Reflections after the election

I want to give you some thoughts about the future, after the results of the presidential election.

I do not know whether we will get any significant changes in immigration laws during the next 4 years.  It is possible, but it is also possible that there might not be changes.  It will depend on the priorities of the Trump Administration and on the actions of Congress.

For persons who are U.S. citizens or permanent residents, the election of Donald Trump should not result in any particularly new or different problems for you with respect to U.S. immigration laws.

For everyone else, if there are significant changes in immigration laws, the laws might actually help, or they might make things worse.  At this time, we just don’t know.  If there are changes in the laws, we also don’t know how quickly or slowly such changes might occur.  Things in Washington often move more slowly than we might think at first.

It is possible that the way cases are handled by the various immigration agencies will become stricter, but that also will not happen overnight.  There are thousands of immigration officials employed at USCIS, ICE, and CBP (Customs and Border Protection), and so if there are changes in procedures, they might happen slowly, if at all.  At this time, we just don’t know what changes in procedures might occur.

Probably most of the thousands of current employees in the federal government will remain working at their jobs.  Most will probably continue to handle cases the same way that they have been handling them up to now.  It is possible that the Trump Administration could call for changes in the way that cases are handled, but again, many of those changes (if any) take time to be implemented.

Some programs, such as the I-601A Provisional Waiver Program, remain in place.  A program such as I-601A could only be changed through an official process, which could take 6 months or longer.

Other programs, such as DACA, could be eliminated more quickly.  The future of DACA as of January 20, 2016 is uncertain.

I think that it is possible that CBP (the officials at the airports and the borders) might become tougher and stricter in their encounters with persons traveling into the United States.  I always advise that you communicate with me before you travel.  Now, with the election results, I want you to know that you might possibly face a more difficult encounter with CBP when you return to the United States.  We don’t know how CBP might change the way they do their job.  At this time, the best we can say is that they might become more strict.

For persons who have cases in Immigration Court, and whose cases have been administratively closed, the future is uncertain.  There exists the possibility that the new administration could order ICE to continue with your case in Immigration Court.  At this time, we do not know what the new administration might, or might not, do with cases that have been administratively closed.  If your case returns to the Immigration Court, or to the Board of Immigration Appeals (BIA), then we will have the right to continue to argue on your behalf to try to obtain any immigration benefits in Immigration Court or the BIA to which you may be entitled.

Adjudicators will not instantly start deciding cases differently from how they are doing it now. A case that would be approved today will be approved in the first few months of Trump’s presidency. There could be rapid change in specific types of cases due to a policy change – DACA is the most likely target of such a policy change – but the majority of cases will be decided the same as before.

New administrations can change how things are done, but there are laws preventing that from happening too quickly.

For cases that we are currently preparing, I expect we will be able to finish before substantial, sweeping change takes place. I cannot promise that a sudden policy change won’t affect your case, but I believe it is unlikely. The best thing to do is carry on and try to finish as quickly as possible. You can help me in that regard by providing me with requested information and documentation as quickly as possible when I request it. The sooner we finish your case, the better.

You will have questions that I will be unable to answer because I do not know the future. My promise to you is that I will do the best possible job on your case. Do not despair. Keep moving forward.

If after reading this you still have questions, please send them and I will respond as soon as I can.

Humanitarian Parole

Some families are not able to reunite completely in the United States because of the restrictions of U.S. immigration laws.  For example, a permanent resident of the United States might have a widowed mother who is all alone in her home country, and perhaps with significant difficulties in her country.  This woman’s permanent resident son or daughter is not able to file a petition for permanent residence for her, until the permanent resident is able to become a U.S. citizen, often involving a wait of 3-5 years.

Other families may have a U.S. citizen in the United States who could file a petition for mom and dad to become permanent residents, but might have a sister with medical disabilities or special needs who live with mom and dad and who is either too young or have other disabilities that would prevent her from caring for herself, especially if she lives in a country with strife or political turmoil.

For families facing this type of situation, Humanitarian Parole might be a good option to try.  Humanitarian parole is offered by USCIS to persons who have compelling reasons to be reunited with family members in the United States, but who are unable to obtain a visa.

Many persons who obtain Humanitarian Parole will become eligible to obtain a more stable immigration status in the future.  For example, some persons might be able to obtain permanent resident status after being in the United States for a number of years.  Each case is different and depends upon the particular facts of the individual persons involved.

For many persons who are granted Humanitarian Parole, the initial parole period is one year.  These persons then apply to be re-paroled while they are in the United States.  USCIS approves many of the re-parole requests, which allow persons to remain in the United States while they wait for a more stable solution to their immigration status, such as permanent resident 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, it is important to prepare the application with care.  If you believe that you or a family member might qualify for Humanitarian Parole, then you should work with an experienced immigration attorney to have the best chance of success.

I have successfully obtained Humanitarian Parole for my clients, and I would be happy to work with you to explore the possibilities for your family.

Lynch v. Dimaya: Too vague?

The Supreme Court recently decided to hear an immigration case this term called Lynch v. Dimaya.  The case involves whether a federal statute is so vague that it is unconstitutional.

Last year, the Supreme Court held that a different federal statute was “void for vagueness” in a criminal case, Johnson v. United States.  The language in the statute that the Supreme Court rendered void for vagueness was:  “… or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson, the Supreme Court concluded that the language allows for “uncertainty about how to estimate the risk posed by a crime.”  The Court also stated that the language leaves “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”

In the case before the Supreme Court at this time, Mr. Dimaya was convicted of a crime in a California criminal court.  After the criminal conviction, Mr. Dimaya was deemed to have committed an “aggravated felony” because his crime was a so-called “crime of violence” under a federal statute that states that a “crime of violence” includes “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Let’s take another look at the language in these statutes:  In Johnson, the Supreme Court stated that this language is unconstitutionally vague:

 “ … otherwise involves conduct that presents a serious potential risk of physical injury to another.”

 In Dimaya, the language at issue is:

 “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

 The language of these two statutes appears to be remarkably similar.  In Dimaya, the Ninth Circuit Court of Appeals applied the Supreme Court’s decision in Johnson and concluded that, if the language in the statute from Johnson is unconstitutionally vague, then the language in the statute from Dimaya should also be considered to be unconstitutionally vague.

Indeed, it is somewhat surprising that the Supreme Court decided to hear Dimaya.  If the Supreme Court had simply declined to hear the case, then the Ninth Circuit’s decision would remain.  It appears that the Ninth Circuit was trying to follow the Supreme Court’s own decision in Johnson.

The U.S. government in Dimaya appears to be arguing that courts should treat the language at issue differently in immigration cases, which are deemed to be “civil” in nature, from the way that it should be treated in “criminal” cases.  In other words, the government appears to be stating that the language might be unconstitutionally vague in the criminal context, but not unconstitutionally vague in the civil immigration context.

The government’s position appears to contradict the Supreme Court’s position in Leocal v. Ashcroft, 543 U.S. 1 (2004), in which the Supreme Court stated:

 “Because [this Court] must interpret the statute consistently” in “both [its] criminal and noncriminal applications,” principles governing the criminal context, including the void-for-vagueness inquiry, must govern § 16 even “in the deportation context.”

 Leocal, 543 U.S. at 11 n.8.

For more information please take a look at the government’s petition to the Supreme Court, Mr. Dimaya’s opposition, and the government’s reply.

The Supreme Court will hear arguments about this case in the first half of 2017 and will likely issue a decision by June 2017.

Esquivel-Quintana v. Lynch: Brief Update

The justices of the Supreme Court met on Friday, October 14, to review petitions, including our petition in Esquivel-Quintana v. Lynch.  On Monday, October 17, the Court issued an order list, indicating their actions on a number of cases, including many cases in which the Court denied requests to hear the case.

Thankfully, the Court did not include our case among the list of denied cases.  Although we can’t be 100 percent sure, it appears likely that our case has been “relisted,” which means that the Court will probably consider our case at the next conference, scheduled for October 28.  On October 31, the Court will issue another order list.

Studies of the Court’s decisions show that for most cases that the Court decides to hear, the Court first “relists” the case, at least once.  For a thoughtful review of the relisting process, please take a look at this brief article posted by Michael Kimberly, John Elwood, and Ralph Mayrell.

We will continue provide updates on this case.

DAPA: Supreme Court Denies Rehearing

In an earlier post, I had noted that the Obama Administration asked the Supreme Court to agree to consider the case regarding DAPA – President Obama’s plan to provide temporary relief to parents of U.S. citizens and permanent residents.

Today, the Supreme Court denied the request for rehearing.  The Supreme Court did not provide any explanation for the denial.

At this time, the DAPA case, United States v. Texas, remains in the lower courts.  The future of the case is uncertain at this time. 

Esquivel-Quintana v. Lynch: Our Reply Brief

We have now submitted our reply brief to the Supreme Court, in response to the Government’s brief in opposition to our petition.

In the reply, we take aim at the Government’s assertion that there is no significant disagreement among the circuit courts of appeals on the question of what constitutes “sexual abuse of a minor” in the context of consensual sex between a person age 16 or 17 and another person who is 3 years older.  We criticize the Government’s characterization of the Ninth Circuit’s decision in Estrada-Espinoza v. Mukasey (2008), a unanimous decision of 11 judges that a conviction under California Penal Code 261.5(c) – the same statute under which our client was convicted – is not “sexual abuse of a minor.”

We also disagree with the Government’s assertion that the Ninth Circuit could change course and conclude that such a conviction is sexual abuse of a minor – we find such a possibility extremely unlikely.  And we find fault with the Government’s approach to the cases in the Fourth and Tenth Circuits – both finding that consensual sex in this context is not “sexual abuse of a minor.”

Perhaps even more importantly, the Government’s silence speaks volumes in response to our argument that the Supreme Court’s decision in Taylor v. United States applies to our case.  In its silence, the Government appears to either concede that Taylor applies, or else assume that it does not apply to our case.  If Taylor applies, then the Board of Immigration Appeals (BIA) and the Sixth Circuit were required to consider a definition of the crime of conviction that is derived from the way in which the term is now used in the criminal codes of most states and federal law. 

And it is undeniable that the Federal Government, 43 states and the District of Columbia have laws that do not criminalize consensual sex between a 17-year-old and a person 3 years older.  According to the requirements of Taylor, a definition of “sexual abuse of a minor” could not include a conviction under California Penal Code 261.5(c).

In our reply to the Government’s opposition, we also assert that the Sixth Circuit should not have deferred to the BIA’s decision under a 1984 Supreme Court case called Chevron U.S.A. v. Natural Resources Defense Council, for two reasons.  First, the approach required by Taylor resolves the issue, and deference to the BIA is not warranted.  Second, because the term “sexual abuse of a minor” has both criminal and civil applications in federal law, the criminal rule of lenity trumps Chevron deference.

The Government appears to be arguing that the term “sexual abuse of a minor” can mean two different things – it can mean one thing in a civil proceeding, and a different thing in a criminal proceeding.  The Government’s position goes against numerous Supreme Court cases stating that a statute must mean the same thing in all contexts.

In the coming weeks, the Supreme Court will be considering whether to accept our case for consideration.  The odds are stacked against us.  The Supreme Court only accepts about 5 percent of the cases presented to it, despite the fact that many of those cases are wrongly decided at the appeals court level.  We hope that we can beat the odds in this case.

The Importance of Definitions in the Law

This week, we plan to file our reply to the Government’s opposition to our petition in the Supreme Court in Esquivel-Quintana v. Lynch.  For now, I would like to focus on the importance of definitions in the law.

Our client was convicted of a crime under a statute in California – California Penal Code 261.5(c) – that makes it a crime to have consensual sex between a person under age 18 and another person more than 3 years older.  That conduct is perfectly legal under federal law – see 18 U.S. Code Section 2243 – and the laws of 43 states and the District of Columbia.  California is one of only 7 states that makes such conduct a crime.

Here is where the importance of definitions comes in.  In 1990, the U.S. Supreme Court, in a case called Taylor v. United States, declared that in order to increase a prison sentence under a federal statute for persons who re-offend, the reviewing court must work with a definition of the crime at issue that is clear and uniform throughout the country.

In Taylor, the crime at issue was burglary.  The problem in that case was that each of the 50 states had their own separate definitions of what “burglary” was.  Mr. Taylor was convicted of burglary under a state statute, but his prison sentence was being increased because of a federal statute.  The Supreme Court ruled that reviewing courts need a clear working definition of “burglary” – a definition that the reviewing court needs to determine based on a number of sources, including federal law, the laws of the 50 states, and other sources.

In subsequent cases, the Supreme Court has held that the requirement in Taylor applies in cases involving noncitizens who have been convicted of crimes and who are subsequently charged in Immigration Court as being removable or “deportable” from the United States as a result of their criminal convictions.  If a noncitizen is convicted of a crime under a state law, then the reviewing courts in the subsequent removal proceedings – Immigration Courts, the Board of Immigration Appeals (BIA), and U.S. courts of appeals – must work with a definition of the crime of conviction that is derived from the contemporary, “generic sense in which the term is now used in the criminal codes of most States,” federal law, and the Model Penal Code. Taylor v. United States, 495 U.S. 575, 598 (1990).

Since at least 2007, in a case called Gonzales v. Duenas-Alvarez, the Supreme Court has applied this requirement from Taylor to the immigration context.  In subsequent cases, including as recently as June 2016, the Supreme Court has continued to require courts to determine a definition of the crime of conviction based on federal law, the laws of most states, and other factors.  See, for example, the Supreme Court’s decisions in Nijhawan v. Holder, (2009), Kawashima v. Holder, (2012), and Moncrieffe v. Holder, (2013).  In the Supreme Court’s most recent case citing Taylor, although the case did not directly address an immigration matter, the Supreme Court mentioned the application of Taylorto immigration cases.  Mathis v. United States, (2016).

In our case, we argue that the requirement of Taylor v. United States applies.  And we argue that the fact that the conduct for which our client was convicted is perfectly legal under federal law, as well as the laws of 43 states and the District of Columbia, means that under Taylor, our client’s conviction is not an “aggravated felony” under immigration law, because conduct that is perfectly legal in such a large majority of the country, and under federal law, could not meet the definition of “sexual abuse of a minor” under the requirements of Taylor.

In their brief in opposition, the Government mentioned Taylor in only one paragraph in which the Government described the Sixth Circuit’s approach to our case.  The Government did not argue that Taylor does not apply.

We will be following up later this week regarding our reply to the Government’s brief in opposition in our case at the Supreme Court.

Esquivel-Quintana v. Lynch: Government’s Opposition

On July 11, 2016, my colleagues and I submitted a petition to the U.S. Supreme Court to review the decision of the Sixth Circuit that upheld the Board of Immigration Appeals holding that my client’s conviction is an aggravated felony.

On September 16, 2016, the Solicitor General of the United States, the office representing the U.S. government against my client, submitted a brief in opposition to our petition.

As I explained in an earlier posting about our petition, we have several reasons for requesting review by the Supreme Court.  

First, the U.S. Courts of Appeals are deeply divided over the question of whether a conviction like my client’s – consensual sex between a 21-year-old and a person just under age 18 – is an “aggravated felony” under U.S. immigration law.

Second, we all need to receive a clear definition of what “sexual abuse of a minor” is, and what it is not.  Only by knowing what the immigration and deportation consequences of a conviction actually are may we all act accordingly – noncitizens, prosecutors, and attorneys representing noncitizens.

Third, we believe that the Sixth Circuit made an incorrect decision in our case.  The U.S. Supreme Court, in a case called Taylor v. United States, requires a clear definition of what constitutes a particular crime.  In our case, we need to know exactly what “sexual abuse of a minor” is, and what it is not.  Under the federal law, the laws of 43 states, and the law of the District of Columbia, consensual sex between a person age 21 and person just under age 18 is not a crime at all.  Under the Supreme Court’s holding in Taylor v. United States, the BIA should have provided a clear definition of what “sexual abuse of a minor” is, and it appears clear that my client’s conviction is not “sexual abuse of a minor.”

The Solicitor General’s brief in opposition claims that there exists no conflicts among the courts of appeal about the definition of “sexual abuse of a minor.”  The government’s assertion appears to ignore the decisions of the 4th, 9th, and 10th Circuits, all of which have rejected the BIA’s case law regarding “sexual abuse of a minor.”

The Solicitor General also argues that the 9th Circuit could, in future cases, agree with the BIA’s decision in Matter of Esquivel-Quintana, the BIA’s decision in our case.  The Solicitor General’s assertion appears extremely unlikely to become a reality.  First, the Department of Homeland Security is not likely to prosecute cases within the 9th Circuit because of the 9th Circuit’s unanimous en banc decision in Estrada-Espinoza v. Mukasey, which held that a conviction for consensual sex between a person under age 18 and a person more than 3 years older – the exact same statute under which my client was convicted – is not an aggravated felony for purposes of immigration law.

In fact, the Department of Homeland Security did not prosecute my client until he left the 9th Circuit and moved to Michigan, in the 6th Circuit.  Second, even if the Department of Homeland Security decided to prosecute such cases within the 9th Circuit, it is not likely that the 9th Circuit would follow the BIA’s holding in our case.  To do so would require the 9th Circuit to have another en banc decision to overturn its own precedent.  This is not likely, in light of the fact that the 9th Circuit has repeatedly followed and reaffirmed its own precedent in this area of the law.

The Solicitor General’s brief in opposition largely appears to ignore our argument that the BIA and the Sixth Circuit failed to comply with the requirements of Taylor v. United States.  Apparently, the Solicitor General might be taking the position that Taylor does not apply to our case.

I will continue to post updates regarding this case as it develops in the weeks and months ahead.

Esquivel-Quintana v. Lynch: “Sleeper” Case?

Next week, we expect to receive the Solicitor General’s response to our petition to the Supreme Court for a writ of certiorari in Esquivel-Quintana v. Lynch.  And, we expect that in October, the Supreme Court will be considering whether or not to accept the case for review.

Meanwhile, David Feder has posted about the case in the Yale Journal on Regulation.

Mr. Feder was one of the attorneys representing the National Association of Criminal Defense Lawyers in an amicus brief to the Supreme Court regarding our case.

In his post, Mr. Feder argues that if the Supreme Court decides to hear the case, the Court should take the approach that Chevron deference is not appropriate in this case because the statute at issue is a hybrid statute – a civil statute that has criminal law applications.  If the Court takes this approach, then the Court could conclude that the rule of lenity applies, which would mean that if the statute at issue is ambiguous, then my client’s conviction should not be considered to be an “aggravated felony” for purposes of immigration law.

We will continue to provide updates regarding this case.