Weekly Blog for 5.24.19 Part III, by Merle Kahn, Esq.
After a week of silence, the Ninth Circuit overruled the BIA’s ruling overruling the Supreme Court’s decision in Pereira. On the very same day, the BIA issued two cases further restricting the reach of Pereira. We will see if the Circuit Courts defer to those cases. Finally, the Ninth Circuit issued a decision deferring to the BIA’s decision that parole is not an admission for purposes of cancellation of removal. There is a lot to get into here. I’m going to divide the blog into three parts: Part I is the blog analyzing the Ninth Circuit’s Pereira decision which you can access here. Part II is the BIA Decisions on Pereira which you can access here. And Part III Ninth Circuit decision holding that parole is not an admission for cancellation of removal purposes.
NINTH CIRCUIT
The Ninth Circuit withdrew its precedential decision on whether parole is an admission for cancellation of removal purposes and deferred to the BIA’s decision holding that it is not. In other words, parole ≠ admission. But the case is interesting for other reasons. First, it appears that the Immigration Judge (IJ) used the wrong definition for protection under the Convention Against Torture (CAT) finding that the noncitizen had to establish past torture in order to qualify for relief. However, the Ninth Circuit found that the noncitizen did not preserve this issue for appeal, so they lacked jurisdiction over the question. Second, where the IJ mischaracterized the particular social group for asylum purposes, the BIA could not correct the mistake and find that the noncitizen did not fall into that group that the noncitizen proposed because it would be engaging in fact-finding. The Ninth Circuit ordered the case remanded on this issue.
FACTUAL BACKGROUND
Jose Alanniz is from Mexico. In 1986, when he was about four years old, his parents brought him to the United States. The family entered the country without inspection. In October 1997, Mr. Alanniz received and entered the United States on what appears to be advance parole in conjunction with an adjustment of status application. In August 2000, he adjusted status. Here is where the problems started. In 2002 he was convicted of possession of a controlled substance – to wit cocaine. In 2012, DHS placed Mr. Alanniz into removal proceedings based on the 2002 conviction. The IJ ordered Mr. Alanniz removed, the BIA denied the appeal and Mr. Alanniz filed a petition for review (PFR) with the Ninth Circuit. While the PFR was pending, Mr. Alanniz got post-conviction relief from the California Superior Court so that the 2002 conviction no longer identified the controlled substance. In other words, it wasn’t cocaine anymore. Mr. Alanniz filed a motion to reopen with the BIA. The BIA granted the motion and remanded the case to the IJ. The Ninth Circuit dismissed the PFR for lack of jurisdiction.
So the case goes back to the IJ, and the government amends the Notice to Appear (because they can always amend the NTA.) In 2006, Mr. Alanniz was convicted of being under the influence of cocaine and sentenced to 140 days in jail. Mr. Alanniz conceded removability and requested cancellation of removal, asylum, and relief under the Convention Against Torture. The IJ granted the DHS’s motion to pretermit the cancellation application. The IJ was not convinced that the 2002 conviction did not “stop time” for cancellation purposes but found that it was “undisputed” that the 2006 conviction stopped time. The BIA did not bother ruling on the issue of whether the 2002 conviction stopped time because the 2006 conviction clearly stopped time for cancellation purposes. The IJ denied Mr. Alanniz’s application for asylum (this issue will become important later) and denied his application for CAT relief finding that there was no claim or evidence that he had been harmed or tortured in the past. The BIA agreed with the IJ and the case went up again to the Ninth Circuit.
LEGAL ANALYSIS
I’m dividing the legal analysis up into three sections: (1) Parole is not an Admission; (2) CAT Relief; and, (3) Asylum. Each section is interesting by itself.
Parole is not an Admission
Mr. Alanniz applied for cancellation of removal. Cancellation of removal for lawful permanent residents requires: (1) the noncitizen has been lawfully admitted for permanent residence for a minimum of 5 years; (2) the noncitizen has been residing continuously in the United States for seven years after having been admitted in any status; and, (3) the noncitizen has not been convicted of an aggravated felony. INA § 240B(a). Mr. Alanniz met parts one and three. But, the question, was whether he had been residing in the United States for seven years after having been admitted in any status? He had not, because the Ninth Circuit found that parole was not an admission.
PUBLIC SERVICE ANNOUNCEMENT: The Ninth Circuit and the Fifth Circuit consider a wave through admission to be an admission in any status for cancellation of removal purposes. The status can be both lawful and unlawful. As long as the admission was procedurally regular, the noncitizen is good to go. Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017). But this holding is only good in the Ninth and Fifth Circuits. Matter of Castillo Angulo, 27 I.&N. Dec. 194 (BIA 2018).
Back to the reasoning in the case. In 2010, the BIA addressed the issue of whether parole was an admission and found that the definition of admission requires “the lawful entry of the alien into the United States after inspection and authorization by an immigration official.” Matter of Reza-Murillo, 25 I.&N. Dec. 296, 297 (BIA 2010). The Ninth Circuit deferred to the BIA’s decision under National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). The Ninth Circuit found that BIA’s decision in Reza-Murillo was entitled to Chevron deference. They found that it was reasonable for the BIA to apply the statutory definition of the term “admitted.” Accordingly, they had to defer to the BIA under Brand X. Alanniz v. Barr, No. 15-72792, slip op. at *12 (9th Cir. May 20, 2019).
The Ninth Circuit further found that the BIA’s holding that “parole” is not an admission is consistent with case law upholding INA § 101(a)(13)(B). The statute itself states, “An alien who is paroled under [section 212(d)(5)] or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.” I have to admit that statute seems pretty clear. But the Ninth Circuit gives that interpretation further credence by noting that the Courts have interpreted that statute to mean that a noncitizen who is paroled into the United States under INA § 212(d)(5) shall not be considered to have been admitted. Altamirano v. Gonzales, 427 F.3d 586 (9th Cir. 2005); Leng May Ma v. Barber, 357 U.S. 185 (1958). I have to say; I have to agree. A parole is not an admission and Mr. Alanniz was not admitted to the United States.
The Ninth Circuit Lacked Jurisdiction to Consider CAT Relief
This part of the case drives me crazy. The Immigration Judge found that Mr. Alanniz did not qualify for relief under the Convention Against Torture because he had not exhausted that issue in the brief. But let’s go back to the egregious error. “The IJ also denied relief under the CAT noting that there was “no claim or evidence that the respondent was harmed, much less tortured in the past.” Alanniz, slip op. at *7. When I read that, I was surprised at this new requirement of proof of past torture for relief under CAT. I checked the regulations. Sure enough the regulations say that in assessing whether or not an applicant would be tortured in the proposed country of removal “all evidence relevant to the possibility of future torture shall be considered, including but not limited to: evidence of past torture inflicted upon the applicant….” 8 C.F.R. § 1208.16(c)(3). See, all evidence relevant to the possibility of future torture. There is no specific requirement that the applicant establish past torture. But, sadly, Mr. Alanniz did not make this argument in his BIA brief and the Ninth Circuit found that he did not exhaust the argument. Alanniz, slip op. at *17. Therefore, they lacked jurisdiction to consider it.
The Asylum Claim
Here is the silver lining in the case for Mr. Alanniz. The IJ mischaracterized his particular social group for asylum. Mr. Alanniz defined proposed social group as “long term residents of the U.S. who have been deported to Mexico and will be subject to kidnappings and extortion upon arrival in Mexico.” Alanniz, slip op. at *18. The IJ had characterized the particular social group (PSG) as “returning Mexicans from the United States.” Ibid. It is a subtle distinction; but it’s important. The BIA had redefined the PSG as “long term residents of the U.S. who have been deported to Mexico and will be subject to kidnappings and extortion upon arrival in Mexico.” Alanniz, slip op. at *17. Mr. Alanniz argued that “whether a proposed social group constitutes a particular social group is a question of law, but the cognizability of a putative social group also contains factual issues, citing Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).” Alanniz, slip op. at *18. Because neither the Ninth Circuit nor the BIA are authorized to undertake the initial fact-finding necessary to determine whether a putative social group is a particular social group, everyone agreed (including the government) that the Ninth Circuit had to remand the case to the Immigration Court on the asylum issue. Very good catch there by the attorney.
Finally, there is an interesting discussion about what the Government’s duties are in retaining records. Mr. Alanniz argued that the Ninth Circuit should remand his case because it is unclear what manner of parole he was granted in 1997. He argued that under INA § 240(b)(4)(C) the government has a duty to keep a complete administrative record and the type of parole that Mr. Alanniz received is critical to the larger question of his eligibility for relief from removal. The Ninth Circuit found that Mr. Alanniz failed to exhaust this argument by failing to raise it before the IJ or the BIA. Second, the Ninth Circuit held that while the Government has the burden to establish removability, Mr. Alanniz has the burden to establish eligibility for cancellation of removal under REAL ID. The Government met its burden. Finally, the Ninth Circuit found that Mr. Alanniz did not establish that the lack of the 1997 parole document prejudiced him in any way. “Indeed under our controlling precedent of Medina-Nunez, it does not matter what type of parole issued in 1997, because what type of parole issued in 1997, because whatever its nature it does not constitute an admission.” Alanniz, slip op.at *16.
The take-away is that being paroled into the United States is not an “admission.” And if the IJ mischaracterizes the particular social group that you propose, you have an appealable issue.