DOJ v DHS Issues in Need of Clarity 8 10-2011 jpw

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DOJ v DHS Issues in Need of Clarity 8 10-2011 jpw

  1. 1. DOJ: OSC; EOIR-IJs, BIA & OCAHO v. DHS: USCIS-AAO, ICE & CBPAgencies within two Departments, Justice and Homeland Security, are still working theirway through changes to arrive at the appropriate processes they need on order to get theirjobs done in the immigration context. It is not an all out conflict between them but a fewpoints needing clarity and direction have been identified within various componentagencies within and between these two Executive Departments. Lujan was a problem ofCBP and ICE not consulting USCIS on the citizenship issue before commencingExpedited (§ 235) rather than standard (§ 240) Removal Proceedings where a statusverification was allowed before an Immigration Judge without recourse. DHS agenciesneed to coordinate amongst themselves and coordinate at the Departmental level with theDOJ agencies it does and does not share certain authorities and responsibilities with.Those agencies include the Office of Immigration Litigation (OIL), the Office of SpecialCounsel (OSC) and the EOIR components.Matter of Lujan1, 25 I&N Dec. 53 (BIA 2009) Decided by the Board July 20, 2009: “The Board of Immigration Appeals lacks jurisdiction to review an appeal by the Department of Homeland Security of an Immigration Judge’s decision to vacate an expedited removal order after a claimed status review hearing pursuant to 8 C.F.R. § 1235.3(b)(5)(iv) (2009), at which the Immigration Judge determined the respondent to be a United States citizen.” ***** “…without an explicit grant of appellate jurisdiction in an otherwise carefully constructed regulatory and statutory process, we cannot assume appellate jurisdiction. Moreover, the DHS’s hypothetical regarding a criminal alien does not persuade us that we should assert jurisdiction in the absence of such an explicit grant. First, the criminal grounds of inadmissibility are not grounds that can be invoked in an expedited removal proceeding, which is limited to aliens who are inadmissible under sections 212(a)(6)(C) and (7) of the Act. While an alien may also be inadmissible on grounds related to criminal conduct, it is clear that the expedited removal process was not designed for the adjudication of contested issues of removability such as criminal charges. Second, the DHS has inherent flexibility, in the exercise of prosecutorial discretion, to pursue removal of an alien in either expedited removal proceedings or proceedings under section 240 of the Act. The DHS is aware of the regulatory scheme governing further administrative review of claims in expedited removal proceedings, and we are not persuaded by its assertion that this scheme should be ignored. Finally, it is less than likely that a person found by an Immigration Judge to be a citizen of the United States would “indisputably” have no authorization to remain in the United States, even though the DHS may disagree with the Immigration Judge’s decision in a close case.1 http://www.justice.gov/eoir/vll/intdec/vol25/3650.pdfDOJ v. DHS: Issues in Need of Clarity By Joseph P. Whalen (August 10, 2011) Page 1
  2. 2. Furthermore, where it is apparent that citizenship is to be a contested issue, the DHS has the prosecutorial discretion to stop the expedited removal process and initiate removal proceedings under section 240 of the Act. The limits on our appellate jurisdiction and on the ability of the DHS to commence section 240 removal proceedings are regulatory in nature. Just as we are bound by those regulations, so too may those regulations be amended if the Attorney General, acting in concert with the Secretary of Homeland Security, so determines. [Emphasis added.] We conclude by noting that an important purpose behind expedited removal proceedings is to ensure that appropriate cases are, in fact, expedited. This means deciding cases involving minimal or no controversy promptly and without multiple layers of administrative and judicial review. There is, for example, no further administrative review of an Immigration Judge’s determination that an arriving alien has or lacks a credible fear of persecution. 8 C.F.R. §§ 1208.30(g) (2)(iv)(A), (B) (2009). We would be acting ultra vires if we assumed jurisdiction in such a case, just as we would if we assumed jurisdiction here.” ###AAO cannot publish a precedent as quickly as the BIA because the BIA controls thepublication of I&N Precedents. The following excerpt is from a non-precedent AAODecision which is redacted and published on www.uscis.gov and more specifically foundat the 1st following link: Jul212010_01E2309.pdf in Decisions_Issued_in_2010 in E2 - Applications for Certification of CitizenshipThis relatively recent decision pertaining to a rather complex form N-600, Application forCertificate of Citizenship should be published as a Precedent. The preceding and thefollowing decisions all identify clearly that DHS and DOJ need to jointly figure out someprocedural issues that have become apparent since the creation of DHS and thereorganization and re-delegation of statutory immigration authorities. “DISCUSSION: The application for a certificate of citizenship was denied by the director of the San Francisco Field Office and the Administrative Appeals Office (AAO) dismissed the subsequent appeal. The AAO is now reopening the matter upon its own motion. The prior decision of the AAO will be withdrawn and the appeal will be sustained. The matter will be returned to the field office for issuance of a certificate of citizenship.” At p. 2 ***** “After the AAO’s prior decision was issued, it received additional evidence which warrants reopening and reconsideration of this case pursuant to the regulation at 8DOJ v. DHS: Issues in Need of Clarity By Joseph P. Whalen (August 10, 2011) Page 2
  3. 3. C.F.R. § 103.5(a)(5)(i). Specifically, the record now contains lengthy transcripts of the applicants hearings before the immigration judge including the testimony and cross examination of expert witnesses and the applicants parents. The Applicable Law Both the field office director and the immigration judge analyzed the applicants citizenship claim under section 320 of the Act, as amended by the Child Citizenship Act of 2000, Pub. L. No. 106-395 (CCA). The CCA does not apply to the applicant, however, because he was over 18 years old on its effective date, February 27, 2001. See CCA § 104; see also Matter of Rodriguez- Tejedor, 23 I&N Dec. 153 (BIA 2001).” At p. 2 ***** “The record clearly establishes that the applicants parents both naturalized in April of 1996 and that he was residing in the United States pursuant to a lawful admission for permanent residence at the time of their naturalization. The sole issue is whether or not the applicant was under the age of 18 at the time of his parents naturalization. USCIS is Not Bound by the Citizenship Determination of an Immigration Judge In support of the appeal, counsel submitted copies of the immigration judges orders terminating removal proceedings against the applicant and releasing him from custody based on the immigration judges determination that the applicant was under 18 at the time his parents naturalized and had therefore derived citizenship through them. As noted in our prior decision, we are not bound by a determination of the Executive Office for Immigration Review (EOIR) that an applicant is a U.S. citizen. An immigration judge may credit an individuals citizenship claim in the course of terminating removal proceedings for lack of jurisdiction because the government has not established the individuals alienage by clear and convincing evidence. See 8 C.F.R. §1240.8(a), (c) (prescribing that the government bears the burden of proof to establish alienage and removability or deportability by clear and convincing evidence). The immigration judges decision regarding citizenship, however, is not binding on USCIS. USCIS retains sole jurisdiction to issue a certificate of citizenship and the agencys decision is reviewable only by the federal courts, not EOIR. Sections 341(a) and 360 of the Act, 8 U.S.C. §§ 1452(a), 1503; 8 C.F.R. 341.l. See also Minasyan v. Gonzalez, 401 F.3d at 1074 n.7 (noting that the immigration court had no jurisdiction to review the agencys denial of Minasyans citizenship claim). In addition, while the government bears the burden of proof to establish an individuals alienage in removal proceedings before EOIR; in certificate of citizenship proceedings before USCIS, the applicantDOJ v. DHS: Issues in Need of Clarity By Joseph P. Whalen (August 10, 2011) Page 3
  4. 4. bears the burden of proof to establish the claimed citizenship by a preponderance of the evidence. Section 341(a) of the Act, 8 U.S.C. § 1452(a); 8 C.F.R. 341.2(c). Although the immigration judges finding regarding the applicants citizenship is not binding on these proceedings, the transcript of the pertinent hearings and evidence before the immigration judge, if also part of the record before USCIS, may provide probative evidence relevant to the N-600 application. On appeal, counsel did not, however, submit copies of the transcripts of the hearings conducted before the immigration judge. Those transcripts were entered into USCIS records after our prior decision was issued. The testimony and cross examination of the expert witnesses and the applicants parents, documented in over 100 pages of transcripts from the applicants hearings in Immigration Court, provide additional, probative evidence that he was under the age of 18 at the time of his parents naturalization. (At pp. 3-4.) [Emphasis added.] The Applicant’s Age and Eligibility for Citizenship Based on an examination of the immigration court transcripts and a through review of the record, a preponderance of the evidence shows that the applicant was under the age of 18 when his parents naturalized. Although the applicants administrative file states his date of birth as September 6, 1977, a close review of the record reveals no primary source for this date. The record lacks, for example, a birth certificate or documentation issued by the United Nations High Commissioner for Refugees (UNHCR) attesting to the 1977 birth date. The only primary evidence of the applicants birth and identity prior to his arrival in the United States is the copy of his Afghani taskera, which states his birth year as 1981. The record contains no evidence that this document is fraudulent or otherwise unreliable. In addition, the record now contains expert testimony regarding the issuance of the taskera in Afghanistan during the period of the applicants youth and its relative reliability as one of the few government-issued identification documents. See Declarations of Professor Thomas J. Barfield, dated May 7 and August 16, 2008; Transcript of Applicants Removal Hearing, U.S. Department of Justice, Executive Office for Immigration Review, San Francisco Immigration Court, 19-51 (June 25, 2008). In addition, the record now contains extensive testimony and cross-examination of the applicant and his parents explaining the circumstances of their flight from Afghanistan, their lack of documentation at the time and their inability to recall the exact date of the applicants birth. June 25, 2008 Hearing Transcript at 53-89; July 2, 2008 Hearing Transcript at 16-40. The applicants mother repeatedly explained that she did not believe the applicant was born in 1977, but chose that date when applying for refugee status in order to ensure that the applicant would be considered old enough to attend school. June 25, 2008 Hearing Transcript at 53-DOJ v. DHS: Issues in Need of Clarity By Joseph P. Whalen (August 10, 2011) Page 4
  5. 5. 89. The record also contains declarations and testimony from expert witnesses regarding the relative unimportance of birth dates in Afghani culture, the inability of Afghani refugees to recall or document their exact dates of birth and the difficulties inherent in converting dates from the Afghan calendar to the Gregorian calendar used in the United States. See Declarations of Professor Barfield, supra; Declarations of Rona Popal, dated May 2 and August 15, 2008; June 25 Hearing Transcript at 24-25, 34-36, 38-39; July 2, 2008 Hearing Transcript at 7-15.” At pp. 4-5 [Further expert medical testimony is discussed in some detail.]Matter of Henriquez Rivera2, 25 I&N Dec. 575 (BIA 2011) Decided August 8, 2011: “We adhere to the principles of statutory construction when interpreting regulations. Matter of F-P-R-, 24 I&N Dec. 681, 683 (BIA 2008). We look first to a regulation’s language and are required to give effect to the unambiguously expressed intent of the regulation. Id.; see also Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Executive intent is presumed to be expressed by the ordinary meaning of the words used. Matter of F-P-R-, 24 I&N Dec. at 683; see also INS v. Cardoza-Fonseca, 480 F.3d U.S. 421, 431 (1987). We should also construe a regulation to give effect to all of its provisions. See Matter of E-L-H-, 23 I&N Dec. 814, 823 (BIA 2005); Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999). The regulations that permit an applicant to renew his application for TPS in removal proceedings before an Immigration Judge do not specify whether doing so imposes on the applicant or the DHS the responsibility for the production of documents. 8 C.F.R. §§ 244.11, 1244.11. Likewise, similar regulations that permit the renewal of an application for other benefits in removal proceedings do not specify the respective responsibilities of the parties in this regard. See 8 C.F.R. §§ 209.1(e), 1209.1(e) (adjustment of status as a refugee); 209.2(f), 1209.2(f) (adjustment of status as an asylee); 245.2(a)(5)(ii), 1245.2(a)(5)(ii) (adjustment of status under section 245 of the Act, 8 U.S.C. § 1255 (2006)); 249.2(b), 1249.2(b) (2011) (application for permanent residence under section 249 of the Act, 8 U.S.C. § 1259 (2006)); see also 8 C.F.R. §§ 216.4(d)(2), 1216.4(d)(2) (joint petition to remove the conditions on residence for an alien spouse); 216.5(f), 1216.5(f) (application for waiver of the requirement to file a joint petition to remove the conditions on residence for an alien spouse); 216.6(d)(2), 1216.6(d)(2) (2011) (petition by an entrepreneur to remove the conditional basis for lawful permanent resident stats). At p. 577-5782 http://www.justice.gov/eoir/vll/intdec/vol25/3724.pdfDOJ v. DHS: Issues in Need of Clarity By Joseph P. Whalen (August 10, 2011) Page 5
  6. 6. Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007) Decided March 8, 2007 (1) Because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. § 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to an alien’s prima facie eligibility for naturalization. Matter of Cruz, 15 I&N Dec. 236 (BIA 1975), reaffirmed. (2) An adjudication by the Department of Homeland Security on the merits of an alien’s naturalization application while removal proceedings are pending is not an affirmative communication of the alien’s prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. § 1239.2(f). These are but a few examples of jurisdictional, substantive, and procedural issues in need of attention. There are more where these came from. Improvements can be made if one is willing to look for the existing problems and recognize them for what they are when they are found.DOJ v. DHS: Issues in Need of Clarity By Joseph P. Whalen (August 10, 2011) Page 6

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