Esquivel-Quintana v. Lynch: 6th Circuit Decision

On January 15, 2016, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a decision in a case I am handling, Esquivel-Quintana v. Lynch.

For previous postings about this case, please take a look at these:

Introduction.   Part 1.   Part 2.

Judge Danny Boggs wrote the majority opinion, joined by Judge Deborah L. Cook.  Judge Jeffrey Sutton wrote a separate opinion, concurring in part and dissenting in part.

The majority decision held that the Board of Immigration Appeals (BIA) was entitled to Chevron deference, and that their interpretation of the term “sexual abuse of a minor,” that included a conviction under California Penal Code 261.5(c), is permissible.

The majority considered our arguments regarding Taylor v. United States, but concluded that Taylor does not apply to our case.  The majority concluded that Taylor involved an application of the Armed Career Criminal Act, while our case involved the Immigration and Nationality Act.  The majority did not explain in much detail why that distinction makes a difference.

The majority also considered our argument about the Rule of Lenity, which states that an ambiguous criminal statute should be resolved in the defendant’s favor.  Interestingly, the majority stated that “there are compelling reasons to apply the rule of lenity,” but ultimately concluded that “the Supreme Court has not made it the law.”  The majority stated that, while the Supreme Court has begun to distance itself from an earlier case indicating that Chevron trumps lenity, the majority did not believe that the Supreme Court indicated clearly that lower courts should apply the rule of lenity.  The majority concluded that “[a]s an ‘inferior’ court, our job is to adhere faithfully to the Supreme Court’s precedents.”

In his separate opinion, Judge Sutton stated that he disagreed with the majority about the application of the Rule of Lenity.  According to Judge Sutton, the majority should have applied the Rule of Lenity in this case, which would have led to a conclusion that, because the term “sexual abuse of a minor” is ambiguous, the ambiguity must be resolved in favor of the defendant, and thus Mr. Esquivel-Quintana’s conviction under California Penal Code 261.5(c) would not be “sexual abuse of a minor,” which would mean that he would not be an aggravated felon for purposes of immigration law, and would have the right to return to the United States again as a lawful permanent resident.

According to Judge Sutton, because the term “sexual abuse of a minor” has both civil and criminal applications in federal law, Chevron deference to the BIA should not apply:  “Chevron has no role to play in construing hybrid statutes.”  Judge Sutton stated that there may be some cases in which which neither Chevron nor the Rule of Lenity apply.  But in Judge Sutton’s view, in this case, Chevron does not apply, and the Rule of Lenity does apply.

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Humanitarian Parole Granted

I have a client for whom I was recently able to obtain humanitarian parole.  My client was living outside the United States.  Her parents obtained immigrant visas, which enabled them to enter the United States as permanent residents.  But she would need to wait many years before she would be eligible to obtain an immigrant visa.  She is a person with special needs, including a cognitive impairment, and she is not able to live by herself.  If we were not able to obtain a solution for her to enter the United States, then her parents would have remained with her, and they would not have been able to immigrate and become permanent residents.

We presented the application to USCIS, which granted Humanitarian Parole to my client.  She was able to enter the United States along with her parents.  Eventually, after a number of years, she will be able to apply for permanent resident (green card) status.

USCIS indicates that they grant about 25 percent of the applications they receive for Humanitarian Parole, and they deny the rest.  For this reason, if you believe that you or a family member might qualify for Humanitarian Parole, then it is advised that you work with an immigration attorney to have the best chance of success.

I would be happy to work with you to explore the possibilities for Humanitarian Parole.

DAPA: Supreme Court schedules conference

The U.S. Supreme Court has scheduled a conference of the Justices on January 15, 2016, to consider whether to grant the Obama Administration’s request to review the 5th Circuit’s decision to block the implementation of DAPA.  The fact that the Court scheduled the conference for January 15 is good news, because it means that if the Court decides to hear the case, then the Court will most likely issue a decision on the case by June 2016.

As expected, the opponents of DAPA filed an opposition to the Obama Administration’s request.  In their brief, the opponents stated that they have standing to file the lawsuit against DAPA, mainly because, they argue, it will cost states additional funds to issue driver licenses to DAPA recipients.  The opponents brush aside the response that states have the authority to charge fees to cover the costs of issuing driver licenses.

The opponents go on to state that DAPA is reviewable in the courts, and that the Obama Administration did not go through the cumbersome notice-and-comment procedure before moving forward with DAPA.  Finally, the opponents stated their arguments that DAPA violates the U.S. Constitution.  They argue that the Obama Administration acted without the consent of Congress, and therefore violated the Separation of Powers – that the President took on the role of Congress without Congress’s authorization.

I expect that the Supreme Court will decide to hear the case.  The Court will hear the case if at least 4 of the 9 Justices vote to hear it.

Asylum Granted

This week I had the honor of representing a client in the Immigration Court in Detroit.  My client had entered the United States in the early 1990s.  Although she is from a country that has a history of persecuting persons like herself, she did not apply for asylum.  She ended up with a removal order from the Board of Immigration Appeals (BIA).  When I met the client in 2012, we decided to ask the BIA to reopen her case so that she could apply for asylum.  The BIA agreed to reopen the case, and sent the case to Detroit for a new hearing.

According to U.S. immigration law, in order to be granted asylum, a person must apply within 1 year of entering the United States, unless the person can demonstrate either extraordinary circumstances (which my client did not have), or changed circumstances (which we argued that my client did have).

At the hearing, at first, the attorney representing the Department of Homeland Security (DHS) indicated to me that he did not think that my client should get asylum, because we had not met any of the exceptions to the one-year filing deadline.  I stated that I thought that my client was eligible for asylum because the conditions in her country had worsened in recent years, including from 2012 up through to today.  Moreover, I had presented documents indicating that several of my client’s siblings had recently obtained refugee status.  Several had recently entered the United States as refugees, and others were in the process of obtaining refugee status and later will settle as refugees in the United States.

The thing that really changed the prosecutor’s mind, though, was a Sixth Circuit case called Mandebvu v. Holder that I brought to his attention.  In Mandebvu, the petitioners applied for asylum many years after they had entered the United States.  The Sixth Circuit overturned the decisions of an Immigration Judge and the BIA and concluded that the petitioners in that case had met the requirement of showing changed circumstances.  The Court reasoned that the petitioners could qualify for the “changed circumstances” exception to the one-year filing deadline by showing additional evidence of the type of persecution that they had already suffered, or that they would be likely to suffer upon return to their country.

Mandebvu was directly relevant to my client’s case.  Although my client could have applied for asylum prior to 2012, when we submitted her asylum application, we showed that conditions in my client’s country have deteriorated in recent years, and we also showed that several of my client’s relatives left the country as refugees in recent years.  Under Mandebvu, that is sufficient to show “changed circumstances.”  After reading the case, the prosecutor agreed with us, and we explained the situation to the Immigration Judge, who then granted asylum to my client.

My client is now an asylee, and in one year she will be eligible to apply for permanent resident (green card) status.  Later, she will be eligible to apply for U.S. citizenship.  It’s great that my client has status in the United States now, after decades of uncertainty.

Welcoming Syrians

“You’re safe at home now.”  These are the words of Canadian Prime Minister Justin Trudeau, to a group of Syrian refugees arriving in Canada.

I would like to present a few facts about the Syrian refugee crisis, with a goal of providing a bit of perspective.

Canada has agreed to accept 25,000 Syrian refugees by the end of February 2016.  Canada has a total population of approximately 35 million people.

The United States has committed to accept 10,000 Syrian refugees over the course of 2016.  The United States has a total population of approximately 319 million people.

Taking a look at these numbers, we see that Canada has committed to accept about 1 Syrian refugee for every 1,400 persons in Canada.  Meanwhile, the United States has committed to accept about 1 Syrian refugee for every 31,900 persons in the United States.

As a proportion of total population, Canada has agreed to accept almost 23 times more Syrian refugees than the United States has committed to accept.

Refugees to the United States undergo an intense level of screening before they are permitted to enter the United States.  In fact, they undergo a higher level of screening than any other persons who are permitted to enter the United States.

Steven Katz, a U.S. war veteran who served from 2003 to 2009, including two tours of ground combat duty in Iraq, pointed out that in a recent poll, a majority of Americans support U.S. airstrikes in Syria and Iraq to combat ISIS (also known as ISIL), but don’t share the same enthusiasm for accepting Syrian refugees.  Mr. Katz summed it up nicely:  “We’re willing to bomb, but not provide refuge to those trying to escape from the bombing. What does that say about our national character?”

I am distressed that so many of my fellow citizens appear to be closing their hearts to persons who so desperately need our help.  We are a nation of immigrants.  We can and should open our hearts and do more.

Dear Donald Trump

We don’t approve of your playground bullying.  We need you to take your toys and go home now.  After a licensed mental health professional has authorized your release, then you will be allowed to come out and play again, so long as you promise to play nicely.


A Solid Majority of the American People

Removing Conditions on Permanent Resident Status

If you became a permanent resident based on marriage to a U.S. citizen or permanent resident, and if you obtained your permanent resident status before your second wedding anniversary, then your status is “conditional permanent resident.”  Your green card is valid for 2 years.  You will need to file a petition to remove those conditions, to make the transition from “conditional permanent resident” to “permanent resident.”  This process is referred to as “removing the conditions” on your permanent resident status.

If you remain married to, and living with, the person who filed the petition for your 2-year green card, then you and your spouse should file the petition to remove conditions during the 90-day window of time leading up to the expiration of your 2-year green card.

If you are no longer married, or if your spouse is not willing to sign the petition, you may file the petition without your spouse’s signature.  There are several reasons for filing the petition without your spouse’s signature:

(1) Your spouse is deceased.

(2) You and your spouse have divorced.

(3) During your marriage, your spouse abused you, battered you, or subjected you to extreme cruelty.

(4) The termination of your permanent resident status would result in an extreme hardship.

If you are filing the petition without your spouse’s signature, then the time deadlines that are generally applicable to a joint filing do not apply to you. If your spouse is not signing the petition, then you could file earlier or later than the normal 90-day window of time.

After you file the petition, you will receive a receipt from USCIS on heavy paper, tinted green.  This receipt will state that your permanent resident status is automatically extended for a period of one year.

The petition to remove conditions on permanent resident status often involves complex legal and factual issues.  In order to have the best chance of success, and to avoid unnecessary delays in the process, I suggest that you work with an experienced immigration attorney on this process.

I have successfully handled many of these petitions.  I would be happy to work with you on your case.

DAPA: Supreme Court gives opponents only 8 additional days

A small bit of good news:  The U.S. Supreme Court agreed with the Obama Administration’s suggestion that the opponents of DAPA get only 8 additional days to submit their response to the Administration’s request that the Supreme Court take the case.  The opponents had asked for 30 days.

The small extension means that the opponents’ response is due to the Supreme Court by December 29, 2015.  That makes it more likely that, if the Supreme Court decides to hear the case, they might hear it and issue a decision by June 2016.

DAPA Case Update

As I stated in a previous post, on November 20, the Obama Administration’s Department of Justice asked the Supreme Court to review the 5th Circuit’s decision to allow the injunction against DAPA to stay in place.

On November 23, the attorney representing the opponents of DAPA asked for a 30-day extension to reply to the Obama Administration’s request.  If the Supreme Court grants the extension, then the opponents’ reply would be due on January 20, 2016.  That might be too late for the Supreme Court to decide the case by June 2016.

On November 24, the Obama Administration presented an opposition to the request for a 30-day extension, suggesting an 8-day extension instead.  If the Supreme Court granted an extension of 8 days, it would make more likely the possibility that the Supreme Court would address the case and issue a decision by June 2016.

The Obama Administration also stated that if the Supreme Court grants the 30-day extension, then the Obama Administration will seek to have the case handled on an expedited basis, which would mean requesting a rare May oral argument, so that the Supreme Court could still issue a decision by June 2016.  Usually the Supreme Court completes oral arguments in April, and then prepares and issues all remaining decisions in May and June.

Stay tuned for the Supreme Court’s response to these requests.