Wake Forest Law Review
24Nov

Falsely Claiming U.S. Citizenship on Form I-9 Renders Alien Inadmissible

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By Marcus Fields

Is an Alien Who Falsely Claims United States Citizenship in Seeking Private Employment Inadmissible?

Today in Dakura v. Holder, the Fourth Circuit established that an alien who falsely claims United States citizenship on a Form I-9 in order to gain private employment is barred, as a matter of law, from admission to the United States. Because the Immigration Judge’s finding that Dakura had made such a false claim was supported by the evidence, the Fourth Circuit found that the Board of Immigration Appeals correctly affirmed the decision and thus Dakura’s petition for review was denied.

Dakura’s Story and Summary of Removal Proceedings

In January 2008, Raymond Dakura entered the United States from Ghana on a nonimmigrant F-1 student visa. In March 2008, following the death of his uncle, Dakura relocated from Missouri to northern Virginia and entered into a support agreement with Francis Assamoir, who provided housing and other expenses in exchange for Dakura’s wages. In the process of obtaining employment at Target and McDonald’s Dakura used the identities of two American citizens to complete the Department of Homeland Security’s Employment Eligibility Verification Form I-9. On this form he “attest[ed], under penalty or perjury, that he was a ‘citizen or national of the United States.’”

Approximately a year later, Dakura informed Assamoir that he was terminating their agreement, at which point Assamoir reported Dakura to the authorities. DHS instituted removal proceedings in May, 2010. In August, 2010, Dakura married a United States citizen and subsequently obtained a visa and applied for an adjustment of his status to that of lawful permanent resident. This adjustment application was denied in March, 2012 by an Immigration Judge. On appeal to BIA, the opinion of the Immigration Judge was affirmed.

False Claim Bar and Standard of Review

Both the Immigration Judge and the BIA relied on the ‘false claim bar’ found in 8 U.S.C. § 1182(a)(6)(C)(ii)(I) in reaching their conclusion. The false claim bar prevents any alien who falsely claims to be a United States citizen in order to gain a benefit under Federal or State law (including § 1324a, prohibiting employers from hiring unauthorized aliens) from being admitted to the United States. According to 8 U.S.C. § 1255(a), an alien’s status may not be adjusted to that of lawful permanent resident unless he is admissible. The Fourth Circuit reviewed the legal conclusions of the IJ and the BIA de novo and accepted factual findings as conclusive “unless a reasonable adjudicator would have been compelled to reach a different conclusion.”

An Alien Who Falsely Claims Citizenship on a Form I-9 is Rendered Inadmissible

The Fourth Circuit determined that filling out a Form 1-9 in order to obtain private employment qualified as ‘obtaining a benefit’ under Federal law. It reached this conclusion by relying on the reasoning of other Circuits, its own unpublished decisions (which are non-binding), and comparisons to a nearly identical statute focusing on deportation rather than admissibility. The Court found especially compelling the statute’s explicit mention of 8 U.S.C. §1324a. Since Form I-9 serves as the main compliance and enforcement mechanism for that section, false claims on the Form were clearly meant to be covered by the false claim bar.

Dakura Falsely Claimed to be a United States Citizen on Forms I-9

The IJ initially found that Dakura had specifically claimed to be a United States citizen (rather than a national) on the Forms I-9. The Fourth Circuit found that the evidence confirmed the IJ’s findings. The Fourth Circuit was not persuaded by Dakura’s argument that his use of another’s identity was not a statement that he was a United States citizen. Instead, “the salient fact [was] that Dakura attested on each of the Forms I-9 that he – the person seeking employment – was a United States citizen.

Petition for Review Denied

Because Dakura falsely claimed to be a United States citizen on Forms I-9 in seeking the benefit of private employment his is inadmissible as a matter of law and thus not eligible for adjustment of status. For that reason the Fourth Circuit denied Dakura’s petition for review.

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19Nov

Fourth Circuit Finds Sentence for Illegal Reentry Reasonable

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By Joshua P. Bussen

Today, in US v. Tapia-Martinez, the Fourth Circuit released an unpublished opinion affirming a sentence by the Eastern District of North Carolina.  The defendant, Mr. Tapia-Martinez, appealed a three-year sentence set down by the E.D.N.C after he plead guilty to a charge of illegal reentry of an aggravated felon.

Is a Three-Year Sentence Reasonable? 

The sole issue on appeal was whether the E.D.N.C.’s sentence of three years was reasonable for the crime of illegal reentry of an aggravated felon.

What Happened?

Mr. Tapia-Martinez has not been in the United States for seven years.  He attempted to use this fact to convince the district court judge to mitigate his sentence, as he claimed it showed that he had “demonstrated his willingness to obey the law and remain outside of the country.”  Despite his “willingness to obey the law,” Tapia-Martinez claimed that he only reentered the country to regain custody of his autistic son, and planned to return to Mexico immediately after collecting him.  However, the district court did not find his argument persuasive, sentencing him to three-years in prison, a sentence at the “high end” of the Guidelines range.

How is a “Reasonable” Sentence Determined?

Appellate courts review sentences for reasonableness under an abuse of discretion standard. However, if the sentence is within the range of reasonable sentencing under the “properly calculated Guidelines,” the appellate court will presume that it was proper unless the “defendant shows ‘that the sentence is unreasonable when measured against the 18 U.S.C. § 3553(a) (2012) factors.’ ”

How Did the Court Make Its Decision?

The Fourth Circuit affirmed this judgment because the sentence was within the “range” of reasonable sentences, thus creating a rebuttable presumption of reasonableness that the defendant failed to rebut.  The court found that the defendant’s argument amounted to little more than a “disagreement” with the district court’s weight afforded to the sentencing factors; an argument that was not sufficient to overcome the strong presumption in favor of reasonableness in this case.

What Was the Outcome?

The sentence of thirty-six-months given to Mr. Tapia-Martinez by the E.D.N.C. was affirmed.

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18Nov

New Legal Consequences Prevent Stop-Time Rule From Retroactive Application

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By: Caroline Daniel

In Jaghoori v. Holder, a published opinion released today, the Fourth Circuit granted Abdul Azim Jaghoori’s petition for review and ultimately remanded the case back to the Board of Immigration Appeals (“BIA”) for further proceedings.

Review Granted to Determine if Stop-Time Rule Applies Retroactively

Petitioner Abdul Azim Jaghoori appealed the BIA’s denial of his application for cancellation of removal.  Typically, for an alien to succeed on an application for cancellation of removal, he must have resided in the United States for a continuous period of seven years.  However, a statutory provision known as the “stop-time rule” provides that the commission of the crime during those seven years can “stop the clock” on that period of continuous residence.

Here, the BIA applied the stop-time rule, deeming Jaghoori ineligible for cancellation of removal based on a crime he committed within his first seven years of residence.  Jaghoori appealed this decision, arguing that the stop-time rule did not apply as his offense and subsequent guilty plea took place before the stop-time rule was put into effect.  Applying the “traditional presumption against retroactivity,” the Court granted Jaghoori’s review.

Petitioner’s Status as a Lawful Permanent Resident Challenged Based on Criminal Activity

Although born in Afghanistan, Jaghoori moved to the United States as a young child, and has resided here for most of his life.  He obtained lawful permanent status in 1989.  Since that time he has been charged and convicted of several crimes, including a credit card theft in 1995.  He pled guilty to this offense, and received a 90 day suspended sentence.

In 2009 and 2010, the Department of Homeland Security brought several claims for removability against Jaghoori.  Jaghoori applied for cancellation, which was denied by the BIA based on his 1995 conviction.  The BIA reasoned that, although the stop-time rule was enacted after this conviction, his subsequent criminal activity (including a conviction in 2010) made him removable under the rule.

Jaghoori was not deported to Afghanistan – his minority ethnicity and religious beliefs made the country unsafe for him.  The denial of his application for cancellation of removal, however, prohibits him from pursuing citizenship.  He could also be deported to another country.   Jaghoori appealed the denial of his application for cancellation, arguing that the stop-time rule, enacted in 1996 and taking effect in 1997, should not retroactively apply to his 1995 criminal charge.

 Stop-Time Rule Should Not Apply Retroactively Where the Application Leads to a New and Serious Consequence

The Court reviewed the appeal de novo and applied a two-step analysis taken from Landgraf v. USI Film Products.  Under this analysis, the Fourth Circuit looked to: (1) the congressional intent in the application of the stop-time rule, and (2) if the retroactive application of the rule would create new or different consequences for actions already past.

First, the Court determined that there was no clear congressional intent in how the stop-time rule should be applied.  The Court noted that, “If Congress has made its intent clear, while acting within the limits of its power, our inquiry is concluded.”  Congressional intent must be “clear” and “unambiguous.”  Here, neither party took a position on Congress’ intent, and the Fourth Circuit also determined that Congress expressed no clear intent.

Accordingly, the Court proceeded to the second step in the Landgraf analysis: whether “the statute would attach new legal consequences to prior events.”  In its analysis of this factor, the Court considered a recent Seventh Circuit decision involving the retroactivity to the stop-time rule.  In Jeudy v. Holder, the Seventh Circuit determined that “applying the stop-time rule to Jeudy’s 1995 offense and conviction ‘would attach a new and serious consequence to Jeudy’s criminal conduct that was completed before the [stop-time rule] took effect.'”

The Fourth Circuit analogized the similar facts in Jaghoori’s case to Jeudy, and determined that retroactively applying the stop-time rule in this case would create a new and detrimental consequence, “render[ing permanent relief from removal] an impossibility.”  The Court held that, “Absent a clear congressional directive, we can not assume the rule to have this effect.”

Finally, the Court noted that although the Second and Tenth Circuits had ruled in cases where the retroactive application of stop-time rule was not impermissible, these situations were factually distinguishable from Jaghoori’s case.  In each of the cases, the alien had committed crimes that had rendered him “immediately deportable.”  Additionally, neither alien had reached seven years of continuous residence.

Jaghoori’s Criminal Conduct Not Condoned, But Stop-Time Rule Cannot Be Used as a Penalty

The Court stated that it did not condone or excuse Jaghoori’s criminal activity in its holding.  The Fourth Circuit noted that Jaghoori had faced the repercussions of his actions: he had been convicted of the crimes committed and he had been issued an order of removal.  The Court explained, “We simply hold that the government cannot use the stop-time rule to add yet one more repercussion to that list.”  Accordingly, the Fourth Circuit remanded the case to the BIA for “proceedings consistent with this opinion.”

Justice Niemeyer dissented, arguing that BIA’s ruling should have been upheld “because the legal consequence on Jaghoori’s immigration status only attached once Jaghoori committed a second crime 13 years after [the stop-time rule’s] enactment.”

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7Nov

Adverse Credibility Rulings Are Distinguishable from Willful Misrepresentation in Immigration Hearings

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by David Darr

On Wednesday, in Yang v. Holder, the Fourth Circuit granted the petitioner’s petition for review, vacated the decision of the Board of Immigration Appeals (BIA) that affirmed an immigration judge’s (IG) decision to deny the petitioner’s application for relief from deportation, and remanded the case further proceedings

Was There Evidence of Yang’s Misrepresentation and Did the INS Give Proper Notice?

The issues before the court were whether the IJ’s ruling of misrepresentation was legally and factually improper and whether the Immigration and Naturalization Service (INS) failed to provide proper notice to the petitioner of a change in procedure requiring him to provide updated biometric data.

Yang’s Experience with the Immigration Process

The petitioner, Xing Yang Yang, entered the United States without inspection in 1993 and has remained in the United States since. Yang is a Chinese national who lives with his mother, who is a lawful permanent resident, and has two children, both American citizens by birth, by Zheng, who is not an American Citizen and only sees Yang sporadically. In 1993, Yang applied for asylum and withholding of removal from the country. The INS initiated removal proceedings against Yang in 1996 and ordered his deportation in 1997 when he failed to show for a deportation hearing. Because of Yang’s mother’s status as a lawful permanent resident, she was able to petition for an immigration visa on Yang’s behalf in 2001 and this allowed Yang to file an application to adjust his status to “permanent resident.” The visa petition was approved by INS in 2004, but Yang still had to have a hearing on the matter.

Yang, alternatively, sought relief from deportation by filing an asylum application based on his political activities in China, which included being involved in a student protest and associating with an oppressed political group. Yang also feared that the Chinese government would persecute him because he would have to take his two children with him and China has a one-child policy. In 2008, the IJ at the initial hearing (Initial IJ Hearing) asked Yang to review his application for errors. Yang corrected his application by crossing out a statement that said that Yang had been arrested in China. Yang claimed the reason for this discrepancy in his application was due to an inadequate translator being available when a service filled out his application. Yang testified at the hearing that Zheng was nowhere to be found so he had to take care of his children with his mother’s help. He also testified that his application misstated his involvement with a political group in China. Yang’s mother’s testimony contained some inconsistencies as well when she stated that she lived in New York, but then immediately changed it to living with Yang and Zheng. When asked why Yang would say the Zheng is nowhere to be found, Yang’s mother agreed that Zheng is nowhere to be found now but that she stops by occasionally. The interpreter had difficulty communicating with Yang and his mother because the interpreter spoke Mandarin, while Yang and his mother spoke another dialect. However, Yang’s attorney said that the Mandarin interpreter was fine (the Fourth Circuit took issue with this, but noted that they did not have jurisdiction on this matter). The Initial IJ Hearing decided that Yang was not eligible for adjustment because his visa petition was not currently available and that Yang’s testimony lacked credibility and because of this he needed corroborating evidence of why asylum would be appropriate.

Yang appealed the decision from the Initial IJ Hearing to the BIA on the basis that the IJ ruled incorrectly. During this time, Yang’s visa petition became current, meaning that IJ’s ruling that Yang’s application was not currently available no longer applied. Due to this, the BIA remanded the case to the IJ in 2010 and left the asylum issue to be decided later. This led to a second hearing (Second IJ Hearing) in 2011. Yang put on similar evidence at this hearing, but was not present for the ruling, which denied Yang’s adjustment application and waiver application (this waiver application would allow the IJ to waive Yang’s inadmissibility due to substantial hardship). The IJ ruled that Yang abandoned his application because he failed to keep current biometric data with the INS; he is inadmissible because he fell below the poverty line; and Yang engaged in willful misrepresentation or fraud to procure immigration benefits, making him ineligible. The IJ decided that Yang did not qualify for a waiver because he did not show substantial hardship. Yang was ordered to be removed to China.

In 2011, Yang appealed the decision from the Second IJ Hearing to the BIA. Yang supplemented this appeal with his mother’s medical records (to show substantial hardship) and his 2011 tax returns, which showed he was no longer poverty and therefore was not inadmissible for that reason. The BIA affirmed the decision for asylum from the Initial IJ Hearing and also affirmed the denial of adjustment and waiver from the Second IJ Hearing. The BIA justified the second IJ’s decision that Yang engaged in fraud and willful misrepresentation by using the credibility finding from the initial IJ. The BIA also allowed Yang’s tax returns to be used, but not his mother’s medical records because they were not previously unavailable. Because of Yang’s tax returns, the BIA ruled that they defeated the inadmissibility claim, but it was not worthy of remand due to the fraud and willful misrepresentation. Yang petitioned for review directly from the Fourth Circuit.

Credibility Findings Have a Different Standard than Willful Misrepresentation

Adverse credibility findings cannot be used to predicate a finding of willful misrepresentation or fraud because the standards are different for each. Additionally the INS must provide proper notice when it changes its rules or else it cannot hold someone accountable for not following those rules.

The Fourth Circuit Looks at the Difference Between Credibility Findings and Willful Misrepresentation

An adverse credibility ruling is made by the IJ to impact the burden of proof required for asylum. If an adverse credibility ruling is issued by the IJ, as it was here, then it means that the petitioner needs some corroborating evidence beyond mere testimony to show a need for asylum. These adverse credibility rulings allow for minor omissions, but it is a question of fact for the IJ based on the demeanor of the petitioner and the consistency between written and oral statements. Willful misrepresentation makes an alien inadmissible to the United States. The government must show this by clear and convincing evidence and the misrepresentation must go to a material fact of immigration benefits. Willful misrepresentation requires knowledge of a false statement and making that statement. Fraud requires intent to deceive. An adverse credibility ruling, willful misrepresentation, and fraud all have different legal standards.

The IJ and BIA based their willful misrepresentation and fraud rulings solely on the adverse credibility ruling. Therefore, each lower proceeding used a legally erroneous standard in determining Yang’s inadmissibility and they each need to apply the correct standard on remand. Further, there is not enough evidence in this case to show willful misrepresentation because there is no evidence of Yang’s knowledge of making false statements. Yang’s difficulty with interpreters might have been the reason to blame for the discrepancies. The misrepresentations also, while relevant, did not rise to the level of material. Therefore, there was not enough evidence to show willful misrepresentation and the IJ and BIA applied the incorrect standard for willful misrepresentation.

A second issue on appeal was whether the INS gave Yang notice that he had to submit updated biometric data after a change in the law. The Attorney General conceded at oral argument that there is no evidence that the INS sent notice to Yang. The Fourth Circuit found this concession sufficient to show that Yang was not required to submit the biometric data.

The Fourth Circuit Remands the Case

For the reasons listed above, the Fourth Circuit granted Yang’s petition for review, vacated the BIA decision, and remanded the case to the BIA for further proceedings.

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1Nov

Fourth Circuit Clarifies – Lack of Credibility Not the Same as Willful Misrepresentation

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By: Rolf Garcia-Gallont

This week, in Xing Yang Yang v. Holder, the Fourth Circuit vacated a Board of Immigration Appeals (“BIA”) decision that erroneously upheld an inadmissibility decision based on an adverse credibility ruling.

Background

Xing Yang Yang, a native of China, entered the United States without inspection in January, 1993. In March of the same year, Yang applied to the Immigration and Naturalization Service (“INS”) for asylum and withholding of removal, but in 1997 he was ordered deported in absentia. In March 2001, Yang’s mother, a lawful permanent resident in the United States and qualified relative, petitioned for an immigration Visa on Yang’s behalf.

Yang filed various applications for relief from deportation under the Immigration and Nationality Act (“INA”),  including a request for asylum and withholding of removal, protection under the Convention Against Torture, and adjustment of status based on his mother’s visa petition.

Initial IJ Decision: Adverse credibility ruling and denial of asylum

In June 2008, an immigration judge (“IJ”) conducted an evidentiary hearing on Yang’s asylum application. The IJ rendered an adverse credibility determination, finding that Yang’s demeanor undermined his credibility. The IJ observed that Yang had taken notes with him to the witness stand, and appeared to refer to them during his testimony; that he had signaled his mother before and during her testimony, and that her testimony had changed after the signal; and that there were several inconsistencies between Yang’s asylum application and his testimony at the hearing. The IJ then denied Yang’s asylum application.

Second IJ Decision: Denial of adjustment of status due to willful misrepresentation

Under 8 U.S.C § 1182(a)(6)(C)(i), an alien who seeks to procure an immigration benefit by “fraud or willfully misrepresenting a material fact” is inadmissible. The Second IJ Decision denied Yang’s adjustment application partly because the IJ determined that Yang had engaged in fraud and willful misrepresentation to procure an immigration benefit, and was thus ineligible for adjustment. The IJ justified the willful misrepresentation ruling by invoking the Initial IJ Decision’s credibility ruling.

Yang appealed both the Initial and Second decisions to the BIA, and the BIA affirmed both. Yang then  petitioned the Fourth Circuit for review of the BIA’s decision.

The Second IJ Decision Committed Legal Error by Using an “Adverse Credibility” Ruling as the Equivalent of “Willful Misrepresentation”

Adverse credibility and willful misrepresentation are distinct legal concepts and require separate analyses. An adverse credibility determination does not require any deliberate and voluntary misrepresentation – inconsistencies between a petitioner’s application and subsequent testimony may suffice. On the other hand, a determination that an alien made a willful misrepresentation requires that deliberate and voluntary misrepresentation be shown by clear and convincing evidence.

The Fourth Circuit held that the Second IJ Decision had committed legal error because it based its willful misrepresentation ruling solely on the credibility ruling of the Initial IJ Decision, without any other basis for finding the deliberate and voluntary requirements.

To Render a Petitioner Inadmissible Under 8 U.S.C. § 1182(a)(6)(C)(i), the Government Must Show by Clear and Convincing Evidence that the Petitioner’s  Willful Misrepresentation Was Used to Seek an Immigration Benefit

The Fourth Circuit then went on to review the record to see if it contained any factual basis on which the Second Decision could have reached the conclusion that Yang was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).

In his original asylum application, Yang stated that he feared harm from the Chinese government based on his political participation in the 1989 student protests at Tianamen Square, and his association with the Falun Gong group, which had been prosecuted by the Chinese government.

At the Initial IJ Hearing, Yang explained that a “travel service” had prepared his original asylum application forms because he did not speak English at the time. Reviewing the application at the hearing, he clarified that he had participated in demonstrations in Fuzhou supporting the Tianamen student protests, and that while he had contact with Falun Gong, he was not relying on these contacts for purposes of his asylum application.

The Fourth Circuit remarked that while a comparison of Yang’s asylum application and his Initial IJ Hearing testimony did show contradictory statements, the record did not show that these statements had been knowing and deliberate misrepresentations to gain an immigration benefit. In fact, to the extent it contradicted his asylum application, the testimony harmed his prospects of gaining the immigration benefit he was seeking – asylum. Additionally, the language barrier could explain the variations between the application and his testimony.

The Record Did Not Contain Clear and Convincing Evidence that Yang Attempted to Procure an Immigration Benefit by Deliberately and Voluntarily Making False Statements.

Willful misrepresentation to procure an immigration benefit must be shown by clear and convincing evidence in order to render an alien inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Because the record lacked substantial evidence that would have supported such a determination, the Court held that the Second IJ Decision erred in determining that Yang was inadmissible under § 1182(a)(6)(C)(i), and the BIA erred in affirming in that respect.

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17Oct

Failure to Register as a Sex Offender is Not a Crime of Moral Turpitude

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By Lauren Durr Emery

In Khalid Mohamed v. Eric Holder, Jr., the Fourth Circuit reversed a Board of Immigration Appeals (“BIA”) decision which ordered Mohamed’s removal from the country.  The BIA decision was based on Mohamed’s 2010 conviction for sexual battery and his 2011 conviction for failing to register as a sex offender. Under  U.S.C. § 1227(a)(2)(A)(ii), an alien is deportable if they have been convicted of two or more crimes of moral turpitude.

In defense of its position, the BIA cited its previous decision in Matter of Tobar-Lobo–which held that failure to register as a sex offender is a crime of moral turpitude.  It argued that sex offenders pose a serious risk to society and that their failure to register is “inherently base or vile” and therefore should be considered a crime of moral turpitude. The BIA asked the Fourth Circuit to defer to its reasonable interpretation of the statute. Mohamed conceded that his conviction for sexual battery was a crime of moral turpitude, but contended that failure to register as a sex offender was not.  Instead, Mohamed argued that failure to register was a “non-penal, regulatory offense.”

In its decision, the Fourth Circuit explained that committing a crime of moral turpitude means more than simply violating a written statute; otherwise, such a requirement would be superfluous.  A crime of moral turpitude violates moral norms.  Citing its previous decisions, the Court defined a crime of moral turpitude as, “conduct that shocks the public conscience as being inherently base, vile, or depraved.”

Though the BIA focused on the purpose behind the statute–reducing the risk of repeated sex offenses–the statute itself does not prohibit the repetition of a sex offense.  It is a regulatory or administrative provision which merely requires the registration of a particular class of people.  Such regulatory offenses implicate no moral value other than the duty to obey the law.  Therefore, the Court declared that failure to register as a sex offender is “categorically not a crime involving moral turpitude” and that the BIA’s contrary interpretation was unreasonable and undeserving of deference.

Because Mohamed’s failure to register was not a crime involving moral turpitude, the BIA erred in its order to remove him from the country.  The Fourth Circuit reversed the BIA’s decision and remanded the case with instructions to vacate Mohamed’s order for removal.

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16Oct

Application Denied: Must Be Under 21 at Time of Entry

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By Rolf Garcia-Gallont

At What Point During the Immigration Process Must a K-2 Visa Holder Be Under 21 Years Old to Be Eligible for Conditional Permanent Residence as a “Minor Child”?

In Regis v. Holder, the Fourth  Circuit denied a petition to review an order of the Board of Immigration Appeals (“BIA”). The Petitioner, Noel Regis, was a citizen of the Philippines who had entered the United States on a K-2 visa he had received as the minor child of his mother, a nonimmigrant fiancée K-1 visa holder. After his mother married the U.S. citizen who had petitioned for the family’s K visas, Regis applied to adjust his status to lawful conditional permanent resident.

The United States Citizenship and Immigration Services (“USCIS”) denied Regis’ application because he had turned 21 before he entered the United States and was therefore not a qualifying “minor child” under the Immigration and Nationality Act (“INA”). An immigration judge agreed with USCIS, and the BIA affirmed.

In his petition for review, Regis contended that a K-2 visa holder’s eligibility for adjustment of status should be determined not by his age on the date of entry into the United States, but rather by his age at the time he initially sought the K-2 visa.

The K-1 / K-2 “Fiancé(e) Visa” Process

A K-1 visa allows the foreign-citizen fiancé(e) of a U.S. citizen to travel to the United States and marry his or her U.S. Citizen sponsor within 90 days of arrival. After the marriage, the foreign citizen applies for adjustment of status to that of “lawful conditional permanent resident.” If the foreign citizen has a minor child that is accompanying or following to join the parent, that child may receive a K-2 visa and apply for adjustment of status after the parent’s marriage.

Section 1255 of the INA, which addresses adjustment of status for K-1 and K-2 nonimmigrant visa holders, does not specify at what point during the immigration process a “minor child” is required to be under 21 years of age to be eligible for adjustment of status.

Regis’ K-2 visa was issued on February 13, 2007, five days before his 21st birthday. Regis’ mother married her U.S. citizen fiancé in the United States on February 26, 2007. Regis did not accompany his mother, but entered the United States on March 25, 2007, over a month after his 21st birthday. In May 2007, Regis filed an application for adjustment of status. USCIS denied the application, and began removal proceedings in November 2007.

A K-2 Visa Holder Must Be Under 21 Years Old at the Time He Actually Enters the United States to Be Eligible for Adjustment of Status as a “Minor Child.”

Throughout his appeal process, Regis relied on Carpio v. Holder, a 2010 Tenth Circuit case, in support of his argument that the proper date to determine his “minor child” eligibility was the date when he applied for the K-2 visa.

In Carpio, the K-2 petitioner had entered the United States when he was less than 21 years old, but the BIA denied adjustment of status because the petitioner had turned 21 before the agency adjudicated his application. The Tenth Circuit overturned the Board’s decision, concluding that eligibility should be determined as of the date a K-2 alien “seeks to enter” the United States. The Carpio court did not need to pinpoint when a K-2 applicant “seeks to enter,” but observed that the date may be plausibly read as either (a) the date that the United States citizen files a petition for K-1 and K–2 visas, or (b) the date that the K–1 and K–2 visa applications are filed with the consular officer in the country of origin.

The immigration judge in Regis’ case found Carpio inapplicable under the holding in Matter of Le, which the BIA itself had decided in 2011 while the Regis case was pending. In Matter of Le, a three-judge panel of the Board concluded that a K-2 visa holder’s age at the time he actually enters the United States determines whether he is a “minor child” under the INA.

The BIA’s Interpretation of When “Minor Child” Status Must Be Established Is Entitled To Deference Under The Chevron Doctrine

The question before the Fourth Circuit was whether the BIA’s interpretation of the INA in Matter of Le was precedential and dispositive. The court recognized that because the BIA is the agency that administers the INA, its interpretations of that Act may be entitled to deference under the Chevron doctrine if (1) the statute is silent or ambiguous with respect to the specific issue; and (2) the agency’s interpretation is not arbitrary, capricious, or  manifestly contrary to the statute. The first prong of the Chevron test was not at issue, so the court moved on to consider whether the BIA’s interpretation in Matter of Le met the second prong.

In Matter of Le, the BIA had reasoned that visa eligibility is best determined on the date of an alien’s entry into the United States, because eligibility is reassessed at the port of entry, and events may occur between visa issuance and admission that could extinguish the visa.

As to K-2 visa holders in particular, the Board further observed that the gap between issuance of the visa and admission “provides an additional opportunity for the parent’s visa validity to be extinguished, which would, in turn, render the child inadmissible even though a K-2 visa had been issued.” For example, if Regis’ mother had not married her U.S.-citizen fiancé within 90 days of arriving in the United States, Regis’ K-2 visa would have become invalid, and he would not have been able to follow his mother into the United States at a later date even though he had been issued a K-2 visa. The Fourth Circuit agreed with the BIA’s reasoning, and held that it was entitled to deference under Chevron.

Because Regis Was Over 21 When He Entered the United States, His Application for Adjustment of Status Was Properly Denied

The Fourth Circuit held that the BIA’s interpretation of the INA –- that a K-2 visa holder seeking adjustment of status must be under 21 at the time of admission – was a permissible construction and was owed deference under the Chevron doctrine. Accordingly, because Regis was over 21 when he entered the United States, the court held that his application for adjustment of status was properly denied, and in turn denied Regis’ petition for review.

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15Oct

Good Faith Marriage: A Prerequisite for Permanent Residency

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By: Carson Smith

Last Wednesday, the Fourth Circuit denied two separate petitions for review of removal orders, each of which addressed the question of whether an individual qualifies as a lawful permanent resident in the United States. In Chavez v. Holder, the Court upheld the Board of Immigration’s (BIA) decision to remove the plaintiff, a permanent resident, from the United States because of a larceny conviction. Full details of the Court’s decision can be found here. In Zoubairi v. Holder, the Court upheld the BIA’s ruling that Plaintiff, Khalil Zoubairi, did not qualify for lawful permanent residency (LPR) because the marriage from which LPR status could have arisen was not entered into in good faith. Consequentially, Zoubairi and his two sons were ordered to be removed from the United States.

Zoubairi entered the United States in 1995 on a tourist visa. While Zoubairi overstayed the visa, no legal action was taken, and, in 2001, he married Joyce Clark, a United States citizen. Under 8 U.S.C. § 1186, an alien is conditionally granted LPR status upon marriage to a citizen. However, LPR status only applies for the course of the marriage. In 2004, the couple jointly filed a petition to remove the conditional element. In response, the Department of Homeland Security (DHS) claimed that Zoubairi and Clark’s marriage was not entered into in good faith and that the conditional LPR status should be removed.

Zoubairi and Clark divorced in 2005. In 2008, Zoubairi withdrew the jointly-filed petition and, in its place, applied for a waiver of the joint-filing requirement pursuant to 8 U.S.C. § 1186(a)(C)(4). This section of the statute allows for the extension of full LPR status to aliens who (1) have alien children, (2) were previously married to a United States citizen, and (3) would undergo extreme hardship if removed from the country. The DHS denied the application and filed for removal proceedings in immigration court.

In 2012, the immigration court judge ordered Zoubairi and his two sons to be removed from the United States, finding that the marriage between Zoubairi and Clark was not entered into in good faith. The BIA dismissed Zoubairi’s appeal on the basis that the immigration judge had made no clear error in his ruling. A timely appeal to the Fourth Circuit followed.

In determining whether a marriage is entered into in good faith, the Court asked “whether [the couple] intended to establish a life together at the time they were married.” To answer this question, the Court looked to (1) the assets and liabilities of the parties; (2) the length of cohabitation during the marriage; and (3) birth certificates of any children born during the marriage. After laying out the standard and pertinent factors, the Fourth Circuit “conclude[d] that the evidence in the record clearly and overwhelmingly support[ed] [BIA’s] determination that Zoubairi did not intend to establish a marital life with Clark at the time he entered into the marriage.” It can be inferred that the Court found persuasive the numerous inconsistencies between the testimony of Zoubairi and Clark regarding their marriage. Accordingly, the Court upheld the denial of Zoubairi’s petition for removal.

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14Oct

Temporary Protective Status does not Establish ‘Admission’ for Immigration Purposes

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By Marcus Fields

Last Friday, in Chavez v. Holder, the Fourth Circuit denied a petition for review of a decision by the Board of Immigration Appeals (BIA) that found Ms. Chavez statutorily ineligible for cancellation of a removal order. The Court agreed with the BIA’s conclusion that Chavez could not establish the required seven years of residency to be eligible for cancellation because she had not been admitted until November, 2006.

Under 8 U.S.C. § 1229b(a) a permanent resident can have their removal cancelled if: (1) they have been “lawfully admitted for permanent residence” for at least five years, (2) they have resided in the United States for at least seven continuous years “after having been admitted in any status,” and (3) they have “not been convicted of any aggravated felony.” ‘Admitted’ is defined in 8 U.S.C. § 1101(a)(13)(A) as “the lawful entry of [an] alien into the United States after inspection and authorization by an immigration officer.”

The petitioner, Maria Luisa Chavez, first entered the United States in 1989 without being inspected by an immigration agent. In 1992, due to an ongoing conflict in her native El Salvador, Chavez was granted Temporary Protective Status (TPS) which allowed her to stay and work in the United States for the duration of the conflict. In 2006 Chavez received Legal Permanent Resident status and later that year visited family in El Salvador. She reentered the United States on November 19, 2006, and was inspected by an immigration officer at the border. On October 14, 2007, Chavez was arrested for petit larceny in Virginia and following her conviction on December 4, 2007, Immigration and Customs Enforcement initiated removal proceedings.

Chavez argued that she was ‘admitted’ for purposes of § 1229b(a) when she was granted TPS in 1992 and thus satisfied the continuous residency requirement necessary for cancellation of removal. The Fourth Circuit, reviewing the statutory question de novo, quickly dismissed this argument. It found instead, relying on Bracamontes v. Holder, that the definition found in § 1101(a)(13)(A) was unambiguous and did not include grants of TPS. In Bracamontes, the Fourth Circuit had concluded that the word ‘admitted’ “contemplate[s] a physical crossing of the border following the sanction and approval of United States authorities.” Applying that definition to the present case the Fourth Circuit found that Chavez was not ‘admitted’ until she was inspected by an immigration officer while reentering the United States in 2006.

Chavez alternatively argued that she did not have to establish ‘admission’ in order to satisfy the continuous residency requirement found in § 1229b(a)(2). She relied on language found in 8 U.S.C. § 1254a(e) allowing residence under TPS to count towards the continuous residency requirement if the resident could establish extreme hardship. Chavez argued this language would be superfluous if grants of TPS could never establish admission and admission was required to satisfy § 1229b(a)(2). The Fourth Circuit, however, concludes that § 1254a(e) and § 1229b(a)(2) can be read together in harmony without causing any language to be superfluous. The Court suggests, for example, that an alien could be admitted to the United States under a student visa and then subsequently be granted TPS after the expiration of that visa. If the alien could establish extreme hardship she could count any period of residence under TPS as part of the continuous residency requirement of § 1229b(a)(2). Under such a scenario § 1254a(e) would provide a non-superfluous exception to the general rule for calculating continuous residency, while the student visa would provide the necessary ‘admission’.

Because Chavez was not admitted into the United States until November, 2006, the Fourth Circuit found that at the time of her arrest she had not established the seven required years of continuous residence to be eligible for cancellation of removal and thus denied her petition for review.

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21Mar

Alien’s Petition for Review Denied: BIA’s Statutory Interpretation Reasonable

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By Jordan Crews

Earlier this week, in Urbina v. Holder, the Fourth Circuit denied an alien’s petition for review of an adverse immigration decision.

Urbina entered the United States on October 4, 2000, on a tourist visa.  He overstayed its expiration.  In December of 2009, the Department of Homeland Security (DHS) served Urbina with a notice to appear, charging him with having entered the United States without being admitted or paroled.  Apparently, the government based that charge on Urbina’s own representations in his applications for temporary protected status, in which he asserted that he had entered the country in 1998–an entry date that the government was unable to verify.  Urbina did not argue that he was in the country legally, but he did argue that he entered the country legally in 2000.  Thus, he contended that the charge against him was incorrect.  Urbina asked the government file an I-261 form at the next hearing; this form would replace the original charge on the notice (illegal entry) with the factually correct charge (illegal presence).  Urbina then filed a motion to terminate the original charge, which the Immigration Judge (IJ) denied without a written opinion.  The DHS did, however, amend the charge, alleging that Urbina was removable as an alien who overstayed his period of authorized presence.

The Immigration and Nationality Act permits the Attorney General to cancel removal of certain aliens, but the statute requires the alien to have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application.”  A valid notice to appear stops the accrual of continuous physical presence required for cancellation of removal.  Urbina contended that his original notice to appear–which stopped the accrual of the requisite ten years’ continuous physical presence–was invalid, and that only the newly substituted charge stopped the clock, and it did so after he had reached the ten-year mark, making him eligible for cancellation of removal.  The IJ did not agree, and the Board of Immigration Appeals (BIA) dismissed Urbina’s appeal.  Urbina then filed a petition for review in the Fourth Circuit.

Urbina contended that the original notice to appear was invalid and thus did not activate the stop-time rule.  Particularly, he contended that the initial notice’s incorrect charge rendered it invalid.  Before Urbina’s appeal, the BIA issued a precedence decision, in which the BIA determined that the relevant statutory language is ambiguous.  The statute states only that the stop-time rule is triggered “when the alien is served a notice to appear.”  The BIA read the statute as not requiring that the notice to appear to include the date and time of a hearing.  Although this decision did not directly address whether its analysis would apply to incorrect charges as well as missing dates and times, in a footnote in the decision, the BIA suggested that “there is no reason to conclude that Congress would have intended an alien to be able to accrue time between service of the notice to appear and service of an I-261 [providing the charges against an alien], which may occur much later and, in fact, at any time during the proceeding.”  The Fourth Circuit held that this interpretation was reasonable, and thus passed Chevron analysis.

Urbina also argued that the IJ violated his procedural due process right by pretermitting his application for cancellation of removal.  He argued that this was prejudicial because of certain “open factual issues.”  However, before going into any analysis of the claim, the Court held that it lacked jurisdiction to review the claim because Urbina failed to raise the question before the BIA, and “a court may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.”

Thus, Urbina’s petition was denied.

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