed the BIA and IJ’s determinations of factual questions, those regarding Avila’s motivations for the persecution, by considering whether these conclusions were supported by substantial evidence. Finally, the Fourth Circuit reviewed the IJ’s factual findings as conclusive unless another reasonable adjudicator would be compelled to reach a different conclusion.

Fourth Circuit Grants Petition & Reverses Administrative Court’s Findings

The Court held that the IJ and BIA applied an improper, excessively narrow standard when interpreting the statutory nexus requirement. Ultimately, the IJ and BIA improperly focused on one central reason for Avila’s threats, to deter Cantillano Cruz from contacting the police, but failed to recognize the other central and intertwined reason for the threats, her existence in the nuclear family of Martinez. The court noted that the IJ and BIA essentially seemed to require that Cantillano Cruz prove the threats were solely based on her status as Martinez’s wife, which was an improper condition to mandate.

Additionally, the court emphasized that the evidence clearly showed Cantillano Cruz knew about Avila’s criminal conduct as a result of her status as a member of Martinez’s nuclear family. Thus, the court reviewed the record and found that it was sufficient to compel the conclusion that Cantillano Cruz satisfied the statutory nexus requirement, as the evidence clearly demonstrated that she was persecuted as a result of her familial relationship with Martinez and the knowledge she obtained about Avila as a result of this relationship. Accordingly, the BIA and IJ’s conclusions were found to be contrary to law and an abuse of discretion, necessitating their reversal.

Because of this conclusion, the Court did not address whether Cantillano Cruz satisfied the requirements of CAT relief by showing the likelihood of torture if returned to Honduras. However, the Court held that, if asylum relief was still declined, the BIA ought to reconsider the CAT claim consistent with the conclusions of this opinion.

By Kelsey Mellan

On January 26, 2017, the Fourth Circuit issued a published opinion in United States v. Moreno-Tapia, a constitutional appeal of an immigration removal and sentencing order. Juan Moreno-Tapia (“Moreno-Tapia”) argued he was unconstitutionally deported in 2009 and thus his conviction for illegal reentry into the United States in 2014 was also unconstitutional. The Supreme Court case in which Moreno-Tapia based his constitutional argument on was decided in 2010. The Fourth Circuit determined that this particular case does not apply retroactively. Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate his removal order and sentencing determination.

Facts & Procedural History

Moreno-Tapia immigrated to the US from Mexico when he was a child. While he applied for legal permanent residency, the process never advanced due to his eventual removal from the US. In 2006, Moreno-Tapia was charged in a North Carolina court with three counts of felony indecent liberties with a child. At the time of his plea, Moreno-Tapia was aware that he would have to register as a sex offender. However, he claimed his attorney did not inform him that he would be subject to deportation because of his convictions. Shortly after Moreno-Tapia was released from prison in 2009 for these charges, he was deported to Mexico pursuant to a removal order from the Department of Homeland Security. Between 2009 and 2011, Moreno-Tapia reentered the US without permission and returned to North Carolina. He failed to register as a sex offender, despite his convictions for a qualifying sex offense. He was subsequently arrested for an unrelated crime. Because of that arrest, the authorities became aware of his current illegal presence in the US.

In June 2014, Moreno-Tapia was indicted in the Middle District of North Carolina on the charges of illegal reentry by a removed alien and failure to register as a sex offender. Moreno-Tapia pleaded guilty to the illegal reentry charge, and the government agreed to dismissal of the failure to register charge. After these proceedings, Moreno-Tapia returned to North Carolina court and filed a Motion for Appropriate Relief (“MAR”) seeking to vacate his state indecent liberties convictions. He relied on Padilla v. Kentucky to argue that his convictions should be set aside because his lawyer’s failed to inform him of the immigration consequences of his guilty plea – so the plea was not knowing and voluntary. The North Carolina court agreed and vacated his indecent liberties convictions.

Moreno-Tapia then returned to the district court to challenge the removal order on which his illegal reentry charge was based, pursuant to the North Carolina state court decision. He moved to vacate the 2009 removal order and to dismiss both counts of the indictment against him – illegal reentry and failure to register. The district court denied all of Moreno-Tapia’s motions. In September 2015, the district court held a sentencing hearing on the illegal reentry charge using the vacated indecent liberties convictions as the basis for his offense level under the federal Sentencing Guidelines. He was eventually sentenced to 27 months’ imprisonment. This timely appeal follows.

Motion to Vacate the Removal Order

The core issue in this case was whether Moreno-Tapia’s removal order should be vacated, without which he may not be convicted of illegal reentry. Moreno-Tapia’s main argument was that because his lawyer failed to inform him of the immigration consequences of his guilty plea to the indecent liberties charge, the subsequent removal order and reentry charges are unconstitutional. As previously mentioned, he relied on Padilla for the proposition that without this information, the North Carolina state court rightly overturned the original conviction.

However, the Fourth Circuit determined lawyers have no duty to advise aliens of potential legal infirmities in prior criminal proceedings. Thus, his state convictions were constitutionally infirm. However, Moreno-Tapia pleaded guilty in the 2006 case, which was 4 years before the Supreme Court’s decision in Padilla. Because the Supreme Court subsequently decided in Chaidez v. United States that Padilla does not apply retroactively, any failure by Moreno-Tapia’s lawyer to warn him of the possible immigration consequences of his guilty plea would not render Moreno-Tapia’s convictions constitutionally unsound.

That the state MAR court vacated Moreno-Tapia’s convictions under Padilla did not change the Fourth Circuit’s analysis because the state court erroneously applied Padilla retroactively. Thus, there was no federal constitutional violation on which Moreno-Tapia could have based his argument here.

Motion to Vacate the Sentencing Determination

The Sentencing Guidelines on which Moreno-Tapia’s 27-month sentence was based provides for sentence enhancements based on specific offense characteristics. The relevant guideline here, § 2L1.2, imposes an enhancement to the offense level of a defendant who “previously was deported after a conviction for a crime of violence.” Moreno-Tapia argues that because his convictions were vacated after his removal and illegal reentry, they should not have been taken into account at sentencing. In United States v. Moran-Rosario, this court held that eh relevant time for determining whether a prior conviction qualifies for enhancement under § 2L1.2 is the date of the defendant’s deportation and not the date of the subsequent illegal reentry charge or sentencing. Moreno-Tapia argued there should be an exception to this rule if the prior conviction was vacated as a result of a constitutional infirmity, egregious error of law, or determination of innocence. However, the Fourth Circuit determined it had no occasion to decide on this issue in this case. As previously mentioned, because Padilla does not apply retroactively, Moreno-Tapia’s state convictions were constitutionally obtained.

Disposition

Therefore, the Fourth Circuit affirmed the district court’s denial of Moreno-Tapia’s motion to vacate both the removal order and sentencing determination.

 

By Ali Fenno

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case Sotnikau v. Lynch.  In Sotnikau, the Fourth Circuit addressed whether involuntary manslaughter in Virginia constitutes a crime of moral turpitude that justifies a U.S. permanent resident’s removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I).  After examining the scope of Virginia’s involuntary manslaughter statute, the court held that the crime did not constitute moral turpitude and thus could not be grounds for the deportation of defendant Ihar Sotnikau (“Sotnikau”).

Involuntary Manslaughter Conviction

On June 18, 2010, Sotnikau, a U.S. permanent resident from Belarus, was drinking with Randy Hines (“Hines”) when Hines fell into the Elizabeth River in Portsmouth, Virginia.  Sotnikau attempted to find Hines in the water, but after no success, returned to a local homeless shelter. He had neither alerted the authorities nor sought assistance to find Hines. At the homeless shelter, someone overheard him speaking about the events that transpired at the river.  They alerted the authorities, and on June 19, 2010, the authorities found Hines’s body in the river. Sotnikau was then charged with involuntary manslaughter. He plead guilty to the offense and was sentenced to five years in prison.

DHS Institutes Removal Proceedings

On October 21, 2011, the Department of Homeland Security (“DHS”) instituted removal proceedings against Sotnikau pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I), which allows the removal of any alien who “is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission” into the United States. In response, Sotnikau sought asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”). The Immigration Judge (“IJ”) summarily denied Sotnikau’s requests on August 14, 2012, concluding that involuntary manslaughter was a crime of moral turpitude which accordingly gave grounds for deportation. On Sotnikau’s appeal, the Board of Immigration Appeals (“BIA”) remanded the case for the IJ to “set forth his reasoning as to why Sotnikau was convicted of a crime involving moral turpitude.”

On remand, the IJ concluded that moral turpitude was inherent in Virginia’s involuntary manslaughter statute because in In re Franklin, the BIA had concluded that moral turpitude was inherent in Missouri’s involuntary manslaughter statute. The IJ reasoned that the Franklin holding was applicable in this case because the mental state required to support a conviction for involuntary manslaughter under Missouri law is the same as that for Virginia law: recklessness.  Sotnikau again appealed, but the BIA affirmed the IJ. The BIA agreed that Franklin should control the case at hand because of the similarities between Missouri’s and Virginia’s involuntary manslaughter statutes; the elements of the crime in both states purportedly had the same essential elements. Accordingly, Sotnikau’s appeal was dismissed and the BIA ordered his removal. Sotnikau then appealed.

Issue on Appeal and Standard of Review

The dispositive issue on appeal was whether involuntary manslaughter under Virginia law is categorically a crime involving moral turpitude pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I). Because this question was a question of law, the Fourth Circuit reviewed the issue de novo.

Moral Turpitude is Not Inherent in Virginia’s Statute

The Fourth Circuit first noted that a categorical approach must be taken to address this issue; every element of a crime must be analyzed to determine if the statute solely encompasses behavior involving moral turpitude. The court stated that if any element of a crime does not involve moral turpitude, then 8 U.S.C. § 1227(a)(2)(A)(i)(I) is inapplicable.

The court then defined “moral turpitude” as “involv[ing] conduct that not only violates a statute but also independently violates a moral norm.” It further enumerated two essential elements of such a crime: (1) a culpable mental state and (2) reprehensible conduct. It included that criminally reckless, knowing, and intentional conduct as conduct that can constitute moral turpitude, but explicitly exempted criminally negligent conduct. It reasoned that criminally negligent conduct cannot be considered moral turpitude because offenders acting with criminal negligence do not have “a conscious disregard of risks attendant to [their] conduct,” and pursuant to In re Perez-Contreras, moral turpitude cannot be inherent in a statute without “intent required for conviction[ or] any conscious disregard of a substantial and unjustifiable risk.”

In applying this framework to the case at hand, the Fourth Circuit first looked to the elements of Virginia’s involuntary manslaughter offense. The court noted that unlike the Missouri statute underlying the Franklin decision, an offender could be convicted under the Virginia statute for not only criminally reckless conduct, but also criminally negligent conduct. Thus, Sotnikau could have been convicted under Virginia’s statute without showing any conscious disregard of a substantial and unjustifiable risk. Accordingly, the Fourth Circuit concluded that involuntary manslaughter under Virginia law does not constitute a crime involving moral turpitude.

Conclusion

The Fourth Circuit concluded that crimes involving criminal negligence, such as Virginia’s involuntary manslaughter offense, do not constitute crimes involving moral turpitude. As such, it granted Sotnikau’s petition for review, vacated the Final BIA Order, and remanded for further proceedings, holding that Sotnikau was not subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)(I).

asylum-1262370_960_720

By Mike Stephens

In a civil case, Zhikeng Tang v. Loretta E. Lynch, decided today, October 28, 2016, the Fourth Circuit denied petition for review of an order from the Board of Immigration Appeals (“Board”) denying requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). The Court ultimately denied the Petitioner’s petition for review because substantial evidence supported the Board’s decision.

Facts and Procedural History

The Petitioner, Zhikeng Tang (“Tang”), is a native and citizen of China. In July 2009, Tang entered the United States illegally. Tang was introduced to Catholicism in 2011 and began attending a church. In 2011, Tang filed for asylum and the United States government began removal proceedings.

At a hearing before an immigration judge (“IJ”), Tang requested asylum, withholding of removal, and CAT protection based on his religious practice. Tang produced evidence of his membership in the Catholic Church and testified that his faith was genuine. Tang argued that his practice of the Catholic faith required attendance in an underground church in China and not a church sanctioned by the Chinese government. Tang claimed that removal to China would result in persecution from the Chinese government due to his participation in an underground church. In support of this argument, Tang provided the IJ with letters from his family that showed underground churches in China were persecuted. In addition, Tang also produced two State Department reports that criticized the Chinese government’s treatment of religious groups in China.

While the IJ found Tang’s testimony to be credible, the IJ rejected Tang’s asylum request. The IJ found that Tang did not provide sufficient evidence to show that Tang “faces an objectively reasonable risk of persecution on account of his Roman Catholicism.’ Additionally, because Tang’s claim for asylum failed, the IJ determined Tang had failed to meet the higher standard required for withholding of removal. Lastly, the IJ also concluded that Tang did not show sufficient evidence that his chances of torture were “more likely than not” upon removal to China.

The Board, on administrative appeal, upheld the IJ’s conclusion that Tang had failed to meet his burden for asylum or withholding of removal. The Board noted that Tang had not shown that the Chinese government knew or would gain knowledge of Tang’s faith and that Tang had not “established that there is a pattern or practice of persecution in China of persons similarly situated to him.” In addition, the Board concluded that Tang had waived his CAT claim because he did not challenge the IJ’s ruling on this claim. Tang appealed, challenging the Board’s denial of asylum, withholding of removal, and CAT protection.

Asylum

Tang argued the Board erred in denying his request for asylum, claiming that he met his burden of proof required for showing a fear of persecution in China. Tang claims that the instances of persecution evidenced in the letters from China and the State Department reports show a “pattern or practice of persecution in China.”

The Fourth Circuit rejected Tang’s argument and upheld the Board’s denial of asylum. The Court held that Tang’s evidence was not sufficient to allow a reasonable fact-finder “to conclude that the requisite fear of persecution existed.” While the Fourth Circuit found that Tang satisfied the subjective component required for asylum, the Court determined that Tang had failed to demonstrate an objective fear of persecution.

The Court found that Tang did not meet either of the requirements to satisfy the objective component provided for within 8 C.F.R. § 1208.13(b)(2). First, the Court concluded that Tang had waived a challenge to the Board’s conclusion that he would face individual persecution from the Chinese government because he failed to raise this argument. Second, the Fourth Circuit determined that Tang did not satisfy his burden of proving “an objectively reasonable chance” of facing a pattern or practice of persecution in China. The Court noted that the two State Department reports that Tang provided showed that the Chinese government recognized the Catholic faith and also permitted practice of the faith in churches and at home. Additionally, the reports and the letters from Tang’s family only showed “random” or “isolated and sporadic” instances of harassment. Thus, because the persecution was not “thorough or systematic,” the Fourth Circuit declined to “disturb the Board’s conclusion that Tang failed to establish a well-founded fear of persecution.”

Withholding of Removal

Tang also claimed the Board’s refusal to grant his application for withholding of removal was erroneous. Tang argued that the evidence he provided in support of his claim for asylum was sufficient to grant his withholding of removal.

The Fourth Circuit held that Tang did not meet the necessary burden to entitle him to a withholding of removal. The requisite burden of proof in a withholding of removal claim is that of a “clear probability,” which means “it is more likely than not that [Tang’s] life or freedom would be threatened in the country of removal.” The Fourth Circuit noted that this burden of proof “is more demanding than that of asylum” and that an applicant’s claim for withholding of removal would fail when their claim for asylum failed. Therefore, the Fourth Circuit held that Tang had failed to satisfy his burden or proof and was not entitled to a withholding of removal.

Protection Under CAT

Lastly, Tang appealed the Board’s denial of protection under CAT. Tang asserted that his evidence showed that the Chinese government’s torture of unregistered church members was “prolific in China.”

The Fourth Circuit refused to review this claim due to lack of jurisdiction. Under 8 U.S.C. § 1252(d)(1), courts can only review an order of removal once the “alien has exhausted all administrative remedies available to the alien as of right.” The Court held that Tang did not exhaust his administrative remedies because he failed to bring this issue on appeal before the Board.

Disposition

The Fourth Circuit ultimately denied Tang’s petition for review of the Board’s decision.

By Anthony Biraglia

In the civil case of Oxygene v. Lynch, the Fourth Circuit denied in part and dismissed in part a petition for review of orders denying Wilerms Oxygene’s (“Oxygene”) application for deferral of removal under the Convention Against Torture (“CAT’) and a subsequent motion to reopen his removal proceedings. In a published opinion released on February 22, 2016, the Court found that it lacked jurisdiction to review the motion to reopen based on Oxygene’s status as aggravated felon under the Immigration and Nationality Act, and agreed with the Board of Immigration Appeals (“BIA”) decision to deny Oxygene’s application for deferral of removal under the CAT because Oxygene had not proven that Haitian officials had a specific intent to torture him upon his return. The Court thus dismissed Oxygene’s petition for review of the order denying his motion to reopen his removal proceedings, and denied his petition for review of the order denying his deferral of the removal under the CAT.

State Crime Convictions, Removal Proceedings, and Attempted CAT Deferral

Oxygene obtained lawful permanent resident status in the United States in 1996, two years after fleeing political violence in his native Haiti. Five years later, in 2001, Oxygene was convicted of several state crimes in Virginia, including burglary, grand larceny, robbery, and using a firearm to commit a felony. The Department of Homeland Security (“DHS”) commenced removal proceedings against Oxygene under 8 U.S.C. § 1227(a)(2), which provides that, among other things, aliens convicted of aggravated felonies or firearm offense are deportable. Oxygene conceded that his Virginia convictions made him removable under the statute, but applied for deferral of removal under the CAT.

Oxygene had a removal hearing in front of an Immigration Judge (“IJ”) to consider his application for deferral. During this hearing, Oxygene submitted evidence, including State Department reports, nongovernmental organization reports, and news articles, about the deplorable prison conditions in Haiti. Oxygene expressed a fear that he would face indefinite detention if deported, and that that detention would result in the activation of his latent tuberculosis without access to sufficient medical care. Despite finding the conditions of the Haitian prisons horrid and noting that some instances of mistreatment in Haitian prisons could constitute torture, the IJ denied Oxygene’s application for deferral because he had failed to prove that it was more likely than not that he would suffer torture upon his return to Haiti. He also failed to prove that Haitian authorities intentionally and deliberately detain deportees to inflict torture, which is required under the Foreign Affairs Reform and Restructuring Act (“FARRA”) that implemented the directives of the CAT.

Oxygene appealed to the BIA, asking it both to reverse the IJ’s denial and, alternatively, to remand the case to the IJ to consider whether of Oxygene’s recent diagnoses of post-traumatic stress disorder and depression affected the IJ’s ruling. The BIA affirmed the IJ’s decision and denied the motion for remand. Oxygene’s motion for reconsideration, which the BIA treated as a petition to reopen, was subsequently denied. Oxygene filed two appeals to the Fourth Circuit challenging both the BIA’s denial of the application for deferral and its denial of his motion to reopen. The Court consolidated the questions.

Jurisdictional Question

The Fourth Circuit explained that because Oxygene was an aggravated felon for the purposes of removal, its jurisdiction was limited by Congress through 8 U.S.C. § 1252 (a)(2)(C) to legal and constitutional questions. Therefore, the Court had to determine whether Oxygene’s arguments raised legal or constitutional questions, rather than factual questions, before it proceeded with any analysis of those arguments. Oxygene presented two arguments with respect to the BIA’s denial of his application for deferral, only one of which, namely that the precedent on which the BIA relied stated the incorrect legal test for the intent necessary to establish torture, raised legal issues. The Court retained jurisdiction over this question. The Court found that Oxygene’s challenge to the motion to reopen his removal proceedings raised factual issues over which it did not have jurisdiction. As a result, the Court addressed only Oxygene’s argument that In re J-E, the precedent upon which the BIA relied, incorrectly stated the legal test for the intent necessary to establish torture under the CAT.

CAT and FARRA Require that Torture be Specifically Intended

Congress implemented the CAT through the FARRA legislation in 1998. FARRA did not define torture, but rather instructed the Justice Department to promulgate regulations that reflected the Presidential and Senate understanding of the CAT. This understanding, which was reflected in the Justice Department regulations, included a specific intent requirement for torture. More specifically, the acts in question must be perpetrated with an intent to cause severe mental or physical injury. Acts do not constitute torture if mental or physical injury is an unintended consequence. In re J-E, the BIA adopted the specific intent requirement that each entity responsible for interpreting the CAT understood to be inherent in the definition of torture for the purposes of FARRA.

In re J-E also addressed the issue of the poor conditions in Haitian prisons. The BIA found that although Haitian officials were detaining deportees with knowledge of the poor conditions, the officials did not intentionally keep the prisons in poor condition to inflict torture on the deportees. The BIA concluded that the poor conditions were the result of a lack of resources and severe economic difficulties in the country rather than a delicate effort to torture prisoners.

The Court agreed with the BIA’s reasoning in In re J-E, finding that the specific intent requirement as the BIA had interpreted was consistent with the President’s and Congress’s understanding of torture under the CAT. It therefore afforded it deference in applying the same principles in Oxygene’s case.

Denied in Part and Dismissed in Part

For the reasons stated above, the Fourth Circuit denied Oxygen’s petition for review of an order to deny his application for deferral under the CAT, and dismissed his petition for review of the BIA’s denial of his motion to reopen his removal proceedings.

 

Ornate fountain with statue

By George Kennedy

On February 16, 2016, the Fourth Circuit issued its published opinion in the agency review case Adebowale Oloyde Ojo v. Loretta Lynch. In its order, the Fourth Circuit vacated the order of the Board of Immigration Appeals (“BIA”) denying a motion to reopen the removal proceedings of Adebowale Oloyde Ojo, a native of Nigeria and adopted son of a United States citizen.

Ojo’s Residence in the United States

Ojo was born in Nigeria in 1983 and lawfully entered the United States in 1989. Soon after entering the United States, Ojo’s uncle, a United States citizen, became his legal guardian. Ojo lived with his uncle from the age of six to the age of sixteen, at which point Ojo’s uncle filed a petition to adopt Ojo. In 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland entered a judgment of adoption.

Between 2009 and 2012, Ojo was convicted of two-drug related offenses. In light of Ojo’s convictions, and based in the belief that Ojo had not derived U.S. citizenship as an adoptive child under 8 U.S.C. § 1101(a)(43)(B), the Department of Homeland Security (“DHS”) initiated proceedings to remove him from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii).

Statutory Framework and Removal Proceedings

Under 8 U.S.C. § 1227(a)(2)(A)(iii), the DHS is authorized to order that certain individuals be removed from the United States if the individuals are aliens and commit an “aggravated felony.” Ojo’s drug-related offenses qualify as “aggravated felonies” and therefore, the DHS is authorized to order his removal so long as he qualifies as an alien. A foreign-born child, however, is not deemed an alien, and thus is deemed a naturalized U.S. citizen under 8 U.S.C. § 1431(a) and § 1101(b)(1)(E) as long as the child was adopted by a citizen-parent while under the age of sixteen years.

In a removal proceeding in 2014, the immigration judge determined that Ojo was removable since he had committed an aggravated felony and was not a U.S. citizen. Critically, the court held that since Ojo was not adopted by his uncle until he was seventeen years old, he did not qualify as an adopted child under § 1101(b)(1)(E), and therefore had not become a U.S. citizen under 8 U.S.C. § 1431. The Board of Immigration Appeals affirmed the immigration judge’s ruling, agreeing that Ojo did not qualify as an adopted child under the statute because of Ojo’s adoption taking place after he had turned sixteen.

Ojo’s Motion to Reopen Removal Proceedings

Based upon a nunc pro tunc order, Ojo filed a motion to reopen the removal proceedings against him. The nunc pro tunc order, a court order that gives retroactive legal effect, was entered by a Maryland state court and made Ojo’s adoption effective on the day before he turned sixteen. Therefore, under the nunc pro tunc order, Ojo qualified as a U.S. citizen by being adopted by his U.S. citizen uncle while under the age of sixteen. The Board of Immigration Appeals, however, denied Ojo’s motion to reopen, holding that it does not recognize nunc pro tunc orders after a child reaches the age limit for the filing of the adoption petition. On appeal, Ojo alleges that the BIA improperly denied Ojo’s motion to reopen the removal proceedings.

BIA’s Denial of Ojo’s Motion to Reopen Vacated

The Fourth Circuit agreed with Ojo that the BIA should have allowed the reopening of the removal proceedings. In so holding, the Fourth Circuit argued that the BIA’s interpretation of § 1101(b)(1)(E) impermissibly conflicted with the Maryland state court’s nunc pro tunc order since the law of domestic relations is the domain of states and federal agencies may not interfere with the exercise of state power on the subject absent clear congressional authorization.

As the Fourth Circuit emphasized, “the Federal Government, through our history, has deferred to state-law policy decision with respect to domestic relations.” Therefore, federal agency decisions that override the orders of state courts in regards to domestic relations are inherently suspect. As the Fourth Circuit explained, federal agencies need clear Congressional authorization before encroaching upon traditional state powers. In this case, the Fourth Circuit held that the BIA was lacking such authorization.

The BIA, in refusing to reopen Ojo’s removal proceedings, essentially disregarded the nunc pro tunc order of the Maryland state court which declared that Ojo was adopted by his uncle before he turned sixteen and therefore became a U.S. citizen by virtue of that adoption under 8 U.S.C. § 1101(a)(43)(B). The Fourth Circuit held that the BIA’s disregard of the nunc pro tunc order was impermissible because the BIA is not empowered to review state court adoption orders. Instead, the BIA was obligated to adhere to the order of the Maryland state court which declared that Ojo was adopted before he turned sixteen. Therefore, the BIA should have reopened Ojo’s removal proceedings since the nunc pro tunc order qualified Ojo as a U.S. citizen.

Vacated and Remanded

The Fourth Circuit held that the BIA erred as a matter of law in denying Ojo’s motion to reopen removal proceedings, and consequently vacated the BIA order and remanded the case for further proceedings.

By Anthony Biraglia

In the civil case of Etienne v. Lynch, the Fourth Circuit denied a petition to review an Immigration Board of Appeals decision ordering Eddy Etienne (“Etienne”) to be removed from the United States on the ground that he is an alien who has been convicted of an “aggravated felony.” After determining that jurisdiction existed, the Court turned to Etienne’s argument that his conviction was not an “aggravated felony” under the Immigration and Nationality Act (“INA”). In a published opinion released on December 30, 2015, the Fourth Circuit found that there was no reason to rebut the common-law presumption when interpreting the term “conspiracy,” and thus found Etienne’s conviction for conspiracy under Maryland law to fit within the definition of “aggravated felony” despite Maryland’s lack of an overt act requirement.

DHS Notice of Removal

Etienne entered the United States from Haiti as an undocumented immigrant in 1984. In 1996, Etienne was convicted of conspiracy to violate Maryland’s dangerous controlled substances law. After his release from prison, he continued to live in the United States as an undocumented immigrant until 2010, when he received Temporary Protected Status after an earthquake in Haiti. After denying Etienne renewal of his Temporary Protective Status in 2014, the Department of Homeland Security (“DHS”) initiated removal proceedings by serving Etienne with a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). The Notice of Intent stated that Etienne would be removed pursuant to expedited procedures as an alien convicted of an “aggravated felony.” Etienne checked a box on the form indicating he wished to challenge his removal, but did not attach any supporting documents or contest his removal on the ground that his conviction was not an “aggravated felony” under the statute. DHS later issued a Final Administrative Removal Order for Etienne’s removal. Etienne appealed to the Fourth Circuit after an asylum officer and Immigration Judge (“IJ”) determined that Etienne did not qualify for withholding of removal.

Jurisdictional Question

The Court first considered whether it had jurisdiction over Etienne’s petition for review. The jurisdictional question turned on whether Etienne exhausted his administrative remedies with DHS, which in turned rested on whether Etienne was required to have raised his claim that his conviction did not constitute an “aggravated felony” in DHS proceedings. Etienne argued, and the Court agreed, that DHS’s expedited removal proceedings did not provide an opportunity to challenge the legal basis for that removal.

The Notice of Intent gives aliens four options when contesting removal on the basis of deportability: 1) I am a citizen or national of the United States, 2) I am a lawful permanent resident of the United States, 3) I was not convicted of the criminal offense described above, 4) I am attaching documents in support of my rebuttal and request for further review. The Court held both that this language indicates that only factual challenges are available and that the Notice of Intent offers no obvious opportunity to raise legal challenges in expedited removal proceedings. Because exhaustion of administrative remedies only requires that an alien use all the steps the agency holds out, and the agency did not make it clear that legal challenges must be raised during removal proceedings, the Fourth Circuit determined that it had jurisdiction to consider Etienne’s petition for review.

Etienne’s Conspiracy Conviction Was an “Aggravated Felony” Under the INA 

After concluding that it had jurisdiction, the Fourth Circuit turned to the question of whether Etienne’s 1996 conviction in Maryland of conspiracy to violate controlled substances laws was an “aggravated felony” under the INA. The INA’s definition of “aggravated felony” includes illicit trafficking in a controlled substance and “conspiracy to commit” another “aggravated felony.” Whether Etienne’s conviction falls within this definition turned on whether, under the categorical approach, the term “conspiracy” is defined as it was at common law or by the contemporary meaning of the term, which includes an additional overt act requirement. The categorical approach involves looking only at the elements of a state crime, rather than the defendant’s underlying conduct, to determine whether a particular conviction constitutes an “aggravated felony.” If the elements are the same, the prior conviction counts as an “aggravated felony.”

The Court recognized a general presumption that Congress intends to adopt the common law meaning of statutory terms. At common law, “conspiracy” required only the act of conspiring rather than any overt act to further the conspiracy. One-third of the states retain the common law definition, while the other states require an overt act by the defendant to prove conspiracy. Congress evinced an intent that the INA apply broad when it defined “aggravated” offenses as applying to violations of state and federal law, and thus the Fourth Circuit determined that overriding the common law presumption would lead to the anomalous result that the term “conspiracy” would be null and void as to a third of the states.

Petition for Review Denied

The Court concluded that because the common law definition of “conspiracy” controlled, Etienne’s conviction under Maryland law, which required no overt act in furtherance of the conspiracy, qualified as an “aggravated felony” under the INA. Accordingly, it denied Etienne’s petition for review.

immigration photo

By Paige Topper

On December 2, 2015, in the civil case of Diop v. Lynch, a published opinion, the Fourth Circuit denied a petition for review of an Order of the Board of Immigration Appeals because the Immigration Judge appropriately found petitioner, Madiagne Diop, mentally competent to proceed with the removal process.

Diop’s Illegal Immigration Status and Removal Proceedings

Diop was admitted to the United States from his native country, Senegal, as a temporary visitor on October 15, 1997. Although the visa only permitted Diop to stay in the U.S. until April 14, 1998, Diop continued to reside in the U.S. for the past seventeen years.

On January 14, 2012, Diop was arrested after a psychotic episode at his workplace. As a result of his behavior during the arrest, Diop was transferred to the hospital for a psychological evaluation and given antipsychotic medication before returning to police custody. Stemming from the arrest and subsequent convictions, the Department of Homeland Security served Diop with a Notice to Appear. The Notice deemed Diop removable as a nonimmigrant who violated the Immigration and Nationality Act for overstaying his visa.

In the course of the removal proceedings, Diop appeared before an Immigration Judge (IJ) on five separate occasions. On one of these occasions, the IJ questioned Diop on his competency in understanding the proceedings and communicating with an attorney. Diop affirmed that he understood the proceedings and could discuss his Immigration status with his attorney. Ultimately, the IJ granted Diop voluntary departure or, in the alternative, ordered his removal.

Diop filed an appeal to the Board of Immigration Appeals (BIA), claiming that the IJ should have continued the case in order to allow Diop to receive a psychological evaluation. Specifically, Diop argued that a psychological evaluation would have indicated Diop’s mental incompetency and would have resulted in a hold on his removal. The BIA rejected Diop’s argument as he had no prior history of mental health problems and had already demonstrated his ability to communicate with his attorney. Therefore, the BIA affirmed the IJ’s order of removal.

Mental Competency in Removal Proceedings

Diop’s single challenge on appeal was that the IJ should have continued or administratively closed the removal proceeding to permit Diop to receive a mental health evaluation. The Fourth Circuit noted that competency is an issue of fact. Thus, the IJ’s finding of competency was subject to review under the substantial evidence standard and must be treated as conclusive unless the evidence was such that any reasonable judge would have concluded otherwise.

The process for determining mental competency in removal proceedings was established in Matter of M-A-M. The IJ must start with a presumption of competence. If there are indicia of incompetency, then the IJ should consider three factors to determine whether a respondent is competent to participate in the proceedings. The IJ must consider whether the respondent (1) has a rational and factual understanding of the nature and object of the removal proceedings, (2) can consult with an attorney, and (3) has a reasonable opportunity to examine and present evidence and cross-examine witnesses. This process deliberately gives the IJ discretion to determine competency on a case-by-case basis.

Diop Was Competent to Participate in the Proceedings

The Fourth Circuit found that Diop’s appeal failed at the initial stage of the M-A-M analysis because there were no sufficient indicia of Diop’s incompetency. Although Diop brought up the psychotic episode that led to his arrest, the Fourth Circuit noted that past mental history is not dispositive. Furthermore, the Fourth Circuit found that the IJ’s verbal exchange with Diop indicated his competency because Diop voiced no psychological concerns, understood that the proceedings related to his immigration status, and raised only the objection of expense in calling his attorney.

Moreover, the Fourth Circuit emphasized the fact that Diop had five appearances before the IJ and repeatedly asked for continuances as a means to delay his removal. In particular, Diop had previously argued that his psychotic outburst was brought on by lack of sleep to show that his stable and non-violent nature warranted him a continued stay in the U.S. With Diop making such contradictory arguments, the Fourth Circuit concluded that his appeal was yet another delay tactic.

Fourth Circuit Denied the Petition for Review

The Fourth Circuit determined that the IJ’s actions in ascertaining Diop’s competency were in full compliance with M-A-M. Having found that Diop was fully competent to participate in the removal proceedings, the Fourth Circuit denied the petition for review.

By Elizabeth DeFrance

On December 4, 2015, the Fourth Circuit issued a published opinion in the case, Hernandez-Nolasco v. Lynch, in which the petitioner sought review of orders of the Board of Immigration Appeals (BIA).

Being Kidnapped And Threatened By A Gang After His Brother and Father Were Killed Failed to Meet The Burden of Proving He Would Face Torture If Removed

In 2009, Jose Hernandez-Nolasco, a citizen of Honduras,  entered the United States without authorization at the age of seventeen. In 2012, he pled guilty to possession of cocaine with intent to distribute, a violation of Virginia Code § 18.2-248 and was sentenced to five years. The sentence was suspended.

Sometime later, the Department of Homeland Security issued a Notice of Intent to issue a Final Administrative Removal Order for Hernandez-Nolasco. He claimed he was entitled to withholding of removal under the Immigration Nationality Act (INA) or the United Nations Convention Against Torture Act (CAT) because he would face persecution upon return to Honduras because of his membership in a particular social group. Hernandez-Nolasco’s father and brother were killed by a gang leader, and he left Honduras after being kidnapped and threatened by the same gang.

An Immigration Judge (IJ) held that Hernandez-Nolasco was not entitled to withholding of removal under the INA or CAT because he was convicted of a “particularly serious crime.” The IJ also found that Hernandez-Nolasco was not entitled to deferral of removal under the CAT because he failed to prove he would be subject to torture if returned to Honduras.

On appeal, the BIA affirmed the IJ’s decision. Hernandez-Nolasco filed a motion for reconsideration which was denied by the BIA. Hernandez then petitioned the Fourth Circuit Court of Appeals for review, claiming the BIA erred in determining his drug conviction meets the definition of an “aggravated felony,” rendering him ineligible for relief under the INA and the CAT. He also claims that the BIA erred in holding that he failed to meet his evidentiary burden to qualify for relief under the CAT.

A Drug Trafficking Crime Is Considered An Aggravated Felony

A petitioner is ineligible for relief under the INA or the CAT if he has been convicted of a particularly serious crime. A conviction for an aggravated felony with a sentence of at least five years is considered a particularly serious crime. Under the INA, a “drug trafficking crime” is considered to be an aggravated felony. Any “conviction under a state statute that proscribes conduct necessarily punishable as a felony under the Controlled Substances Act (CSA)” qualifies as a drug trafficking crime.

Hernandez-Nolasco’s Drug Trafficking Conviction Qualifies As A Particularly Serious Crime

Because Hernandez-Nolasco was convicted of a state crime that necessarily constitutes as felony under the CSA, the conviction qualifies as an aggravated felony under the INA. An aggravated felony is considered a particularly serious crime if it results in a sentence of at least five years, thus Hernandez-Nolasco is ineligible for withholding of removal under the INA or the CAT.

Under the INA, the Court’s jurisdiction for review of final orders of removal involving crimes related to controlled substances is limited to constitutional claims and questions of law. The BIA’s finding that Hernadez-Nolasco’s failed to provide enough evidence he would face torture upon his return to Honduras is a question of fact, not law. Thus, the Court lacked jurisdiction to decide the merits of his claim.

Petitions for Review Were Denied In Part And Dismissed In Part

The Court upheld the BIA’s denial of Hernandez-Nolasco’s petition for withholding of removal. The Court lacked jurisdiction to decide the merits of Hernadez-Nolasco’s claim he was entitled to deferral of removal under the CAT.

statue-of-liberty-1205791

By Eric Benedict

On November 25, 2015, the Fourth Circuit issued its published opinion in the immigration case Oliva v. Lynch. The appeal was taken from the Board of Immigration Appeals (“BIA”) after a one-person panel affirmed the Immigration Judge’s (“IJ”) decision to deny Oliva’s application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”). On appeal, Oliva argued that the lower judicial bodies erred by (1) failing to recognize the nexus between his persecution and the proposed social group and (2) for failing to consider evidence that he was a member of a cognizable social group. A unanimous panel of the Fourth Circuit agreed and vacated in part and remanded in part.

Oliva Faces Years of Extortion and Threats for Leaving MS-13 Gang

When he was sixteen years old, Vladimir Oliva joined a gang called Mara Salvatrucha, otherwise known as MS-13 and was trained as a spy. A short time later, after witnessing the brutality of gang life, he decided to leave MS-13. However, MS-13 does not permit its members to leave the gang. A member is permitted to become “inactive” for religious or family reasons, but is required to pay “rent” to the gang. Members who attempt to leave are threatened with death. Oliva moved to a number of different cities in an attempt to evade the gang and the “rent” payments. Ultimately, Oliva spent almost a decade paying almost a third of his income to the gang. When Oliva failed to make payment in 2006, he was severely beaten and again threatened with death.

Oliva Seeks Protection on American Soil

To avoid continued persecution in his native El Salvador, Oliva entered the United States without authorization in 2007. Years later, Oliva continued to receive threatening calls from MS-13, notifying Oliva that he would be killed if he returned to his home country. In 2010, the department of Homeland Security (“DHS”) charged Oliva with removability under the INA.  The following year, Oliva filed an application for asylum and withholding of removal.

The Proceedings Below

After its initial hearing, the Immigration Court denied Oliva’s petition because it believed that MS-13 was not targeting Oliva because of his membership in the group, but rather, was targeting Oliva for money. Oliva appealed the decision and a one-member panel of the BIA dismissed the appeal. Notably, the Immigration Court also based its decision on Oliva’s failure to meet the filing deadline for asylum. However, the BIA did not address the issue, so the issue was not before the Fourth Circuit. Oliva appealed to the Fourth Circuit Court of Appeals.

The Fourth Circuit’s Deference to the BIA and the Fact Finding Standard of Review

Judge Wynn set forth a thorough discussion of the standard by which the Fourth Circuit reviews decisions of the BIA. Notably, the INA sets forth a fairly deferential standard, “[A] decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law.” 8 U.S.C. § 1252(b)(4)(c). In this case, the Court was careful to point out that, “[w]hile a three-member panel of the BIA is entitled to Chevron deference … a one-member panel of the BIA-like the one in this case is entitled to the lesser Skidmore deference.” Finally, the Court noted that while the BIA’s findings of law are reviewed de novo, the BIA’s findings of fact are “conclusive unless no rational factfinder could agree with the BIA’s position.”

Oliva sought asylum under section 241 (b)(3)(A) of the INA, which provides in part that the Attorney General may not remove an alien who is otherwise removable “if the Attorney General decides that the alien’s life or freedom would be threatened in [the country of removal] because of the alien’s … membership in a particular social group…” Under this provision, the BIA dismissed Oliva’s appeal from the IJ first because it found that the alleged groups were not cognizable under the INA and second because Oliva failed to show a nexus between his membership in the group and the persecution he feared. Oliva appealed both of these findings.

Oliva Meets the INA’s Nexus Requirement

Oliva claimed that his persecution was due to his membership in a group. To satisfy the INA’s nexus requirement, an applicant must show that, “his past or threatened persecution was ‘on account of’ his membership in that group.” Importantly, membership in a particular group only has to be a central reason for the persecution, not the only reason for the persecution. The Court qualified this test by noting that membership must not be “merely ‘incidental, tangential, superficial, or subordinate to another reason for harm.’” Explaining that extortion can constitute persecution, the court reversed the BIA’s holding. Judge Wynn noted that “[b]ecause it is undisputed that MS-13 extorted Oliva on account of his leaving the gang, the record compels the conclusion that his persecution was on account of his status as a former member of MS-13.” The Fourth Circuit rejected the BIA’s contention that the gang extorted Oliva due to greed, observing that Oliva’s decision to leave the gang for religious reasons was what placed him in the category of person from which MS-13 demands “rent” payments. Despite a relatively deferential standard of review, the Court reversed the BIA, finding that Oliva satisfied the nexus requirement.

The BIA Erred in Failing to Address Oliva’s Evidence on the “Cognizable Group” Element

Oliva claimed that he was threatened because of his membership in two different groups. First, “Salvadorians who are former members of MS-13 and who left the gang, without its permission, for moral and religious reasons,” and second, “Salvadorians who were recruited to be members of MS-13 as children and who left the gang as minors, without its permission for moral and religious reasons.” A group is cognizable under the relevant portion of the INA if the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” The BIA ended its inquiry after finding that Oliva failed the “social distinction” requirement because the group is not “perceived as a group by society”. However, the parties agreed that the BIA erred by failing to address all of the evidence put forth by Oliva as to the groups social distinction. Therefore, the government agreed that the proper course of action was for the Fourth Circuit to remand the matter to the BIA for consideration of the evidence.

Conclusion

Despite an elevated standard of review, the Fourth Circuit found that the BIA defined the nexus requirement too narrowly. Instead, the Court set forth the proper inquiry and found that Oliva had demonstrated that his membership in the proposed group was a central reason for his persecution. Therefore the Fourth Circuit reversed the BIA on this issue. Second, the Court, on agreement of both parties remanded the matter for consideration of the evidence as to whether or not Oliva’s proposed groups are cognizable under the INA.