On October 23rd, 2014, we updated our
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called “Topical Parentheticals”. However, I find most of my most useful “wordsof wisdom” by directly accessing the Circuit Courts of Appeals and searchingcommercial websites such as: http://www.justia.com/ and following leads throughPACER or searching for articles via http://scholar.google.com/schhp?hl=en orordinary search engines. One such case I found recently is highlighted next.In Delgado v. Holder, No. 11-2648 (7th Cir. March 22, 2012), Circuit Judge JoelFlaum wrote the Opinion on behalf of himself and Judges Richard Posner andDaniel Manion in which they explain a bit about entitlements vs. discretionaryrelief as follows. “B. Due Process/Statutory Process Claims 1. Propriety of Due Process Challenge in Cancellation of Removal Proceedings Delgado claims that the Fifth Amendment provides him with certain due process rights in relation to his application for cancellation of removal. In support, he relies on Reno v. Flores, a Supreme Court case clearly stating “that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” 507 U.S. 292, 306 (1993). While this point is undoubtedly true, an alien eligible for discretionary relief does not have a substantive entitlement, and therefore, there is no liberty interest at stake in a proceeding where an alien seeks discretionary relief. Kahn v. Mukasey, 517 F.3d 513, 518 (7th Cir. 2008). Thus, aliens, do not have a right to due process in hearings for discretionary relief, such as those conducted in response to a § 1229b application for cancellation of removal. See id.; see also Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 757 (2005) (“Our cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.”); Portillo-Rendon v. Holder, 662 F.3d 815, 817 (7th Cir. 2011) (“To have a liberty or property interest in some benefit, a person must have a legitimate claim of entitlement, which means an entitlement established by rule; hope for a favorable exercise of administrative discretion does not qualify.”). Page 2 of 5
This is not the end of the matter. In situations where petitioners have made “flabby constitutional arguments” of the sort found here, we have construed such claims as arguments “that the IJ’s hearing violated [the] statutory and regulatory provisions” applicable to the hearing in question. See, e.g., Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007). At first glance, this may appear to put our jurisdiction in question considering our analysis above, which indicated that our jurisdiction was based on the fact that Delgado has pre- sented a constitutional question. But “[t]he procedural sufficiency of an immigration hearing is a legal question,” Boyanivskyy v. Gonzales, 450 F.3d 286, 291 (7th Cir. 2006), and since 8 U.S.C. § 1252(a)(2)(D) allows us to retain jurisdiction over any “constitutional claims or questions of law,” Delgado’s challenge to the sufficiency of his cancellation proceedings is safely within our purview. We review questions of law de novo. Id.” At pp. 10-12I find the discussion about the differences between entitlements and discretionaryrelief most informative and instructive. I have written separately about such issuespreviously1. Please explore these issues further if you wish and as you see fit.Another issue that I find needs more attention is the statutory authority shiftamong cabinet level Department Heads within the immigration realm that wascaused by the Congressional actions taken after the September 11 th 2001, terroristattacks. In short, “Why is is taking so long to correct the INA?” I read a greatmany decisions in immigration, citizenship, and nationality law cases. It frustratesme and in all honesty, scares me to a degree that even the judiciary does not1 Does Lozada Belong in the Immigration Benefits Context?http://www.ilw.com/articles/2011,1028-whalen.shtmIt Seems That Lozada Does Not Belong In The Immigration Benefits Contexthttp://www.ilw.com/articles/2012,0125-whalen.shtmEntitlement vs. Discretionary Relief or "Administrative Grace"http://www.ilw.com/articles/2012,0202-Whalen.shtm Page 3 of 5
acknowledge that many of the references to the Attorney General contained withinthe INA and/or 8 U.S.C. are no longer accurate.INA § 103 [8 U.S.C. § 1103] contains the most basic statutory delegations ofauthority under the “immigration laws”. That section was specifically changed viathe Homeland Security Act of 2002 (HSA 2002). The Attorney General as the headof the Department of Justice over both the Board of Immigration Appeals (BIA)and the Immigration and Naturalization Service (INS) was the primary authoritydelegated the responsibility to administer the vast majority of powers under theINA inside the United States from 1940 until the creation of the Department ofHomeland Security on March 1, 2003. The Secretary of State as per INA § 104 [8U.S.C. § 1104] was, and remains, the primary cabinet level official with delegatedauthority to administer the INA and other legal authorities outside the UnitedStates. A certain limited amount of authority in matters abroad is now also withinthe purview of the Secretary of Homeland Security which is slightly greater thanwhat the Attorney General previously had.The term “immigration laws” is itself defined in INA § 101(a)(17) “The term“immigration laws” includes this chapter and all laws, conventions, and treaties ofthe United States relating to the immigration, exclusion, deportation, expulsion, orremoval of aliens.” 8 U.S.C. § 1101(a)(17). Also, 8 CFR contains the regulationspromulgated by the former INS [now DHS] and the EOIR [still in DOJ and stillincluding the BIA].With all that in mind, I am at a loss to figure out how the confusion,misinformation, and/or mischaracterizations continue to occur. On March 22,2012, the 11th Circuit posted2 an unpublished per curiam decision in Alonso-Escobar v. USCIS et al, No. 11-10653 which includes the following: “The Attorney General’s decision to parole an alien into the United States is discretionary. .... 3” “3The Attorney General has delegated the discretion to grant parole to the Secretary of DHS or her designees, including USCIS employees. See 8 C.F.R. § 212.5(a).”2 See: http://www.ca11.uscourts.gov/unpub/ops/201110653.pdf Page 4 of 5
The Attorney General has delegated nothing of the sort not merely because of theshift caused by the HSA but also because the cited regulation was actuallycorrected to account for that statutory shift of cabinet level delegated authority. So,the 11th Circuit cannot even fall back on inaccurate outdated regulations in thisinstance. I then have to ask, was the Government brief or the Petitioner’s brief thesource of the inaccuracy or were they both wrong? That further begs the questionof why the 11th Circuit did not correct the parties on this fundamental point. 8 CFR § 212.5 Parole of aliens into the United States. (a) The authority of the Secretary to continue an alien in custody or grant parole under section 212(d)(5)(A) of the Act shall be exercised by the Assistant Commissioner, Office of Field Operations; Director, Detention and Removal; directors of field operations; port directors; special agents in charge; deputy special agents in charge; associate special agents in charge; assistant special agents in charge; resident agents in charge; field office directors; deputy field office directors; chief patrol agents; district directors for services; and those other officials as may be designated in writing, subject to the parole and detention authority of the Secretary or his designees. The Secretary or his designees may invoke, in the exercise of discretion, the authority under section 212(d)(5)(A) of the Act.I am not picking on the 11th Circuit alone on this issue. It is just that this case wasso recent and so easy to use as an example. Open your eyes and you will see plentyof examples across all Circuits, in the District Courts, and administrative agencies.UPDATE: On March 28, 2012, USCIS submitted a Notice to the Federal Registerfor publication the next day, in order to Designate Syria for Temporary ProtectedStatus. This Notice, like many before it, contains a footnote worth your attention.That footnote reads: As of March 1, 2003, in accordance with section 1517 of title XV of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, any reference to the Attorney General in a provision of the Act describing functions transferred from the Department of Justice to the DHS "shall be deemed to refer to the Secretary" of Homeland Security. See 6 U.S.C. 557 (codifying HSA, tit. XV, sec. 1517). Page 5 of 5