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Category: Due Process / Procedures

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The Supreme Court has agreed to address whether IIRAIRA's definition of when a lawful permanent resident is seeking "admission" should be applied to an LPR returning after a brief, innocent, and casual trip abroad who pled guilty to a crime of moral turpitude prior to IIRAIRA.  Vartelas is a Second Circuit case that conflicts with decisions from the Ninth and Fourth Circuits. See Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007); Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004).

View the docket at http://www.supremecourt.gov/qp/10-01211qp.pdf

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The Ninth Circuit held that the deadline for special motions to reopen proceedings to apply for 212(c) relief under St. Cyr was a constitutionally sound procedural rule.

Luna filed late and had argued that the deadline “irrationally disallows any alien not made aware of the time limitation from seeking a reopening.” The Ninth Circuit noted, though, that the rule was published in the Federal Register and that persons are presumed to know the law.

Further, the Ninth Circuit rejected Luna's argument for tolling of the deadline because the record did not show due diligence. It left open the possibility of tolling under other circumstances, though.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/09/19/08-71086.pdf.

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In this opinion, the Ninth Circuit provided more details about the bond hearing required under Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).  Casas-Castrillon provided for a bond hearing before an immigration judge for detained aliens while they petition for review of an administratively final order of removal.

Singh held DHS has the burden of proving by clear and convincing evidence that the alien is a flight risk or a danger to the community.  Casas-Castrillon had held DHS had the burden of justifying continued detention, but did not state the showing required.  Clear and convincing is a heightened standard appropriate to the interests at stake when a person is detained in civil proceedings for several years.

Singh also held that the agency must provide contemporaneous record of the bond proceedings, such as a audio recording.  Immigration judges typically do not record bond proceedings and instead just prepare a memorandum if the alien chooses to appeal.  The current practice severely impedes judicial review of errors or due process violations.  The court's decision recognizes this, while not imposing the additional burden of requiring a transcription of the proceedings.

Singh also noted that the mere existence of a criminal record is not enough to deny bond.  Instead, the alien must constitute a present danger to the community.  So, the adjudicator must consider the extensiveness of criminal activity, the recency of such activity, and the seriousness of the offenses.

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/31/1015715.pdf

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In Diouf II, the U.S. Court of Appeals for the Ninth Circuit held that prolonged detention under 8 U.S.C. 1231(a)(6) raises serious constitutional concerns, which require additional procedural safeguards beyond those provided under the regulations. Section 1231(a)(6) authorizes detention of an alien subject to a removal order if the government is not able to physically remove the alien within the initial 90 days after the order becomes final.

Under the regulations, ICE officers periodically determine whether aliens subject to final removal orders should remain in detention or be released on bond or other conditions. Detention under this regime may continue for years.  ICE follows these procedures because the Supreme Court held in Zadvydas v. Davis, 533 U.S. 678 (2001) that the government could not indefinitely detain aliens subject to final removal orders, at least where removal is not reasonably foreseeable.

Diouf II, however, holds that the procedures adopted by ICE are not sufficient where the detention significantly exceeds six months.  It holds that an alien subject to final removal order must receive a bond hearing before a neutral immigration judge where removal is not imminent and the alien has been detained for six months. Further, it holds that the alien should receive bond unless ICE establishes to the satisfaction of the immigration judge that the alien is a flight risk or poses a danger to the community.

These are the same safeguards that the Ninth Circuit found necessary for aliens subject to prolonged detention under 8 U.S.C. 1226(a) (detention during direct challenge to a removal order).  See Casas-Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir. 2008).

Read the opinion at http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/09-56774.pdf.

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For removability under 237(a)(2)(A)(i), a crime of moral turpitude must occur within 5 years after "the date of admission."  In Alyazji, the Board (re)defined "the date of admission," abrogating Matter of Shanu in part.
The date of admission for this purpose is now the date of the admission by virtue which the person was present in the United States at the time of committing the crime of moral turpitude.  A few different scenarios illustrate the application:
  • A person who entered the U.S. without inspection would never be subject to this ground of deportability because he has not been admitted.
  • For a person who last entered the U.S. without inspection and then adjusts to permanent resident status (perhaps under 245(i)), the date of admission is the date of adjustment.  This is the case even if the person had a prior inspection and admission (perhaps on a tourist visa as a child), but then departed.
  • For a person who last entered the U.S. on a visa and then overstays or violates the terms of the admission before adjusting status to lawful permanent residence, the date of arrival on the visa is still the date of admission.
  • After obtaining lawful permanent resident status, a noncitizen does not obtain a new date of admission unless one of the exceptions at INA 101(a)(13)(C) applies (seeking return to the U.S. after abandonment of residence, absence of more than 180 days, removal, illegal activity abroad, commission of a crime identified in INA 212(a)(2) absent a waiver, etc.).

Read the opinion at http://www.justice.gov/eoir/vll/intdec/vol25/3703.pdf

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