Weekly Blog for 11.23.18 By Merle D. Kahn, Esq.
I am writing this blog from San Jose, California, hundreds of miles from the wildfires, I have been sitting inside for the past week, finding it difficult to breathe, and thinking about Game of Thrones. For those of you unfamiliar with the books or the television series, everyone is fighting over the seven kingdoms and trying to gain control over the world. Meanwhile, the white walkers (zombies and monsters) are coming down from the north and are about to destroy or change the world. Only one character recognizes that the true existential threat is coming down from the north and that the fights between the seven kingdoms are ultimately meaningless. If the white walkers take over there will be no world for humans. I am watching the climate change and I am writing about immigration law. I feel like I am fighting over the seven kingdoms and ignoring the true existential threat.
Back to what I know (which is definitely not environmental law). Nothing came down from the Board of Immigration Appeals (BIA) or the Attorney General’s office this week. But I just found a fantastic Pereira decision that came out of the U.S. District Court for the Western District of Texas – Texas of all places – earlier this month that held that a notice to appear that lacked the time and date of the hearing did not confer jurisdiction on the immigration court. The decision destroys all the government’s arguments that we have been seeing in their Pereira arguments. I am blogging about this decision so that we can start using this reasoning in our arguments.
Two cases came down from the Ninth Circuit denying panel rehearing and rehearing en banc. One case held that the courts do not have habeas jurisdiction over a class action law suit regarding children’s (I refuse to use the term minors) right to government provided counsel in removal proceedings. The second case held that a “crime involving moral turpitude” is not unconstitutionally vague and if it were, the Supreme Court would have to issue a decision finding that it were.
DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
A Notice to Appear that Lacks the Time and Date of the Hearing Does Not Confer Jurisdiction on the Immigration Court
I’m always surprised when a good immigration decision comes out of Texas. Then again, this case is from the Western District which includes Austin, and Austin is practically the Bay Area. (Sorry if my California chauvinism is showing – but I moved here for a reason). As always, we owe a debt of gratitude to the wonderful attorneys at the Federal Public Defenders Offices who bring these cases and provide these stellar legal arguments.
Roberto Cruz-Jimenez is a Mexican citizen. On February 18, 2014, ICE sent him a Notice to Appear (NTA) through the mail. The NTA lacked the date and time of the hearing. Mr. Cruz-Jimenez appeared at the hearing and the Immigration Judge ordered him removed. Mr. Cruz-Jimenez waived appeal. On June 13, 2014, the government removed him from the United States. Mr. Cruz-Jimenez returned to the United States and on October 2, 2017 the government arrested him. On February 21, 2017, he was indicted for illegally reentering the United States in violation of 8 U.S.C. § 1326 (a noncitizen who has been removed from the United States who subsequently reenters the United States illegally shall be fined or imprisoned for a period of time not exceeding two years). After Mr. Cruz-Jimenez’s indictment the Supreme Court issued its opinion in Pereira v. Sessions holding that an NTA must include the time and place of the hearing. Pereira v. Sessions, 138 S. Ct. 2105 (2018). Mr. Cruz-Jimenez argued that because the NTA failed to include a date and time for his hearing the immigration court lacked jurisdiction to order his removal. Because the immigration court lacked jurisdiction, the removal was illegal and could not form the basis for an indictment for illegal reentry. The District Court agreed. The government made each of the usual arguments that we have been seeing in response to our Pereira motions and the District Court quickly and efficiently disposed of each argument. I’m going to go through these arguments one by one because they are important.
Could Mr. Cruz-Jimenez Even Bring this Challenge?
First the District Court looked at whether Mr. Cruz-Jimenez could even challenge the validity of the removal order. The court noted that a noncitizen must typically meet all three requirements of 8 U.S.C. § 1326(d) to collaterally attack the validity of a removal order. These three requirements are (1) the noncitizen must have exhausted any administrative remedies; (2) the proceedings at which the court issued the order must have improperly deprived the noncitizen of the opportunity for judicial review; and, (3) the entry of the deportation order must have been fundamentally unfair. The court noted that Mr. Cruz-Jimenez’s argument was atypical because he contended that because the Government failed to file a valid notice to appear, the immigration judge never had jurisdiction to commence removal proceedings against him. The District Court noted, “Although § 1326(d) restricts the types of collateral attacks that may be made on the validity of a deportation order, “any judgment may be collaterally attacked if it is void for lack of jurisdiction.” United States v. Cruz-Jimenez, No. A-17-CR-0063-SS, slip op. at *4 (W.D. Tx, Nov. 2, 2018). The District Court then analyzed whether the immigration court ever had jurisdiction. The rest of the decision analyzes this issue.
Scope of Pereira
The District Court analyzed the scope of Pereira. Does it only apply to the stop-time rule? The District Court said, “Indeed, Pereira does not say that a putative notice to appear that omits the time and place of a removal hearing fails to trigger the stop-time rule – it says that such a document is not a notice to appear at all.” Cruz-Jimenez slip op. *11 (emphasis in the original). The court concluded that the requirement that notices to appear include the time and date of the removal proceedings also applies to contexts outside of the stop-time rule.
Must an NTA Include Time and Place Information to Serve as a Proper Charging Document Sufficient to Best the Immigration Judge with Jurisdiction
The court notes that the analysis of whether an NTA requires time and date of the hearing, is complicated by the by the fact that an NTA is defined in both the statute and the regulations. The statute requires that the NTA include the time and place of the hearing. INA § 239(a)(1)(G). But one regulation requires that the NTA include all the information required under INA § 239 except the time and place of the removal proceedings. 8 C.F.R. § 1003.15. The government argues that because the regulations government when jurisdiction vests in the immigration court, the regulatory requirements for the notice to appear should control. This argument drives me bat-sh*t crazy! The executive branch cannot regulate out the parts of the statute that they don’t like because it’s inconvenient! Fortunately, the court agrees with me. Okay, the judge doesn’t use my exact words, but he totally agrees with me.
The court notes that the Government’s argument is based on an incomplete reading of both the applicable regulations and Pereira. First, the court notes that there is another regulation that the Government ignores – 8 C.F.R. § 1003.18. 8 C.F.R. § 1003.18 states that immigration authorities shall provide the time, date and place of the initial immigration hearing where practicable. (I would argue that this regulation is ultra vires to the statute – where practicable – really?) But the court notes that the bigger problem is that “the regulatory definition given above was expressly rejected by Pereira when it held that notices to appear must include information specifying the time and place of removal proceedings in all circumstances, not merely where the inclusion of such information was practicable.” Cruz-Jimenez slip op. at *13-14. Here’s the bonus language:
Indeed, the Supreme Court in Pereira acknowledged that the Board of Immigration Appeals had previously ruled that the stop-time rule could be triggered by a notice to appear that did not include the time and time of the removal proceedings because the regulations required this information only “where practicable.” Pereira, 138 S. Ct. at 2111-12 (citing Matter of Camarillo, 25 I.&N. Dec. 644 (BIA 2011)). But this ruling found “little support in the statute’s text.” Id., at 2120 (Kennedy, J. concurring), the Supreme Court rejected it. The Government’s position is thus directly contradicted by Pereira’s holding that, regulatory language notwithstanding, a notice to appear must always include the time and place of removal proceedings.
Cruz-Jimenez slip op. at *14.
The court then does a quickie Chevron analysis and determines that Congress has spoken directly to the issue so there is no ambiguity that the regulations need to clarify. The court notes that three facts compel this conclusion. First, the Supreme Court in Pereira noted that § 1003.18’s requirement that time and place information be included only “where practicable” is contrary to Congressional intent. Second, it would be “contradictory and absurd” for Congress to require a notice to appear that always include some of the information in Section 239 but not the date and time of the removal hearings. Pereira, 138 S. Ct. at 2115. Third, the document defined in the regulations is the same document as that defined in the statute. Both refer to the NTA as a charging document. Here’s the language where the court totally agrees with me: “The Court thus concludes that Congress unambiguously intended for notices to appear to always include information specifying the time and place of removal proceedings. Therefore, any regulation that conflicts with this unambiguous intent may not be given effect.” [Booyah!]. Furthermore, where a regulation “is inconsistent with the statutory language or is “an unreasonable implementation of it,” the regulation “will not control” over the statute.”” Cruz-Jimenez slip op. at *16-17 (citations omitted). Thank you, that’s just what I’ve been saying.
Jurisdiction of the Immigration Court
Now for dispatching of the other argument that drives me crazy. The Government argued that the Supreme Court’s decision in Pereira to remand the case rather than conclude that the immigration court lacked jurisdiction demonstrates that the Supreme Court did not consider a deficient notice to appear to be incapable of vesting jurisdiction in the immigration court. The District Court noted that the Supreme Court had no reason to consider the jurisdiction of the immigration court in Pereira’s removal proceedings. The notice to appear in Pereira was significant because it was unclear whether it triggered the stop-time rule, which had nothing to do with the immigration court’s jurisdiction. Even had the Supreme Court determined that the immigration court had lacked jurisdiction, it would not have helped Mr. Pereira because he still would have had to show that the stop-time rule was not triggered by the defective notice to appear. (I’m not so sure about this argument).
Second, the Government argues that an immigration judge may exercise jurisdiction where a notice to appear is also accompanied by a notice of hearing. The court makes short shrift of this argument. The court notes that the Fifth Circuit had held that these two documents could be used in conjunction to satisfy statutory notice requirements. But it did not consider whether this practice was sufficient to vest jurisdiction in the immigration court. Gomez-Palacios v. Holder, 560 F.3d 364, 359 (5th Cir. 2009); see also Popa v. Holder, 571 F.3d 890 (9th Cir. 2009). (The notice of hearing cured the statutory notice requirements. The Ninth Circuit did not address whether this practice was sufficient to vest jurisdiction). Next, the court notes that Gomez-Palacios pre-dated Pereira and the Supreme Court in Pereira expressly considered the argument in Pereira and rejected it.
The District Court concluded that Mr. Cruz-Jimenez’s prior removal was invalid because a charging document was never filed sufficient to vest the immigration court with jurisdiction. Thus, the indictment against Mr. Cruz-Jimenez must be dismissed. Everyone should be studying this decision and making these arguments in immigration court.
United States v. Jimenez-Cruz, No. A-15-CR-0063-SS (W.D. Tex. Nov. 2, 2018).
NINTH CIRCUIT
Children Do Not Have the Right to Raise a Right to Counsel Claim in an Affirmative Habeas Action – They Must File Petitions for Review Instead
In a blazing dissent, Judge Berzon eviscerated the Ninth Circuit decision not to rehear en banc the panel’s decision that INA § 242(b)(9) bars children from bringing a habeas action to raise their right to counsel. Maybe we should start a twitter campaign with the hashtag #ListentoMarsha. Just a thought. At issue is whether children in removal proceedings can bring a habeas action in district court claiming they have a right to counsel in removal proceedings.
In 2016, the Ninth Circuit held that a district court lacks jurisdiction over a claim that indigent child immigrants without counsel have a right to government-appointed counsel in removal proceedings. The panel held that Congress clearly provided that all claims that arise from immigration removal proceedings can only be brought through a petition for review in the federal courts of appeals. INA § 242(b)(9). “Despite the gravity of their claims, the minors cannot bypass the immigration courts and proceed directly to district court. Instead, they must exhaust the administrative process before they can access the federal courts.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016). The petitioners filed for rehearing en banc and this past week the Ninth Circuit agreed with the panel’s decision.
The entire case revolves around the interpretation of INA § 242(b)(9). Here are the relevant parts of the statute:
(b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1), the following requirements apply….
(9) Consolidation of questions for judicial review
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
Judge Berzon argued that the plain language of the statute, the circuit’s case law, and Supreme Court precedent all suggest that INA § 242(b)(9) bars district court review of a claim only where the immigration court and the Board of Immigration Appeals (BIA) have ordered the child removed and the child seeks relief from the final removal order.
Let’s go back to some of the basics here, so we understand what is at stake. A group of children brought a class action lawsuit arguing that they had a due process and statutory right to court appointed counsel in removal proceedings. The class consists of children under the age of eighteen who: (1) are in removal proceedings within the Ninth Circuit; (2) were not admitted to the United States and are being charged with the grounds of inadmissibility; (3) are without legal representation; (4) are financially unable to obtain legal representation; and (5) are potentially eligible for asylum, withholding of removal, protection under the Convention Against Torture, or are potentially eligible to make a colorable claim of U.S. citizenship. In other words, the most vulnerable members of our society.
As Judge Berzon says, “[t]he panel did not allow the merits of their right-to-counsel claim to be heard. Instead, it shut the courthouse doors on them, broadly proclaiming that 8 U.S.C. § 1252(b)(9) [INA § 242(b)(9)] strips district courts of jurisdiction to hear “any issue – whether legal or factual – arising from any removal-related activity.*.*.*. The issue in this case then, is not the merits of the right-to-counsel claim. The issue is only how and where such a claim may be raised.” J.E.F.M. v. Whitaker, No. 15-35738, slip op. *6 (9th Cir. Nov. 13, 2018). Judge Berzon explains the importance of filing a habeas claim here. First, she explains that the procedure would allow for litigation through class action rather than by each child individually. Second, she notes that the public interest organizations (you know, the ACLU et al) lack the capacity to represent these children individually but can represent the class. Finally, she notes that by hearing a class action habeas petition, the district court will be able to develop a record regarding the need for and the value of attorneys that cannot be developed in individual removal proceedings.
Here is the crux of her argument:
“The plain language of the statute, our circuit’s case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) [INA § 242(b)(9)] bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings involving the class of children here have not reached that stage, there is no statutory barrier to allowing this case to go forward.”
J.E.F.M., slip op. *7. She then surveys Ninth Circuit and Supreme Court decisions and concludes:
“In sum, our precedents, guided by the Supreme Court’s understanding in St. Cyr, have repeatedly held that § 1252(b)(9) [INA § 242(b)(9)] strips district courts of habeas jurisdiction only in cases where a final order of removal has been entered and the claim seeks relief from that order. The panel’s conclusion to the contrary in J.E.F.M. ran roughshod over the statutory language and structure, as well as binding law.”
J.E.F.M., slip op. at *15.
Judge Berzon argued that there was a second reason that the panel was wrong in its holding. J.E.F.M. disregarded the crucial rule of statutory interpretation that jurisdiction-channeling provisions should not be interpreted to result in the practical equivalent of a total denial of judicial review of constitutional and statutory claims. Id. Judge Berzon notes that the panel’s expansive reading of section 242(b)(9) severely hampers meaningful judicial review of the children’s right to counsel. Even if their cases make it to the Ninth Circuit, the cases will lack the factual record necessary to demonstrate the importance of counsel. Judge Berzon states, “Judicial review of a PFR filed in our court is confined to the record made in administrative proceedings.” J.E.F.M. slip op. at *17 citing Dent v. Holder, 627 F.3d 365 (9th Cir. 2010). We all know how important it is to create a record; and we often tear ourselves up over it. How in the world can a three-year-old create a record establishing a well-founded fear of persecution on account of race, religion, national original, membership in a social group, or political opinion, including imputed political opinion? I guarantee you that no three -year-old can even understand that previous sentence. All I can say is #ListentoMarsha.
J.E.F.M. v. Whitaker, No. 15-35738 (9th Cir. Nov. 13, 2018).
The Statute Providing that a Crime Involving Moral Turpitude is a Ground of Inadmissibility is not Unconstitutionally Vague
In another case denying panel rehearing and rehearing en banc, the Ninth Circuit amended its decision rejecting a void for vagueness claim for a crime involving moral turpitude (CIMT). You can read my original blog post here. The take-away is that the Ninth Circuit held that the grounds of inadmissibility for conviction of a CIMT is not unconstitutionally vague. The Ninth Circuit states that the Supreme Court’s holding in Jordan v. DeGeorge is binding precedent until the Supreme Court overturns it. So, a CIMT is not void-for-vagueness. Jordan v. DeGeorge, 341 U.S. 223 (1951).
I have been hearing about Jordan v. DeGeorge for years and I finally decided actually to read the case. Mr. DeGeorge’s parents brought him to the United States as a child from Italy. He grew up here, got married, and raised a family. The courts convicted him two times of what appears to be tax evasion on the sale of alcohol. It almost sounds like the Real Housewives of New Jersey. (The husband of one of the housewives was brought here from Italy as a child and the immigration court ordered removed from the United States for having been convicted of an aggravated felony (tax evasion). You can read about it here.) Here’s the actual language in DeGeorge: “This case presents only one question: whether conspiracy to defraud the United States of taxes on distilled spirits is a ‘crime involving moral turpitude’ within the meaning of § 19(a) of the Immigration Act of 1917.” Jordan v. De George, 341 U.S. at 223–24. Now here is the ultimate irony of this decision; the issue of whether a crime involving moral turpitude was unconstitutionally vague was never before the courts. Look:
“[I]t has been suggested that the phrase ‘crime involving moral turpitude’ lacks sufficiently definite standards to justify this deportation proceeding and that the statute before us is therefore unconstitutional for vagueness. Under this view, no crime, however grave, could be regarded as falling within the meaning of the term ‘moral turpitude.’ The question of vagueness was not raised by the parties nor argued before this Court.”
Jordan v. De George, 341 U.S. at 229 (emphasis added). What???? This case that everyone has been citing for the past sixty-seven years to argue that a CIMT is not unconstitutionally vague, the parties never raised the issue of vagueness. The parties never thoroughly researched the issue and never argued it in the lower courts and yet we are relying on it? I think it might be time for the Supreme Court to review this issue. But, this time, the lower courts and the Supreme Court should have the benefit of a thorough analysis and vetting of the issue.
In fairness to the Supreme Court, in De George they did analyze whether the statute was unconstitutionally vague. The Supreme Court held, “The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Connally v. General Construction Co., 269 U.S. 385 (1926) cited in Jordan v. De George, 341 U.S. at 231–32. The Supreme Court held that the language did convey sufficiently definite warnings about the proscribed conduct. The Supreme Court looked at the deep roots in the law the term CIMT had and how through out time the courts had definitely determined that fraud crimes were CIMTs.
Back to 2018. Rocio Aurora Martinez-de Ryan is a native and citizen of Mexico. She entered the United States some time before 1999. In 2010 she pleaded guilty to one count of bribery in violation of 18 U.S.C. § 666(a)(2). She had provided cash payments to an employee at the Nevada Department of Motor Vehicles, so the employee would issue identification documents to noncitizens. After her plea, the government placed Ms. Martinez-de Ryan in removal proceedings and charged with being inadmissible for having been convicted of a CIMT. Ms. Martinez-de Ryan conceded inadmissibility and sought cancellation of removal. The immigration judge ruled that the bribery conviction was a CIMT rendering her statutorily ineligible for cancellation of removal.
First the Ninth Circuit looked at whether the conduct encompassed by the full range of the criminal statute was categorically a crime of moral turpitude. The Ninth Circuit quoted the BIA finding “one test ‘to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind.” Matter of Ajami, 22 I.&N. Dec. 949, 950 (BIA 1999). The Ninth Circuit then quoted the statute which states, whoever “corruptly gives, offers, or agrees to give anything of value to any person with intent to influence…” has committed the crime. “Along with other circuits, we have held that “§ 666 contains…a corrupt intent.” Martinez-de Ryan v. Whitaker, No. 15-70759 slip op. at *6 (9th Cir. Nov. 16, 2018). Because the bribery statute requires proof of a corrupt mind, the Ninth Circuit held that it was categorically a crime involving moral turpitude.
Next, the Ninth Circuit held that a crime involving moral turpitude is not unconstitutionally vague. Notably, the government argued that the void for vagueness doctrine does not apply at all to any of the grounds of inadmissibility. The government relied on Boutilier v. INS, for this breath-taking proposition. Boutilier v. INS, 387 U.S. 118 (1967). Boutilier is a case that did not hold up well throughout the years. Clive Boutilier is a native and citizen of Canada who was deemed to be inadmissible because he was gay and “therefore afflicted with psychopathic personality and excludable under § 212(a)(4) of the INA.” Boutilier v. INS, 387 U.S. 118 (1977). The Ninth Circuit distinguished Boutilier holding that Mr. Boutilier was not being deported for conducted he engaged in after his entry into the United States, but for characteristics he possessed at the time of entry. Boutilier, 387 U.S. at 123. Here, by contrast, Ms. Martinez-de Ryan engaged in the conduct at issue after the time of entry, and the conduct in question was a criminal act rather than a status or condition.
The Ninth Circuit found that the recent Supreme Court decisions in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015) does not overrule Jordan v. DeGeorge. Moreover, Dimaya, and Johnson interpret statutory “residual” clauses whose wording does not include the phrase “moral turpitude” and are not tethered to recognized common law principles. It looks like this issue will have to go to the Supreme Court.
Martinez-de Ryan v. Whitaker, No. 15-70759 (9th Cir. Nov. 16, 2018).