Matter of M-S- (A.G. 2019)

Decided December 12, 2019
This is an anti-immigrant decision that makes it more likely that an immigrant’s application for asylum or other form of relief from removal before the Immigration Court will be denied for a perceived inconsistency.

It has always been the case that an adverse credibility determination should not be based on inconsistencies that take the immigrant by surprise.  This is true even though the immigration judge is obviously not required to adopt the immigrant’s explanation for any inconsistency.

The issue presented by this case is one of fairness –  specifically how clear it must be to the immigrant that he or she must explain inconsistencies before being denied.  In this case on appeal, the immigrant attempted to argue that the immigration judge herself must point out any inconsistency to the immigrant and provide the immigrant with an opportunity to explain the inconsistency.  However, the Board of Immigration Appeals disagreed.

An Immigration Judge may ask the applicant to respond to a perceived inconsistency, but that is not the only way to bring it to his attention. The Government may give the applicant an opportunity to respond through cross-examination. The applicant’s representative may also decide to elicit testimony on direct examination, or on redirect to clarify inconsistencies that are brought out during the hearing, particularly if they are not obvious or apparent. See, e.g., Martinez v. Holder, 734 F.3d 105, 112 (1st Cir. 2013) (noting that the applicant, who was represented by counsel, had “many missed opportunities” for clarification of his testimony). Although an Immigration Judge is not required to ask about obvious inconsistencies, there is nothing that precludes him or her from doing so for the sake of clarity and completeness of the record.

Therefore, under a broad reading of this decision, if the scope of the cross examination loosely touches on an inconsistency in the immigrant’s testimony, the immigrant can be caught off guard and removed for a perceived inconsistency that he or she was unaware needed explanation.

Matter of Castillo-Perez (A.G. 2019)

Decided October 25, 2019
To establish eligibility for cancellation of removal for non-permanent residents under the Immigration and Nationality Act as a defense to deportation the immigrant must show good moral character for a period of ten years, which is calculated backward from the date on which the application is finally resolved by the Immigration Judge or the Board of Immigration Appeals. This decision of the Attorney General holds that two or more convictions for driving under the influence during the relevant period establishes a presumption that an immigrant lacks the required good moral character.
What is particularly damning for affected immigrants is that the Attorney General’s decision seems to indicate that no amount of reformation or rehabilitation will be sufficient to overcome the presumption.  At page 671, the Attorney General states that the immigrant cannot overcome this presumption by simply showing that he “reformed himself after those convictions.”  So the decision appears to hold that the immigrant must have committed at least one of the DUIs because of some abnormality in behavior at the time of offense, e.g., the immigrant recently received a new prescription and was not used to the medication, the immigrant was drugged involuntarily, or the immigrant had something serious happen, like a death in the family, that caused the immigrant to drink when he was a teetotaler.

This opinion uses the term “DUI” to mean all state and federal impaired-driving offenses, including “driving while intoxicated,” “operating under the influence,” and the like, that make it unlawful for an individual to operate a motor vehicle while impaired. This term does not include lesser included offenses, such as negligent driving, that do not require proof of impairment. Although DUIs are the offenses at issue here, nothing in this opinion prevents immigration judges or the Board of Immigration Appeals from taking into account other convictions, such as negligent driving, in determining whether to grant cancellation of removal.

As the Attorney General points out at page 670, “Even setting good moral character aside, an alien with multiple DUI convictions would likely be denied cancellation of removal as a purely discretionary matter.”   But this case may be the nail in the coffin for many.
At least two courts have held that whether the good moral requirement has been met is a question not subject to judicial review.  Lopez-Castellanos v. Gonzales, 437 F.3d 848 (9th Cir. Feb. 16, 2006) (court lacks jurisdiction to review IJ determination that respondent lacked good moral character required to be eligible for relief); Cuellar Lopez v. Gonzales, 427 F.3d 492 (7th Cir. Oct. 26, 2005).  Another has held that it is.  Jean v. Gonzales, 435 F.3d 475 (4th Cir. Jan. 27, 2006) (determination of whether non-LPR has good moral character for purposes of cancellation of removal is a non-discretionary factor subject to judicial review).

Matter of M-S- (A.G. 2019)

Decided April 16, 2019
Arriving aliens – i.e., people who turn themselves in at a port of entry seeking asylum – and others apprehended after attempting unlawful entry into the United States at or near the border are subject to expedited removal.
They are promptly removed if they do not indicate a fear of returning to their home country which triggers referral to an asylum officer who must determine whether that person has a “credible fear of persecution or torture.”
In the past, it was common to obtain a bond for such individuals who were transferred to full immigration court proceedings (called 240 proceedings) after a positive determination of the asylum officer – at least in the case of immigrants other than arriving aliens.  This case changes that practice.

The question presented is whether aliens who are originally placed in expedited proceedings and then transferred to full proceedings after establishing a credible fear become eligible for bond upon transfer. I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States.

This is a huge decision that will frustrate the will of many people seeking safety in the United States.   The decision was made by the Attorney General – William Barr – and is part of the Trump administration’s war on immigration.  While the Department of Homeland Security retains the discretionary authority to parole individuals – or let them out of prison – while their case is pending in the immigration courts, many will wait for months if not years to receive a trial without the possibility of bond.

Denver Immigration Judge Trujillo (Women as Social Group)

Decided April 23, 2019
An immigrant may be eligible for asylum if he or she can establish a credible fear of persecution on the account of race, religion, nationality, political opinion or membership in a particular social group. The meaning of “particular social group” has been and will continue to be a cause for extensive litigation. The courts have not provided clear guidance and the more they attempt to define the phrase, the more convoluted the notion becomes. Whether gender alone could constitute a particular social group has been a question of much intrigue and little answers. Recent developments in the law might suggest that the answer is no – contrary to logic – but Denver Immigration Judge Eileen Trujillo took a bold and common sense approach to the question finding that “Mexican women” are a particular social group.

The unfortunate reality is that many countries marginalize women as second-class citizens. Sometimes this occurs through laws that grant men and women different rights, and in other instances religion or long-established cultural traditions relegate women to inferior social statuses. Where a society institutionalizes laws that permit violence against women or holds women and men in unequal standing, there is no reason why gender or sex should not align with the definition of a “refugee” and be treated as tantamount to the broad, protected classes of race, religion, and political opinion.

In this political climate, with Trump’s war on immigration ongoing, it is heartening to know a judge with such independence, strength and intellect at our local Denver immigration court.

Matter of L-A-B-R- (A.G. 2018)

Decided August 16, 2018

While it only deals with motions to continue, this case is a game changer for immigration law and is very important to be aware of for immigration attorneys fighting to protect their clients.  Gone are the days when an immigration lawyer would get an almost automatic continuance when petitions were pending with USCIS.  Now the attorney must be prepared to make substantive arguments on the record at the Master Calendar hearing for why the continuance is for good cause. The immigration lawyer must also prepare documents to bolster the arguments and submit them to the court.

According to the Attorney General, the Immigration Judge should consider two primary factors when deciding whether to grant a motion to continue:

(1) the likelihood that the immigrant will receive the collateral relief (e.g., Will the Form I -130 be approved?), and;
(2) whether the relief will materially affect the outcome of the removal proceedings (e.g., Does the immigrant even qualify for adjustment of status assuming the Form I-130 is approved?).
According to the Attorney General, the Immigration Judge should also consider whether the immigrant has exercised reasonable diligence in pursuing that relief, DHS’s position on the motion, the length of the requested continuance, and the procedural history of the case.  The Attorney General reminds the readers that it is the immigrant’s burden to establish good cause for the continuance.
To assess the speculativeness of a respondent’s collateral matter, an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like. This is consistent with Board precedents, which have repeatedly acknowledged the importance of such documentary evidence. See Hashmi, 24 I&N Dec. at 791–92; Rajah, 25 I&N Dec. at 136; Sanchez Sosa, 25 I&N Dec. at 813–14. Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings. See Giri v. Lynch, 793 F.3d 797, 801 (7th Cir. 2015) (respondent failed to present evidence supporting a good-cause finding); Ilic-Lee v. Mukasey, 507 F.3d 1044, 1048 (6th Cir. 2007) (same). If the respondent is going to establish good cause for a continuance, and impose upon the system the resulting burdens of such a delay, it is hardly too much to ask to have him substantiate that good cause would require such a result.

The Attorney General directed Immigration Judges to outline their orders on the record in the event the Board of Immigration Appeals considers an interlocutory appeal.  Failure to do so, according to the Attorney General, would require the Board vacate the order granting the continuance in the event evidence was not clear from the record that good cause existed.

There are several situations in which the Immigration Judge could conceivably deny a motion to continue based on the case law of Matter of L-A-B-R-.    It is important to be aware of how the landscape of immigration law is changing and be fully prepared for arguments by DHS against continuances.

Example 1:  Client has a pending Form I-130 based on marriage and is otherwise eligible for adjustment of status, but will need a waiver of inadmissibility for a violent offense considered a CIMT (Crime Involving Moral Turpitude).  The client’s attorney requests a continuance to permit USCIS to adjudicate the Form I – 130 and apply for adjustment of status, but DHS objects, noting that violent crimes are not favored for a grant of a waiver for inadmissibility. See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002) Hopeful Result:  The Immigration Judge understands that it is impossible to put on a case for a waiver of inadmissibility in a Master Calendar setting and grants the continuance.  Possible Result:  The Immigration Judge considers the likelihood that the waiver will be denied based on the conviction for a violent offense, denies the motion to continue and forces the client to take voluntary departure or appeal a removal order.

WAIT! That sounds really bad!  Where is due process, and wouldn’t there be a good basis for appeal? 

Maybe.  But considering that the burden of proof for a grant of a motion to continue is on the immigrant, and the Immigration Judge must only grant a continuance for good cause shown, the appeal might not be as strong as one would hope.  As the Attorney General noted:

Even if the respondent’s collateral proceeding has clear promise, it will sometimes be impossible or too uncertain that the collateral relief will affect the disposition of the removal proceedings. For example, the immigration judge must deny a continuance if he concludes that, even if USCIS approved the respondent’s visa petition, he would deny adjustment of status as a discretionary matter or because the respondent is statutorily ineligible for adjustment.

Example 2:  Client’s ex-spouse is disgruntled and calls USCIS claiming the marriage was fraudulent.  USCIS makes a rash decision without evidence that the client committed marriage fraud and places the client in removal proceedings before he can file a Form I-751 self-petition.  By the time the client reaches the Immigration Judge, the client has filed a new Form I – 751 self petition with USCIS that is currently pending.  The petition contains evidence that the the ex-spouse was disgruntled and not truthful about the marriage being fraudulent.  It also contains proof that the marriage was legitimate. The client requests a continuance so that USCIS can make a decision based on all of the facts, and the immigration judge can review that decision if necessary.  NOTE:  The immigration judge cannot decide to grant the Form I- 751 self-petition until USCIS first makes a decision The client’s attorney is prepared with a copy of the Form I – 751 filed with USCIS to provide to the Immigration Judge.   Hopeful Result:  The Immigration Judge takes a look at the documents provided by the client’s attorney, and grants a continuance since there is sufficient documentation to establish that USCIS may ultimately reverse their prior decision and grant the petition.  NOTE:  Had the attorney not been prepared with a copy of the petition, this would be a dangerous situation for the client.  Matter of L-A-B-R- makes clear that just stating on the record that a case is pending with USCIS – as was often the practice of immigration attorneys previously – will no longer be sufficient for an Immigration Judge to grant a motion to continue for good cause shown.  Possible Result: The immigration judge denies the motion to continue because the allegations of marriage fraud by USCIS are strong and the documentation provided by the client’s attorney is scant at best and does not establish a good faith marriage.

Example 3:  Client has been provided several continuances pro se (meaning without an immigration lawyer) before Matter of L-A-B-R-, and has been married to a US citizen for years.  Due to a lack of funds and sophistication, the wife does not file a Form I – 130 and the client hires an immigration lawyer at the last minute just prior to his continued Master Calendar hearing.  The immigration lawyer informs the Immigration Judge that the client is married and his US citizen spouse will be filing a Form I – 130 petition for the client.  DHS objects to the continuance, pointing out that the US citizen has not filed the Form I – 130, so that is speculative, that the client has delayed in filing it for no reason and that there has already been several continuances.  Hopeful Result: The attorney is prepared to discuss the marriage, and why it is real (e.g., the couple has children), and successfully convinces the judge to excuse the client’s negligence in failing to file the Form I – 130 because the client was very poor and unsophisticated.  The attorney promises to file the Form I – 130 on the client’s behalf that week, and the judge grants the continuance over DHS opposition.  Possible Result: The judge considers the opposition of DHS to be a strong factor against the immigrant, agrees that the wife may never help the client file a Form I-130 (indeed she has not done so for years), and rejects the excuses proffered by the attorney for the client’s delay in acting to move his case forward.  The client is ordered removed and appeals.

For a more detailed practice advisory from CLINIC, click here.