Daniel Shanfield, Esq. Immigration Law & Defense Blog

The End of an Error? 11th Circuit Joins 3rd and 8th Circuits In Overturning BIA’s Silva-Trevino Decision

The Attorney General's 2008 decision in Matter of Silva-Trevino, 24 I.&N. Dec. 687 (A.G. 2008), which undid a century of legal doctrine reviewing crimes under the categorical approach, has made criminal immigration defense a circus of relitigating old convictions before of the immigration courts. I've previously offered my own insights on tactics to defend immigrants charged with convictions for crimes involving moral turpitude. Fortunately, the circuit courts of appeal are slowly but inexorably recognizing the folly of Silva-Trevino’s uncategorical categorical analysis, and on October 12, 2011, the 11^th Circuit in Sanchez-Fajardo joined the 3^rdCircuit and 8^thCircuit in rejecting the Board’s three-step framework.

In Sanchez-Fajardo, Petitioner, a native and citizen of Cuba and returning LPR, was found inadmissible by the Immigration Judge and BIA under INA § 212(a)(2)(A)(i)(I) for having been convicted of a CIMT, in connection with a false imprisonment conviction under Florida Statutes § 787.02. As the record of conviction was ambiguous as to the turpitudinous nature of the offense, the IJ went beyond the record of conviction to determine removability. Under the Florida statute, a Defendant could be found liable for false imprisonment even where confinement was temporary and non-violent, and resort to the record of conviction failed to clarify how confinement was accomplished. The Immigration Judge however looked outside of the record of conviction as directed by Silva-Trevino Step III, and stringing together facts found from Sanchez-Fajardo’s concurrent convictions for misdemeanor battery and assault, concluded that the false imprisonment conviction constituted a crime involving moral turpitude. The Board affirmed the IJ’s analysis. The 8^th Circuit however rejected this approach, holding that analysis of an offense must begin and end with the conviction before the criminal court, and not with a separate inquiry into the Defendant’s conduct. Concluding that the immigration laws were unambiguous on the mandatory nature of the categorical and modified categorical approaches, the Court in Sanchez-Fajardo forbids inquiry into conduct beyond that described categorically in the statutory offense, or by the record of conviction where the criminal statute is overbroad.

In the 9^th Circuit, the Court of Appeals has yet to explicitly rule on the validity of the Silva-Trevino Three-Step Analysis, only skirting the issue recently in an anyway-you-slice-it decision in Hernandez-Cruz v. Holder. Bolstered by these three circuit court decisions however we can only hope that the 9^th Circuit can soon find the right case and finally put an end to Silva-Trevino error.

Important 9th Circuit Immigration Decision on Failure to Register as Sex Offender

The 9th Circuit today issued an important decision on the immigration consequences for failure to register as a sex offender under former California PC 290(g)(1).  Previously the Board of Immigration Appeals (BIA) had held that a California failure to register conviction was categorically a crime involving moral turpitude (CMT) triggering possible removal under 8 USC 1227(a)(2)(A)(i).  In re Tobar-Lobo, 24 I. & N. Dec. 143 (BIA 2007).  Today's 9th Circuit decision reiterated that an offense must exhibit some form of evil intent to qualify as a CMT. As California courts have previously held that a conviction under former PC 290(g)(1) would lie even for mere forgetfulness, the 9th ruled that the offense could not be deemed a categorical CMT.  Pannu v. Holder, No. 07-71988 (9th Cir. May 11, 2011).

Pannu is good news for the defense, but hazards remain.  Although sex offender failure-to-register offenses no longer appear to be categorical CMTs in the 9th Circuit, it appears that ICE could still establish deportability by resort to evidence demonstrating intentionality under either the Shepard modified categorical approach or the Silva-Trevino 3rd Step.  So, keep those complaints, orders, abstracts, and transcripts ambiguous on the element of intent.

“To Save the Town, It Became Necessary to Destroy It”: Obama’s Politically Inept "Deportation First" Immigration Policy and Epic Failure on DREAM Act

 

With the defeat of the DREAM Act, the Obama Administration’s "Deportation First" immigration policy – to expel record numbers of undocumented immigrants to obtain buy-in from the GOP on comprehensive immigration reform – has proven not just an epic political failure, but one with grotesque human costs.

Doubts over a strategy to deport hundreds of thousands of immigrants as a quid pro quo for Republican support on CIR were present from the start.  As detailed yesterday by the Washington Post,

Whenever Rep. Luis V. Gutierrez (D-Ill.) and other immigrant-rights advocates asked President Obama how a Democratic administration could preside over the greatest number of deportations in any two-year period in the nation's history, Obama's answer was always the same.

 Deporting almost 800,000 illegal immigrants might antagonize some Democrats and Latino voters, Obama's skeptical supporters said the president told them, but stepped-up enforcement was the only way to buy credibility with Republicans and generate bipartisan support for an overhaul of the nation's immigration laws.

 On Saturday, that strategy was in ruins after Senate Democrats could muster only 55 votes in support of the Development, Relief and Education for Alien Minors (DREAM) Act, a measure that would have created a pathway to citizenship for undocumented immigrants who were brought to the United States as children.

 The New York Times is charitable in its analysis:

Part of the administration’s strategy has been to ramp up border and workplace enforcement to attract Republican votes for the overhaul. The vote on Saturday made it clear that strategy has not succeeded so far.

As reported by the Los Angeles Times, Democrats again will take consolation in the belief that the GOP’s opposition has further alienated an expanding Latino voting bloc -- a bloc that has coalesced around the Democrats largely because of the party's stated promises to get CIR done.  But with the Democrats string of failures to deliver even on plainly meritorious legislation with bipartisan support like the DREAM Act, their consolation is misplaced.  Latino voters, although holding the GOP in negative regard, will likely view the Democrats as incurably inept at best and insincere at worst and therefore unworthy of enthusiastic support -- support the Dems desperately need to counter Tea Party exuberance in 2012. Latino voters turned out in strength for the Democrats in the midterm elections, arguably saving their majority in the Senate. What will rally Latino voters now that the Democrats have serially failed to enact CIR or DREAM?  This likely enthusiasm gap will haunt any Democratic presidential hopeful offering warmed-over promises on immigration reform.

Beyond the policy debates and legislative post-mortems of the DREAM Act defeat, one key issue has been lost regarding Obama and the Democrats' high-profile failure here. With nothing to show for his high-pain, no reward strategy, President Obama has much to account for, having ordered a catastrophic mass deportation policy large enough to clear out the City of San Jose, California.  The incalculable human toll on America’s families, employers, and communities by deporting 800,000 immigrants is breathtaking.  Families are broken, employers are scrambling to find critical workers, and entire neighborhoods and towns are desolate. 

The Administration’s iron-fisted strategy to find support for humanitarian immigration reform brings to mind the old Vietnam war dictum, “To save the town, it became necessary to destroy it.”  To obtain a just solution for America's undocumented immigrant community, the Obama Administration has found it necessary to assail, deplete, and strike fear into its heart.   And the failure does not stop there, as ICE Chief John Morton has officially signaled that deportations will continue apace.  The President's moral arrogance, that he could build a just solution for the 12 million undocumented and their mixed-status families, by deporting hundreds of thousands of non-citizens in the foolish hope of placating a malevolent and uncompromising opposition, has been a classic Obama "teachable moment".  Because there can be no doubt now as to the total disregard of America's immigrants in the Obama White House.

The Senate Immigration Framework and SB 1070: Obama’s Unflattering Moment of Truth

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In a move reminiscent of China’s Hundred Flowers Campaign, Pres. Obama invited Senate leaders to put forward a proposed framework for comprehensive immigration reform (CIR), and then promptly discounted any hope of passing it, stating he doubted Congress’s appetite to pass such legislation.  Coupled with his lukewarm response to the Arizona’s legislative reign of terror against immigrants and people of color, it’s difficult to know where Obama stands on immigration.

Exhibit A. Pres. Obama urged Congress in mid-March to move forward with an immigration reform plan, pledging “to do everything in my power to forge a bipartisan consensus on this important issue so we can continue to move forward on comprehensive immigration reform."  Senators Schumer and Graham took up the invite, printing an op-ed piece in the Washington Post and laying out a four-part plan balancing enforcement with a humane solution for America’s undocumented:

1. biometric Social Security cards to ensure that undocumented workers cannot get jobs
2. strengthening border security and interior enforcement
3. creating a process for admitting temporary workers
4. implementing a “tough but fair path” to legalization for those already here

The devil of course is in the details.  Civil libertarians and immigrant's rights advocates oppose national ID cards like the biometric social security card, particularly when possessing such a card is a condition for political participation and employment.  In other countries, government’s have used their power to issue, withhold and regulate identification cards to politically and economically disenfranchise opponents and intimidate ethnic minorities.  When the right to work and vote is predicated on presenting a national identification card, the national government wields enormous power.  When taken together with increased interior enforcement, fear of heavy-handed treatment of immigrants and people of color by law enforcement is a real threat.  Nor is opposition strictly reposed on the pro-immigrant side. America’s latter-day Tea Party Know-Nothings have no interest in opening up the borders for foreign guest workers, or giving what they would consider “amnesty” to the undocumented.  Still, the framework provides something everyone wants and wants badly, and what could be a real opportunity for compromise among the various factions on immigration.

Along these lines, Democratic Party Senate leaders, Harry Reid, Charles Schumer, and Bob Menendez last week issued a Senate legislative reform framework, which Greg Siskind has neatly summarized here.  Of note in the proposal, beyond the Schumer-Graham four-point plan, are incorporation into CIR of the Dream Act and AgJobs, paths to permanent residency for graduates of U.S. universities with STEM (science, technology, engineering, and math), and the recapture of unused visa numbers, along with a clearing of the backlog of family-based preference visas.

Particularly notable was the absence of Sen. Lindsey Graham for the framework proposal.  As reported in the press, Graham’s pull-out was attributed to Harry Reid’s decision to push legislation in the Senate on immigration reform and energy simultaneously, which Graham claims dooms both efforts.  With increasingly rabid right-wing voters back home in South Carolina losing their grip in the face of any effort to provide any quarter to Obama or Congressional Democrats on any legislative issue, the convention wisdom is that Graham had to pull back. 

Could be.  Or maybe Lindsey Graham was not taken in by Obama’s milquetoast urgings on immigration reform.  Perhaps Graham has taken the measure of the President on the issue, and concluding that the only hope of passage for immigration reform, like healthcare reform, would entail Obama’s committed leadership, backed away.  Having observed the President over the past year, Graham might have observed that Obama might grandstand on the issue but not actually risk political capital to get an immigration bill out of the Senate.  Without committed Presidential leadership to round up Senate Democrats, or political cover from Obama, it’s just as likely that Graham, a politician with national aspirations and some tendencies towards bipartisanship, saw no gain in crossing over on a bill that not even his partisan adversaries fully supported.

If so, Graham’s withdrawal was prescient.  In a tour de force of political dithering, Pres. Obama last week aboard Air Force declared that “there may not be an appetite” for immigration reform this year, and that “I need some help on the Republican side”.  Recognizing his blunder, Obama’s press office went into damage control and back-tracked, calling the Senate Framework “an important first step”.

On the issue of who's hungry for immigration reform... it's the President who appears to lack the appetite, the appetite he displayed on health care reform, an appetite for victory that got the bill passed.  The pro-reform Senate caucus needs help as well.  They need a President who shows an unwavering commitment on the issue, not one who will cut off his fellow Democrats at the knees the moment they introduce a legislative framework to move forward and get a bill passed.  

I’m really starting to wonder if Obama gets it when it comes to immigrants, their families and immigration issues as a whole.  He continues to treat immigration and immigrants as a “them”, not an “us” issue.  He treats the our immigration crisis as we weren’t dealing with America’s fastest growing demographic, as if we weren’t con fronted with the crisis of our Nation’s mixed status families, as if his Administration’s policy on immigration raids and meek acceptance of police harassment of immigrants under the pretext of 287(g) were problems happening in some other country, not our own. 

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Exhibit B. This country could have used a presidential moment of moral clarity in connection with Arizona’s recently passed anti-immigrant hate law SB 1070.  Instead, we received a flaccid statement from Obama that the law is “misguided”.  What the country needed was an immediate declaration that the Justice Department would do everything in its power to ensure that that such an abominable law, a law harkening back to the days of Jim Crow and South Africa’s apartheid pass laws, would never be enforced.  No such reassurance was forthcoming however, only that Attorney General Eric Holder was considering options. 

The absence of presidential leadership on this issue is chilling.  It has precipitated despair not just for immigrants and their families, but also for his ideological supporters.  Many of us supported Pres. Obama because we believed that through his leadership and biography, our country would move more closely, though imperfectly, to a post-racial condition in the United States.  I fear that Obama’s failure to set a moral marker here betrays the limitations of Obama’s vision of immigrants in America.  For Obama, SB 1070 is about an immigrant “them”, not about an American “us”.  And with this lack of vision, the President has displayed a concomitant absence of leadership, again reminding us how far this country has yet to travel to achieve true justice for all.

Your Papers Please (cont.): DUI Checkpoints, Auto Impounds, and the Undocumented Immigrant Driver

 

California law enforcement officials have declared 2010 the "Year of the DUI Checkpoint".  Last week, a report by Pulitzer Prize winning Journalist Ryan Gabrielson of the UC Berkeley Investigative Reporting Program  revealed how California law enforcement is disproportionately targeting Latino immigrant neighborhoods for these operations.  Rather than netting DUI arrests and keeping drunk drivers off the road, however, these checkpoints have yielded a bonanza of revenue for localities through 30-day impound fees and sales of vehicles seized and sold at auction from unlicensed drivers, many of whom are undocumented immigrants. 

According to the Report, checkpoint impounds in 2009 generated an estimated $40 million in towing fees and police fines statewide. Cities are splitting the revenue with towing companies, leading to windfall profits for towers. While providing an economic benefit for cash-strapped California cities, it comes at a cost to U.S. taxpayers generally. In the last fiscal year, $30 million of federal funds earmarked for DUI enforcement was authorized to pay overtime for checkpoint operations.  Some check points are "padded" with cops, likely because their overtime for working such DUI operations is paid for by the state.  Essentially, U.S. taxpayers are subsidizing overtime for police to conduct low-priority enforcement and maximize profits for towing companies.

According to the UC Berkeley Report, law enforcement officials disclaim any racial profiling where the police establish checkpoints. However, as reported in the Sacramento Bee, in municipalities where Latinos are the largest slice of the population, police impounded an average of 34 cars at each checkpoint – three times the rate in cities with the smallest Latino populations. In the City of Montebello alone, the Washington Times reports the rate of impounds to DUI arrests was an astonishing 62 to 1. 

 “Mr Dillinger, why do you rob banks..?” “Because”, Dillinger replied “that is where the money is.”

The numbers speak for themselves.  Latino communities are perceived by cash-strapped municipalities as a target rich environment for impounds, even if not for DUI arrests, making checkpoints in these neighborhoods a sound financial decision.  The Constitutional implications of the practices however are another matter, and a lawsuit challenging the constitutionality of California’s 30-day impound law is awaiting oral arguments before the Ninth Circuit Court of Appeals later this year.  As discussed in the Report:

“It is assumed under the law that the taking of personal property without a warrant is unconstitutional,” said Martin J. Mayer, a founding partner in the Fullerton law firm Jones & Mayer, which represents numerous police agencies . . .

The law protects everyone within the United States, regardless of whether they are in the country illegally . . . In 2005, the Ninth U.S. Circuit Court of Appeals ruled in an Oregon case that law enforcement can’t impound a vehicle if the only offense is unlicensed driving.

One exception is called the “community caretaker” doctrine, which permits police to impound a car if it poses a threat to public safety, is parked illegally or would be vandalized imminently if left in place.

The ruling dramatically altered the law regarding vehicle impounds.  In response, the Legislative Counsel of California in 2007 called into question the legality of the state’s impound procedures.

“If a peace officer lawfully stops a motor vehicle on the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not sufficient justification for the peace officer to cause the impoundment of the motor vehicle,” Legislative Counsel Diane F. Boyer-Vine, who advises state lawmakers, wrote in a response to Sen. Gilbert A. Cedillo, D-Los Angeles. The legislative counsel has no authority over police departments.

Even right-wing news outlets like the Washington Times have decried these operations as unconstitutional:

This clumsy, police-state tactic was once reserved for places such as the Soviet Union. We join with Supreme Court Justice Clarence Thomas in lamenting the judicial contortions used to whitewash this unconstitutional practice. "Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered 'reasonable' a program of indiscriminate stops of individuals not suspected of wrongdoing," Justice Thomas wrote in a 2000 dissent on a checkpoint case.

The risk of deportation for undocumented immigrants caught up in a checkpoint is unclear.  Many police departments conducting checkpoints also maintain INA section 287(g) cooperation agreements with ICE.  If a police  officer were to inquire of an undocumented immigrant the reason for not possessing a driver's license, and the immigrant admitted to being in the U.S. unlawfully, the officer would then be authorized to take the immigrant into custody for processing by ICE, and for deportation from the United States.  If taken into custody, immigrants should exercise their legal rights, refuse to provide a statement or sign any documents, and demand to speak with an immigration defense lawyer and see an immigration judge.

Welcome to Checkpoint Nation...

 

Santa Clara County Explores Providing Legal Defense Counsel in Criminal Misdemeanor Cases; Possibly Huge Impact in Deportation Prosecutions

This morning's San Jose Mercury News is reporting plans by the Santa Clara County Public Defender's Office to remedy a gaping hole in the county's criminal justice system, by providing criminal defense counsel at criminal arraignment hearings in misdemeanor cases.  As reported by the Mercury News' Sean Webby,

Unlike most counties in California, Santa Clara County has no lawyers staffing misdemeanor arraignments, a defendant's first court appearance. Many defendants resolve their own cases right then by accepting a judge's on-the-spot-deal and pleading guilty. Critics say the system encourages people to plead guilty to avoid spending more time in custody waiting for their cases to be reviewed by the Public Defender's Office.

Dave Cortese, one of our elected County Supervisors, is "embarrassed" by this due process black hole, and is working with Supervisor Ken Yeager in support of the PD's efforts to get lawyers helping indigent misdemeanor defendants.

If put in effect, such a proposal would have a huge impact in assisting immigrant defendants, who, desperate to get out of jail and back to their jobs and families, unwittingly plead guilty to crimes that may lead to their deportation, when what they should be doing is fighting aggressively to get their charges reduced or dropped altogether.  In our practice, we see numerous, non-English speaking immigrant clients who took guilty pleas to misdemeanor theft, controlled substance, and domestic violence offenses.  The Santa Clara County District Attorney's Office charges these cases aggressively, often with multiple overlapping charges (for instance, methamphetamine possession, under the influence and drug paraphernalia possession; burglary and theft; protection order violations and spousal battery) on the assumption that defendants will obtain defense counsel who will then negotiate a plea deal down to a more favorable disposition.

This adversarial system might make sense if the parties were evenly matched, with zealous attorneys fighting it out on both sides.  But where an unrepresented, incarcerated, non-English speaking defendant is doing battle with the comparatively limitless resources of the District Attorney's office, what we have is not a fight, but a bloodbath.

Taking a misdemeanor plea just to get out of jail typically creates catastrophic immigration consequences.  Many immigrants are unaware that even a misdemeanor conviction can lead to deportation.  For misdemeanor convictions for crimes involving moral turpitude (like theft) transpiring within five years of a permanent resident's admission to the United States, the possible sentence must be one year or more to raise the possibility of deportation.  These limitations however are inapplicable to immigrant defendants convicted of drug or domestic violence offenses, and defendants could face deportation regardless of the length of possible sentence or period of legal residence in the United States.  These limitation do not apply moreover to immigrant defendants who were ever previously convicted of any other crime involving moral turpitude, no matter how long the immigrant has lived in the United States.  

With public defenders in place to assist at the misdemeanor arraignment hearing, immigrant defendants could get a much fairer shake, both in their criminal cases and in avoiding harsh immigration consequences typically far out of proportion to the underlying misdemeanor offense. Under the California Supreme Court's Resendiz decision, defense attorneys are required to provide advice on the specific immigration consequences of accepting a guilty plea. With the aid of a public defender, immigrant defendants could make more knowing and intelligent decisions both in their criminal defense and avoiding deportation down the line. 

For anyone who cares about ensuring that the power of Government to jail and convict is properly limited, so that innocent defendants are not wrongly convicted and guilty persons are only punished in proper measure, this is an effort worth supporting.

As an important aside, positive developments like this are possible thanks to vibrant local reporting.  These efforts are a result of the Merc's editorial advocacy and previous work illustrating deficient due process protections in our local criminal justice system. Please support your local paper and subscribe.  The news isn't free.

CIR ASAP Immigration Reform Bill Takes Important First Step in the House

 

In a sudden and surprising move, Rep. Luis V. Gutierrez, D-Ill., has intrdouced sweeping legislation in the House of Representatives to reform America's broken immigration system and find a solution to legalize an estimated 12 million undocumented immigrants.  The Immigration Policy Center has already put up a terrific summary of the Bill, entitled the Comprehensive Immigration Reform for America's Security and Prosperity Act (CIR ASAP) of 2009. 

At its core, CIR ASAP would provide legal status to undocumented immigrants by requiring registration with the federal government, payment of a $500 fine for each adult, learning English, background checks, as well as other criteria related to crimes and immigration violations. These immigrants would then qualify for a six-year visa leading to permanent residency.  CIR ASAP also incorporates the DREAM Act, providing a path to citizenship for children and young adults brought to the U.S. illegally by their parents and who have completed college and have a clean criminal record.

Introduction of CIR ASAP is surprising in two key respects. First, it places another huge piece of legislation on the Democrats' congressional agenda, with health care reform and stimulus issues still unsettled.  Secondly, House members and staffers I have spoken to have indicated that the pro-reform House caucus was taking a "Senate first" approach, and would not introduce a bill and make a stand on immigration reform without first receiving assurances that immigration reform would pass in the Senate.  Recall that the last CIR proposal, the McCain-Kennedy Bill, failed ingnominiously in the Senate in 1997, and House members don't want to catch heat for a bill that won't pass in the other chamber.

Introduction of CIR ASAP in the House gives off some really interesting tells. First, it appears Rep. Guttierez and the House leadership believe a) comprehensive immigration reform will pass the Senate, b) the health care debate is essentially over and a health care bill will pass, and c) it is now-or-never time for pro-immigration reform Democrats, who, if history is any guide, will as the incumbent party in power lose seats in the House and Senate in November 2010.  Facing these potential losses, CIR might never pass if it doesn't pass now.

To provide some local San Jose flavor, give a read to Ken McLaughlin's article today in the San Jose Mercury News.  As reported in the paper, House Speaker Nancy Pelosi, D-CA, has not entirely deviated from the Senate first strategy, and will fully take up CIR once it is introduced in the Senate after the holidays by Sen. Charles Schumer, D-NY.  A fascinating piece on Speaker Pelosi's "Senate First" legislative strategy, and her desire to protect vulnerable Democratic House members, is featured at thehill.com.

The New York Times does a good round-up on opposition to the Guttierez bill.  Opponents, mostly from the Republican aisle, refer to the bill as "Dead on Arrival", amounting to an amnesty for law breakers.  For other Republican opponents, the bill is not "comprehensive" enough, in that it fails to provide enough avenues for employers to hire low cost and expoitable, oops, I mean temporary guest workers, an issue I dealt with in depth in a prior entry on this blog. 

Introduction of a CIR bill in the House is a terrific sign for the pro-reform camp.  If you care about the success of this Bill, now is the time to learn about Comprehensive Immigration Reform, contact your member of Congress.

On Gender Asylum, HIV Travel Ban, Obama Adminstration Moves (Slowly) to Improve Ties with Immigrants, Women, LGBT Supporters

The Obama Administration did the right thing on immigration last week, addressing demands from two key political constituencies feeling somewhat jilted since Inauguration Day, liberal women's groups and LGBT voters.  On the women's front, the Justice Department is set to issue a long-awaited decision on gender based asylum claims.  Separately, in a major shift aimed at ending stigma against people with HIV/AIDS -- a stigma rooted in Jesse Helms' era anti-gay bias -- the Obama Administration, is declassifying HIV infection as a health related ground of inadmissibility for visitors to the United States.

On the asylum side, the Justice Department's decision relates to a case pending before DHS and the Immigration Court's since 1995, Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008).   Ms. Alvarado is a native of Guatemala who suffered years of brutal abuse at the hands of her husband, and ex-Guatemalan army soldier.  Her story was the subject of a PBS Documentary, Destination America.

As explained by Prof. Karen Musalo, Ms. Alvarado's attorney and Director of the Center for Gender and Refugee Status at UC Hastings Law:

Despite her repeated attempts to obtain protection from the [Guatemalan authorities], the police and the courts refused to intervene. When she ran away, her husband found her and beat her unconscious. Desperate to save her life, Ms. Alvarado finally fled to the United States, leaving her two children with relatives.

In 1996, a San Francisco immigration judge granted Rodi asylum. But the immigration service chose to appeal . . . In June 1999, the BIA reversed the decision of the immigration judge, and ordered that Ms. Alvarado be deported to Guatemala.  The decision in Matter of R- A- led to denials of asylum protection to women fleeing a broad range of serious human rights violations, including trafficking for prostitution, gang rape and honor killing, as well as domestic violence.

In January 2001, then-Attorney General Janet Reno responded to a nationwide campaign of outrage and concern by overturning the BIA's decision. She ordered the BIA to issue a new decision in Rodi's case after the issuance of proposed Department of Justice regulations on the subject of gender asylum. Those regulations have never been finalized by the Bush Administration.  In January 2005, Attorney General Ashcroft remanded Matter of RA back to the BIA.  

In September 2008, Attorney General Mukasey certified Matter of R-A- to himself and issued a decision ordering the BIA to reconsider it, removing the requirement that the BIA await the issuance of proposed regulations. This decision meant that the BIA could immediately begin to consider Matter of R-A-, as well as many other cases that had been placed on hold pending a decision in Matter of R-A-. However, because the case was litigated prior to the BIA decisions requiring an asylum applicant to establish the social visibility and particularity of the social group to which she belongs (see In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), In re A-M-E- & J-G-U, 24 I. & N. Dec. 69 (BIA 2007), In re S-E-G-, 24 I. & N. Dec. 579 (BIA 2008)).

In July 2009, the Department of Homeland Security, which had originally opposed asylum in R-A-, submitted argument in a separate case, In re L-R-, (BIA 2009).  That case involved a Mexican woman fleeing domestic violence. The DHS in its L-R- brief demonstrated a marked evolution in its gender persecution analysis:

DHS accepts that in some cases, a victim of domestic violence may be a member of a cognizable particular social group and may be able to show that her abuse was or would be persecution on account of such membership. This does not mean, however, that every victim of domestic violence would be eligible for asylum . . . The evidence in this case at least raises the possibility that [the persecutor] believes that women should occupy a subordinate position within a domestic relationship and that, in his eyes, the female respondent remains in this subordinate position in the relationship even though she has physically separated from [the persecutor]. The evidence further suggests that [the persecutor] believes that abuse of women within such a relationship can therefore be tolerated, and that social expectations in Mexico reinforce this view . . .

Accordingly, a valid social group could comprehend "Mexican women in domestic relationships who are unable to leave" or  "Mexican women who are viewed as property by virtue of their positions within a domestic relationship."

Now, applying this same analysis to R-A-, the San Francisco Immigration & Customs Enforcement Office of Chief Counsel, in a one-page pleading to the Immigration Court, has assented to a grant of asylum for Ms. Alvarado. The Court's favorable decision (and final resolution) is expected shortly.

Building on the positive news in R-A-, the Obama Administration last week issued new rules declassifying HIV/AIDS as a bar under INA s. 212(a)(1)(A) to visitors and immigrants coming to the United States.  Clearly a vestige of anti-gay prejudice, the ban, which has been in place since 1993, has prevented any international conference related to HIV/AIDS research from taking place on U.S. soil.

Repeal of the HIV exclusion has been a long time coming, particularly in light of the United States' fringe status on this issue, one of only among twelve countries in the world imposing such a ban. Its repeal has been hailed by the international community, and now China and the Ukraine are considering following suit.

What do these two developments portend?  Not exactly "Change", but maybe an evolution in attitude within the White House, DHS and DOJ, recognizing America's isolation on these issues within the international community.  We can only hope these values trickle down to the agency level.  Now, the Obama Administration could have made a bigger splash, implementing sweeping regulations on gender-based persecution, or working to end the ban on gay partners as spouses under the Defense of Marriage Act.  That he opted to approach these problems piecemeal is further indication of Obama's governing style, to pursue change slowly, in hopes that policy can shape values, and nudge the Nation along accordingly.

As for the political calculus, these policy choices were initiated under the Bush Administration, required no Congressional approval, cost the Administration nothing politically, and dovetail with efforts to mend Obama's sometimes challenged relationship with progressive women's groups, immigrants and LGBT voters.  It sounds like a no-brainer.

Returning Legal Permanent Residents with Prior Crimes: Avoiding Traps and Pitfalls

A recent client of ours, a resident of California's Central Valley and 19 year U.S. legal permanent resident (LPR), was returning home via Phoenix International Airport after attending his father's funeral in Mexico.  At the Phoenix airport, Customs Border Protection discovered that he had a nine-year old conviction for simple possession of cocaine.  CBP took him into custody, away from his wife, child, construction job, and new home, and remanded him to the Florence Immigration Detention Center outside of Phoenix.  He was detained without bond, and as an arriving alien beyond the custody authority of the Immigration Judge, he could not be released, even though he clearly qualified for relief from deportation, had an otherwise spotless criminal record, and had a family at home who desperately needed him.

Our office succeeded in blocking his deportation and getting back his green card.  However, the months he spent incarcerated had plainly left its scars on my client, his wife, and his young child.

Our client's situation is not uncommon.  DHS is subjecting legal permanent residents to an ever-tightening noose, with the goal of identifying, detaining, and removing those non-citizens convicted of, or who are suspected to have committed, crimes in the U.S. or abroad.  

In addition to actively investigating certain priority criminal violators, DHS has set up a series of passive "checkpoints" to identify non-citizens with criminal backgrounds.  For instance, LPRs are required to submit to biometrics when applying for permanent residency, renewing an expiring I-551 green card, applying for a re-entry permit for extended foreign travel, when applying to remove the condition on permanent residency, or pursuing naturalization.  They are also subject to investigation as petitioners for family members under the Adam Walsh Act, which prohibits citizens and permanent residents convicted of certain sex offenses from petitioning family members for an immigrant visa, but in the course of DHS investigation, may also be found-out in connection with other offenses, and thereby subject to possible removal.

As federal and state law enforcement agencies have in the last several years effectively linked up their offender databases, these checkpoints have become extremely effective at identifying LPRs with law enforcement records, and at mistakenly sweeping up immigrants who do not.

The most perilous checkpoint however for LPRs is the Customs and Border Protection window at the U.S. airport or port of entry.  Now, under US Visit and the DHS Northern Hemisphere Travel Initiative, returning LPRs must present their passports and I-551 green cards to gain entry into the United States, as well as submit a fingerprint scan.  Now linked to the massive (and massively inaccurate) federal-state law enforcement database, LPRs who previously came and went in and out of the U.S. are now finding themselves being referred for deferred inspection and even being referred for removal and deportation proceedings, based on long ago arrests and convictions.  

Practically all of our client who have faced this calamitous process had no idea what they were in for when they decided to travel abroad temporarily form the U.S. Many of these clients had long ago criminal issues that they thought were completely resolved when they did their time in jail and completed probation, or when their charges were dismissed.  Most of them had also travel abroad many times before without incident, and believed their permanent residency to be in good standing.  Once taken aside at the airport, and told they were facing deportation from the U.S., these clients are devastated to learn that they could lose everything they had built up in the United States.

Returning LPRs however are not just vulnerable to trouble for criminal convictions.  DHS may also initiate a case for removal for crimes that a CBP officer can get the LPR to confess to, whether actually committed or not.  Under INA s. 212(a)(2)(A)(i), any LPR who merely admits to having committed either a crime involving moral turpitude or an offense relating to a controlled substance is subject to exclusion from the United States and potential loss of permanent residency.  In a recently publicized DHS training article for CBP inspectors, DHS officers are instructed on how to intimidate and confuse returning LPRs, under the difficult and fearsome circumstances of a CBP inspections interrogation, into confessing crimes that they might have been arrested for but subsequently cleared.  To quote,

For example, an officer encounters an alien with an arrest for cocaine possession but no conviction. He should not ask: "Have you ever knowingly possessed a controlled substance?" Rather, he should assert: "I see you've been involved with cocaine. Are you still dealing drugs?" When confronted with the very serious offense of trafficking in cocaine, many criminal drug users, will immediately deny this offense while equivocating on the lesser offense of cocaine possession. Experience indicates that if this individual actually was involved with cocaine, they will likely admit to it if questioned properly.

Sounds straight forward, doesn't it?  Get the LPR to admit to a crime he committed, even if he wasn't convicted for it.  And yet, the literature on false confessions is already well established.  And so are the punitive conditions faced by arriving non-citizens at deferred inspections that tend to promote baseless admissions.  Clients have advised our firm that upon arriving exhausted from lengthy travel, of being forced to wait hours, cooling their heels, awaiting their CBP interrogator.  While waiting, there is often little or no food provided, restricted access to medication and restrooms, denial of sleep, and no contact with family or an attorney who might help. 

Worse is the deception practiced by CBP officers.  Clients have advised us that they believed themselves compelled to agree with whatever the CBP inspector asked, and of being threatened with deportation if they refused to cooperate. And why cooperate?  Based on what our clients have told us, because of false promises that by going along with the CBP inspector, they would be allowed to go back to their families, their homes, and their jobs.  I suppose that this is what is meant by proper questioning. 

In the end, DHS will continue to innovate novel control methods for immigrants in the United States.  It's up to lawyers and advocates to defend our clients' rights under these difficult and overreaching conditions, and most importantly, to educate the immigrant community before trouble strikes. For immigrants with criminal issues, the most important step they can take to protect themselves is to consult with an attorney or legal service organization on how best to navigate these checkpoints.  Often, immigrants can do quite a lot in preparation for these encounters with DHS, first to mitigate the damage and preserve their permanent residency, but also to keep alive the opportunity to eventually become United States citizens.

Joe Wilson, Healthcare Reform and the Return of the Immigration Wedge

Give Rep. Joe Wilson (R-S.C.) and his restrictionist allies credit: they know the right buttons to push to get their way on Capitol Hill.  Whether it's claiming a federal coup on health care, or the creation of "death panels" to pull the plug on grandma, or that doctors will be forced to perform late-term abortions, the winning ticket to beat health care reform might just be our old nemesis, the illegal immigration wedge.

The Congressman might have behaved boorishly in accusing President Obama of lying when the President stated that benefits under his health care reform plan "would not apply to those who are here illegally."  Thanks to his ill-tepered outburst however, Wilson has provided both anti-health care reformers and immigration restrictionsists with a remarkable double achievement, running the health care debate into the anti-imigrant ditch. 

To his (dis)credit, Joe Wilson has raised from the dead the shibboleth of the federal government as nanny for undocumented immigrants, an issue seemingly buried in the mid-1990s, when Newt Gingrich and Bill Clinton teamed up to "end welfare as we know it."   The usefulness in this approach for opponents of Pres. Obama is that instead of talking about health care reform, the debate has diverted the discussion back to illegal immigration and electrified the right-wing base.  

Truth seems to be a casualty of this partisan war, as the populist paranoia of other partisan debates has found a home here.  As reported in the New York Times,

Democratic lawmakers, growing exasperated, have taken to reading directly from the House and the Senate bills at town-hall-style meetings.

“I don’t know how it could be more clear,” said Representative Bruce Braley, Democrat of Iowa, who has read aloud from a section of the House bill with the title “No Federal Payment for Undocumented Aliens.”

Republicans argue that some of the voters’ concerns are justified because, they say, the proposals before Congress do not spell out procedures to verify the citizenship of those who would receive health coverage.

After testing their ideas with voters during the recess, Republicans said they would press for verification measures when the health care debate picks up again in Washington.

“The language is there, but without the verification you can’t frankly believe it is serious,” said Representative Lamar Smith, Republican of Texas, who added that concerns about illegal immigrants were clearly on the minds of citizens he met in his district. Mr. Smith said Democrats “intentionally left gaping loopholes” in the proposals that illegal immigrants could step through.

Pres. Obama's gambit to temporize on immigration reform will likely haunt him on every piece of social legistation put forward by his administration.  Columnist Ruben Navarrette ably describes the President's strategic failure in a recent column,

Given the Obama administration's desire to pursue both immigration reform and health care reform - immigration should go first. Otherwise, [immigrant advocates] said, health care would fail because of public fears that illegal immigrants would get free medical services. Make those immigrants legal, they said, and it would defuse the issue.

The point is moot since the administration decided to roll the dice on health care first. But the strategists were right that the immigration debate would find a way to infiltrate the health care debate and damage it.

In fact, as divisive and shrill the health care discussion has been at times, the soon-to-be resurrected immigration debate could be much worse.

The issue isn't just causing trouble from the Anti-Immigrant Right.  Immigrant advocates in the Senate are also taking aim at Pres. Obama's promise that no undocumented immigrant would be allowed to seek benefits under any proposed reform plan.  Sen. Bob Menedez (D-N.J.) is rallying allies to withhold support from the Baucus health care reform bill.  The Hill reports,

Menendez is troubled by [restrictive] language [in the bill] and has joined Hispanic advocacy groups in criticizing the bill for placing too heavy a burden on legal and illegal immigrants.

Immigrants are not required to show proof of citizenship or legal residency to buy health insurance. If they were prohibited from participating in an insurance exchange, they would be forced to buy coverage at a significantly higher cost than legal residents.

Hispanic advocates argue that companies employing illegal immigrants would be tempted to opt out of the national health insurance exchange to avoid having to verify the immigration status of all their workers. Nearly half of illegal immigrants receive health insurance from their employers, according to one estimate.

“We’re not very pleased with the provisions in the bill,” said Brent Wilkes, national executive director of the League of United Latin American Citizens. “We think it goes far beyond what is necessary to prevent undocumented immigrants getting tax-subsidized benefits.”

Menendez and the Hispanic advocacy groups are also concerned with how Baucus would treat families made up of both legal and undocumented residents.

“I have a series of concerns about the bill,” Menendez said.

Satisfying Menendez’s objections to the immigration provisions will not be an easy task. Any concessions making it easier for immigrants to buy insurance could be seized on by opponents who have accused Democrats of planning to subsidize health plans for illegal immigrants.

These developments bode poorly for any immigration reform bill.  The health care reform debate has rendered the legislative environment so toxic, that even the pro-immigrant caucus and their allies are in disarray.  In that light, it's no wonder immigration reform continues to be pushed back on the legislative calendar.

We'll continue to keep readers posted on immigration reform efforts at http://www.immigration-defense.com.