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Very recent cases on waiver availability


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Updated May 2, 2012

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Very recent cases on waiver availability

  1. 1. Very Recent Cases On Waiver Availability and Fleuti Doctrine Matter of E. W. Rodriguez, 25 I&N Dec. 784 (BIA 2012) Decided May 2, 2012 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals (1) In removal proceedings arising within the jurisdictions of the United States Courts of Appeals for the Fourth, Fifth, and Eleventh Circuits, an aggravated felony conviction disqualifies an alien from relief under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), only if the conviction occurred after the alien was admitted to the United States as a lawful permanent resident following inspection at a port of entry. Bracamontes v. Holder, Nos. 10-2033, 10-2280, 2012 WL 1037479 (4th Cir.Mar. 29, 2012);Martinez v.Mukasey, 519 F.3d 532 (5th Cir. 2008); and Lanier v. U.S. Attorney General, 631 F.3d 1363 (11th Cir. 2011), followed in jurisdiction only. (2) In removal proceedings arising outside the Fourth, Fifth, and Eleventh Circuits, section 212(h) relief is unavailable to any alien who has been convicted of an aggravated felony after acquiring lawful permanent resident status, without regard to the manner in which such status was acquired. Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), reaffirmed SUPREME COURT OF THE UNITED STATES VARTELAS v. HOLDER, ATTORNEY GENERAL 566 U. S. ____ (2012) CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 10–1211. Argued January 18, 2012—Decided March 28, 2012Held: The impact of Vartelas’ brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in force at the time of his conviction. Pp. 7–17.(a) Under the principle against retroactive legislation invoked by Congress hasunambiguously instructed retroactivity. See Landgraf v. USI Film Products, 511U. S. 244, 263. The presumption against retroactive legislation “embodies a legaldoctrine centuries older than our Republic.” Id., at 265. Numerous decisions of thisCourt have invoked Justice Story’s formulation for determining when a law’s
  2. 2. retrospective application would collide with the doctrine, namely, as relevant here,when such application would “attac[h] a new disability, in respect to transactionsor considerations already past,” Society for Propagation of Gospel v. Wheeler, 22F. Cas. 756, 767. See, e.g., INS v. St. Cyr, 533 U. S. 289, 321; Hughes Aircraft Co.v. United States ex rel. Schumer, 520 U. S. 939, 947; Landgraf, 511 U. S., at 283.Vartelas urges that applying IIRIRA to him would attach a “new disability,”effectively a ban on travel outside the United States, “in respect to” past events,specifically, his offense, guilty plea, conviction, and punishment, all occurringprior to IIRIRA’s passage. Congress did not expressly prescribe §1101(a)(13)’s temporal reach. The Court,therefore, proceeds to the dispositive question whether application of IIRIRA’stravel restraint to Vartelas “would have retroactive effect” Congress did notauthorize. See id., at 280. Vartelas presents a firm case for application of theantiretroactivity principle. Beyond genuine doubt § 1101(a)(13)(C)(v)’s restrain onlawful permanent residents like Vartelas ranks as a “new disability.” Once able tojourney abroad to, e.g., fulfill religious obligations or respond to familyemergencies, they now face potential banishment, a severe sanction. See, e.g.,Padilla v. Kentucky, 559 U. S. ___, ___. The Government suggests that Vartelascould have avoided any adverse consequences if he simply stayed at home in theUnited States. But losing the ability to travel abroad is itself a harsh penalty, madeall the more devastating if it means enduring separation from close familymembers. This Court has rejected arguments for retroactivity in similar cases, see ChewHeong v. United States, 112 U. S. 536, 559; St. Cyr, 533 U. S., at 321–323, and incases in which the loss at stake was less momentous, see Landgraf, 511 U. S., at280–286; Hughes Aircraft, 520 U. S., at 946–950. Pp. 7–11.(b) The Court finds disingenuous the Government’s argument that no retroactiveeffect is involved in this case because the relevant event is the alien’s post-IIRIRAreturn to the United States. Vartelas’ return occasioned his treatment as a newentrant, but the reason for his “new disability” was his pre-IIRIRA conviction.That past misconduct is the wrongful activity targeted by §1101(a)(13)(C)(v).Pp.11–13.(c) In determining that the change IIRIRA wrought had no retroactive effect, theSecond Circuit homed in on the words “committed an offense” in §1101(a) (13)(C)(v). It reasoned that reliance on the prior law is essential to application of theantiretroactivity principle, and that Vartelas did not commit his crime in reliance
  3. 3. on immigration laws. This reasoning is doubly flawed. A party is not required toshow reliance on the prior law in structuring his conduct. See, e.g., Landgraf, 511U. S., at 282, n. 35. In any event, Vartelas likely relied on the then-existingimmigration law, and this likelihood strengthens the case for reading a newlyenacted law prospectively. St. Cyr is illustrative. There, a lawful permanentresident pleaded guilty to a criminal charge that made him deportable. Under theimmigration law in effect when he was convicted, he would have been eligible toapply for a waiver of deportation. But his removal proceeding was commencedafter IIRIRA withdrew that dispensation. Disallowance of discretionary waiversattached a new disability to past conduct, 533 U. S., at 321. Aliens like St. Cyr“almost certainly relied upon th[e] likelihood [of receiving discretionary relief] indeciding [to plead guilty, thereby] forgo[ing] their right to a trial,” id., at 325.Because applying the IIRIRA withdrawal to St. Cyr would have an “obvious andsevere retroactive effect,” ibid., and Congress made no such intention plain, ibid.,n. 55, the prior law governed St. Cyr’s case. Vartelas’ case is at least as clear as St.Cyr’s for declining to apply a new law retroactively. St. Cyr could seek only theAttorney General’s discretionary dispensation, while Vartelas, under Fleuti, wasfree without seeking an official’s permission, to make short trips to see and assisthis parents in Greece. The Second Circuit compounded its initial misperception ofthe antiretroactivity principle by holding otherwise. Fleuti continues to governVartelas’ short-term travel. Pp. 14–17. 620 F. 3d 108, reversed and remanded. UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRACAMONTES v HOLDER On Petitions for Review of Orders of The Board of Immigration Appeals. Nos. 10-2033 & 10-2280 Argued: December 7, 2011 Decided: March 29, 2012 * * * * * Based on Petitioner’s conviction for an aggravated felony, the United States sought to remove him pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA). The immigration judge ("IJ") denied Petitioner statutory eligibility for a waiver of inadmissibility under 8 U.S.C. § 1182(h), or section 212(h) of the INA. Following Petitioner’s appeal, the Board of Immigration Appeals ("BIA") agreed with the IJ, concluding that Petitioner’s post-entry
  4. 4. adjustment of status to lawful permanent resident constituted an "admission" to the United States. Because we find that the plain language of section 212(h) does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility, we grant the petition, vacate the order of removal, and remand this case to the BIA for further proceedings. And some slightly older cases... United States Court of Appeals For the First Circuit PEREZ DE VEGA v. ALBERTO GONZALES, Attorney General ON PETITION FOR REVIEW OF A FINAL ORDER OF THE BOARD OF IMMIGRATION APPEALS No. 06-1813 September 17, 2007 * * * * * “The BIA first addressed the viability of the Fleuti doctrine, in light ofIIRIRAs modifications to the INA, in 1998, and concluded that IIRIRA hadabrogated Fleutis exemption of LPRs who departed the country forinnocent, casual, and brief trips from the legal requirements for "entry" (orits current equivalent, "admission"). In re Matter of Collado-Munoz, 21 I. &N. Dec. 1061, 1065 (1998) ("[W]e find that the Fleuti doctrine, with itsorigins in the no longer existent definition of entry in the Act, does notsurvive the enactment of the IIRIRA as a judicial doctrine."). The BIA heldthat the plain text of the statute meant that LPRs who leave the country andreturn, if they fall within one of the six enumerated categories, "shall beregarded as seeking an admission into the United States, without regard towhether the aliens departure from the United States might previously havebeen regarded as brief, casual, and innocent under the Fleuti doctrine." 1066. The BIA has since reaffirmed this interpretation. See, e.g., In reNhat Hoang Do, No. A73-256-398, 2005 WL 3709267 (BIA Dec. 30,2005).” * * * * *
  5. 5. “.................... De Vega entered the United States, apparently illegally, in1988 and adjusted her status to LPR in 1992. In 1998, while living inMassachusetts, de Vega was charged, in a single indictment, with larceny ofproperty valued at more than $250.00 and false representations to theDepartment of Public Welfare in order to secure support. ........” * * * * * “................... In December 2003, de Vega traveled to the DominicanRepublic to visit her family. Upon her return to Boston on January 3, 2004,the Department of Homeland Security determined that she was an "arrivingalien," and that she was inadmissible under 8 U.S.C. § 1101(a)(13)(C)because of her criminal conviction. De Vega appeared before an IJ, whereshe admitted that she was a citizen of the Dominican Republic, that she hadcommitted a crime involving moral turpitude, and that she was therebyremovable. She nonetheless moved to terminate the proceedings, claimingthat she could not be classified as seeking "admission" to the United Statesbecause she was an LPR and had left the country only for an "innocent,casual, and brief" trip, Fleuti, 374 U.S. at 460-61. She also filed a petitionfor cancellation of removal, arguing that the larceny and fraud charges hadnot resulted in a "conviction" for an aggravated felony, thereby renderingher eligible for that form of relief. The IJ denied de Vegas motion to terminate, finding that the Fleutidoctrine had been superseded by Congresss 1996 amendments to the INA.Therefore, the nature and duration of de Vegas visit to the DominicanRepublic were irrelevant, and her prior conviction required that she satisfythe conditions for admission. The IJ also denied her request for cancellationof removal because de Vegas 1998 continuation without a finding of guiltfor false representations amounted to an aggravated felony conviction, asdefined by 8 U.S.C. § 1101(a)(43)(M), resulting in ineligibility forcancellation, id. § 1229b(a). Based on these findings, the IJ ordered de Vegaremoved to the Dominican Republic.” * * * * * “We turn first to the current viability of the Fleuti doctrine, in light ofIIRIRAs revisions to the INA. Our court has not previously addressed thisquestion, although the other courts of appeals that have confronted it haveupheld the BIAs interpretation of IIRIRA. ......” * * * * * “We agree with the BIA and our sister circuits. The current version ofthe INA deems a lawful permanent resident, who leaves the United States
  6. 6. and then returns, to be "seeking admission" if that person fits within any of the six categories enumerated in 8 U.S.C. § 1101(a)(13)(C). The purpose, duration, and nature of the LPRs departure from the United States — the elements of the Fleuti doctrine — are irrelevant to the legal determination of whether she must undergo the admission process upon her return. Although we find the statute plain on its face, the same result would obtain if we thought the statute unclear. We would then defer to the agencys reasonable interpretation. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). .......” * * * * * “Second, de Vega claims that she was not convicted of an aggravated felony, and thus the IJ erred in finding her ineligible for cancellation of removal, a form of relief available only to LPRs who have not been convicted of such a crime. See 8 U.S.C. § 1229b(a)(3) (stating that the Attorney General may grant cancellation of removal only if the alien "has not been convicted of any aggravated felony"). She contends that there was no conviction at all, and, alternatively, that if there were a conviction, it was not for an aggravated felony. We think it clear that de Vega was convicted within the meaning of the INA. .....”. United States Court of Appeals For the Fifth Circuit MARTINEZ v. MUKASEY, Attorney General 519 F.3d 532 (2008) ON PETITION FOR REVIEW OF A FINAL ORDER OF THE BOARD OF IMMIGRATION APPEALS No. 06-60063. March 11, 2008.Accordingly, we hold: for aliens who adjust post-entry to LPR status, § 212(h)splain language demonstrates unambiguously Congress intent not to bar them fromseeking a waiver of inadmissibility. Because we must give effect to that intent, weproceed no further in the Chevron inquiry. Waggoner v. Gonzales,488 F.3d 632,636 (5th Cir.2007). (Furthermore, because § 212(h)s plain language isunambiguous, we need not reach another issue raised by Martinez: whethercustomary international law may be applied to resolve ambiguity in the
  7. 7. construction of an ambiguous statute. See Beharry v. Reno,183 F.Supp.2d 584(E.D.N.Y.2002), revd on other grounds,329 F.3d 51 (2d Cir.2003).) Therefore,under § 212(h), Martinez is eligible to seek a discretionary waiver ofinadmissibility.In light of Vartela (and Judulang), it seems that we yet have another fact-specificconundrum building on St. Cyr and even more “If....then” scenarios to strugglewith in various mixed issues of law based on the specific facts of the case. • First of all, are you dealing with an LPR or non-LPR? • Did they make an illegal or legal entry? • Were they actually “inspected and admitted” or “paroled”? • Which variety of “parole”? • Did the LPR make an “admission” under INA § 101(a)(13)? • Did the LPR have a “conviction” under INA § 101(a)(48)(A)? • If “convicted” was the crime a CIMT, aggravated felony, for a controlled substance, “particularly serious”, or meet an exception or exemption? • Is a waiver available? • Does the LPR have a “qualifying relative”? • Which level of hardship applies? • Is the LPR (or non-LPR) deserving of a favorable exercise of discretion or “administrative grace”? • Obviously, simply being able to seek the waiver does not mean it will necessarily be granted. Martinez supra. • etc.......