Tag Archive for: landon v. plasencia

Cyrus Mehta

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

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On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.

The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”

The updated policy guidance does not break new ground.  USCIS has always rendered applicants ineligible for naturalization after it finds that they were not lawfully admitted for permanent residence. One example is if the applicant made a misrepresentation while applying for a tourist visa many years ago and failed to disclose this fact when filing the I-485 application for adjustment of status along with the submission of a waiver to overcome this ground of inadmissibility under INA 212(a)(6)(C)(1).

What is more troubling about this new guidance is that it incentivizes USCIS to find that lawful permanent residents may have abandoned that status previously even though Customs and Border Protection (CBP) may have admitted them into the United States. A naturalization applicant may have  at some point in the past been outside the US for more than 180 days, and then admitted by CBP into the US. Even if the LPR remained outside the US for over a year, as a result of inability to return to the US due to Covid-19, the LPR may still be admitted into the US.  The new guidance now encourages naturalization officers to investigate whether the applicant may have abandoned LPR status regardless of the length of prior trips abroad, even if the trips abroad were for less than 180 days. Indeed, the guidance encourages naturalization examiners to overrule a determination that CBP made at the time of the LPRs admission into the US. At that point in time, the government had a very heavy burden to establish that the LPR had abandoned permanent residence.

Under INA 101(a)(13)(C), LPRs shall not be regarded as seeking admission into the United States unless, inter alia, they have abandoned or relinquished that status or have been absent from the US for a continuous period in excess of 180 days.

It has historically been the case that when an applicant for admission has a colorable claim to lawful permanent resident status, the burden is on the government to show that they are not entitled to that status by clear, unequivocal and convincing evidence. This standard was established by the Supreme Court in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. Subsequent to Woodby, in Landon v. Plasencia, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to a permanent resident in exclusion proceedings.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) introduced the notion of “admission” in INA §101(a)(13)(C).  “Admission” replaced the pre-IIRIRA “entry” doctrine as enunciated in Rosenberg v. Fleuti,  which held that a permanent resident was not considered making an entry into the US if his or her departure was “brief, innocent or casual.” Under §101(a)(13)(C), an LPR shall not be regarded as seeking admission “unless” he or she meets six specific criteria, which include the permanent abandoning or relinquishing of that status or having been absent for a continuous period in excess of 180 days. Fleuti has been partially restored in Vartelas v. Holder with respect to grounds of inadmissibility that got triggered prior to the enactment of IIRIRA.  Moreover, the returning permanent resident who returns from a trip abroad that was more than 180 days would be treated as an applicant for admission under INA 101(a)(13)(C)(ii), and thus vulnerable to being considered inadmissible. INA 240(c)(2), also enacted by IIRIRA, requires an applicant for admission to demonstrate by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.”   INA 240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible.  On the other hand, with respect to non-citizens being placed in removal proceedings, INA 240(c)(3), also enacted by IIRIRA, keeps the burden on the government to establish deportability by “clear and convincing” evidence.

Notwithstanding the introduction of INA 101(a)(13)(C), as well as INA 240(c)(2) and INA 240(c)(3),  the Woodby standard still prevails and nothing in 101(a)(13)(C) overrules it, and the burden of proof is still on the government through clear, convincing and unequivocal evidence that LPR has lost that status. See Matadin v. Mukasey.  This was further established in 2011 by the Board of Immigration Appeals in Matter of Rivens, which held:

Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense identified in section 212(a)(2).

Although in Matter of Rivens, the BIA acknowledged that the language in INA 240(c)(3) indicated “clear and convincing” evidence rather than “clear, convincing and unequivocal” evidence as in Woodby, the BIA has not had occasion to determine that the deletion of one word “unequivocal” has  effected a substantial change to the standard.

Additionally, in cases involving the abandonment of permanent residence, it is not the length of the absence that is determinative but whether it was a “temporary visit abroad” pursuant to INA 101(a)(27)(A). The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts that requires a searching inquiry of the purpose of the trip, thus making it harder for the government to find that the LPR abandoned that status even if the trip abroad was for an extended period of time in addition to the high burden of proof that the government is required to meet under Woodby. The Ninth Circuit’s interpretation of “temporary visit abroad”  in Singh v. Reno is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

The Second Circuit in Ahmed v.Ashcroft, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales held that LPR status was not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

Although the USCIS guidance to naturalization examiners cites these and other cases regarding abandonment of LPR status, this determination was already made by the CBP at the time of the applicant’s admission when the burden was on the government to establish through clear and convincing evidence that the LPR had abandoned that status. Since presumably the government did not meet this burden then, the LPR was admitted into the US.  It is inappropriate to empower the USCIS through new policy guidance to once again meet this burden after the fact in a naturalization interview. It is one thing to investigate whether an applicant was ineligible for LPR status at the time of receiving it based on a ground of inadmissibility (e.g. fraud or misrepresentation) that was not overcome, but it is quite another to waste government resources to require USCIS to meet its heavy burden again regarding abandonment of LPR status during naturalization.  If the USCIS wants to retain guidance regarding finding abandonment in a naturalization interview, it can be narrowed, which the Biden administration may wish to consider, in circumstances where naturalization may be denied when it is readily obvious that the applicant is no longer a permanent resident. This may apply to one who was once an LPR as  the unsuccessful plaintiff in Biglar v. Attorney General, departed the US over a period of several years and then was subsequently admitted in B-2 visitor status, after which the applicant applies for naturalization. The Eleventh Circuit held that Biglar had abandoned his LPR status even though he sought to renew his green card after he was admitted into the US in B-2 status. Except for these unusual facts, the USCIS should not be investigating abandonment based on any and every absence especially when the CBP admitted the applicant as an LPR after being aware of the length of that absence from the US.

While the government will argue that the burden is on the applicant for naturalization to establish his or her eligibility, see Berenyi v. INS, the guidance also instructs the USCIS to initiate removal proceedings against LPRs who have been deemed to abandon their status. While in removal proceedings, applicants must insist that the government continue to meet its heavy burden through clear and convincing evidence to demonstrate that they abandoned LPR status, and this burden becomes doubly difficult when USICS is required to second guess a CBP officer’s determination regarding an LPRs admission several years later in a naturalization interview.

The new guidance has been introduced by the Trump administration to create a chilling effect on potential applicants on naturalization based on past travel abroad.  The Biden administration should immediately revise the guidance on January 20 or shortly thereafter.

 

David Isaacson

Fewer Rights in Pennsylvania than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security

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On August 29, 2016, the Court of Appeals for the Third Circuit issued its decision in Castro v. Dept. of Homeland Security, a consolidated set of habeas corpus petitions brought by asylum-seekers subject to expedited removal orders and detained within the Eastern District of Pennsylvania (likely at the Berks County Residential Center).  The Third Circuit held that the petitioners, who had been detained by U.S. Customs and Border Protection shortly after crossing the border into the United States, did not have the constitutional right to challenge their detentions in federal court other than in a very limited way under 8 U.S.C. §1252(e).  Unlike the Guantanamo Bay detainees whose habeas petitions were found by the Supreme Court to be constitutionally protected in Boumediene v. Bush, 553 U.S. 723 (2008), the Third Circuit ruled, recent unlawful entrants such as the Castro petitioners were not protected by the Suspension Clause of the U.S. Constitution, and had been stripped by Congress of their right to seek judicial review except under extremely limited circumstances not applicable here.  Given that the petitioners had no claim to be U.S. citizens or to have already been granted a lawful immigration status, they could only seek review of whether they were the persons referred to in pieces of paper signed by immigration officers that purported to be expedited removal orders.  Since they did not dispute that, the case was at an end, and the Third Circuit affirmed the district court’s order dismissing the habeas petitions for lack of subject-matter jurisdiction.

  Professor Steve Vladeck of the University of Texas School of Law (who I note, in the interest of full disclosure, was a law-school classmate of the author of this blog post) has described the Third Circuit’s opinion as “breathtaking”.  Professor Vladeck writes that it was “simply nuts” for the Third Circuit to conclude that under Boumediene “non-citizens physically present within the United States are less entitled to Suspension Clause protections than enemy belligerents captured on foreign battlefields and detained outside the territorial United States.”  This author is inclined to agree with that sentiment.  Boumediene arose because the Bush Administration had tried to keep detainees in a sort of Constitution-free zone in Guantanamo Bay, Cuba, purportedly outside the jurisdiction of U.S. courts.  (Fortunately, the Supreme Court did not let the Bush Administration “switch the Constitution . . . off” in this way, Boumediene, 553 U.S. at 765, and the ultimate outcome of Boumediene is a testament to the crucial importance of habeas review: on remand, petitioner Lakhdar Boumediene was found by the District Court to be detained without sufficient basis, was released, and as of 2012 was living in France.)  Pennsylvania is a far cry from Guantanamo Bay, and it seems very peculiar to suggest that non-citizens detained in Pennsylvania, clearly within the jurisdiction of the United States, could have a lesser constitutional right to habeas corpus than non-citizens detained in Guantanamo.

One might wonder whether the Third Circuit could have reached the same result by acknowledging the applicability of the Suspension Clause, but holding the petitioners in Castro to lack relevant constitutional rights which they could enforce through a habeas petition even if the courts had jurisdiction over such a petition.  Indeed, the government appears to have made such an argument in briefing quoted by the Third Circuit: “because Petitioners ‘have no underlying procedural due process rights to vindicate in habeas,’ Respondents’ Br. 49, the government argues that ‘the scope of habeas review is [] irrelevant.’”  Castro, slip op. at 65.   However, there would be a problem with this approach.  While applicants for admission to the United States may have limited due process rights under current Supreme Court case law, they do have some due process rights, and it appears to have been those rights which the Castro petitioners were seeking to assert.

The Supreme Court’s decision in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), cited by the Third Circuit to support its decision in Castro, held that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”  Knauff, 338 U.S. at 544.  Assuming for the sake of argument that the petitioners in Castro qualify for constitutional purposes as aliens denied entry into the United States, they would thus still be entitled, as a matter of due process, to “the procedure authorized by Congress”.  It appears that the Castro petitioners were attempting to assert that they did not receive the benefit of this Congressionally authorized procedure.

The Third Circuit’s decision in Castro describes two claims which were said to be “uniform across all Petitioners” in the case:

first, they claim that the asylum officers conducting the credible fear interviews failed to “prepare a written record” of their negative credible fear determinations that included the officers’ “analysis of why .. . the alien has not established a credible fear of persecution,” 8 U.S.C. § 1225(b)(1)(B)(iii)(II); and second, they claim that the officers and the IJs applied a higher standard for evaluating the credibility of their fear of persecution than is called for in the statute.

Castro, slip op. at 20 n.8.  These claims, grounded in the governing statute, assert that the petitioners did not receive “the procedure authorized by Congress,” Knauff, 338 U.S. at 544.  That statutory procedure includes a written record of a credible fear review, and determination according to a specified legal standard.  It is alleged by the Castro petitioners that, contrary to the statutory procedure, no such record was prepared and the specified standard was not used.  Thus, these claims would appear to be valid even under the limited degree of due process that applies under Knauff to “an alien denied entry”—even assuming for the sake of argument that this limited due process is appropriate to apply to an alien who has in fact effected an entry, albeit illegally.

Moreover, the Supreme Court in Boumediene, as acknowledged by the Third Circuit, had held that at a bare minimum any “constitutionally adequate habeas corpus proceeding” must “entitle[] the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” Boumediene, 553 U.S. at 773 (quoting INS v. St. Cyr, 533 U.S.289, 302 (2001)); Castro, slip op. at 48-49.  Thus, the constitutional habeas proceeding protected by Boumediene should, if available to the Castro petitioners, have entitled them to challenge whether their cases had been handled in accordance with 8 U.S.C. §1225(b)(1), as they were attempting to do.

To deny the Castro petitioners even the right to judicial oversight of whether they received “the procedure authorized by Congress”, therefore, the Third Circuit really did have to find them to lack Suspension Clause rights.  It was not merely a question of alternate analytic routes to the same result.  The outcome of Castro can only be justified on the basis that an applicant for asylum detained shortly after entry and held within the continental United States has less of a constitutional right to habeas corpus than an accused terrorist detained at Guantanamo Bay, and so cannot even enforce in court any constitutional or statutory rights which she may have.  This is a highly dubious proposition.

The Castro opinion’s rejection of jurisdiction over essentially statutory claims by the petitioners is particularly problematic because 8 U.S.C. §1252(e) itself can be read to permit such claims, implying that they should be allowed under the doctrine of constitutional doubt without the need to strike down the restrictions on habeas as unconstitutional.  Even the limited habeas review which §1252(e)(2) purports to allow with respect to “any determination made under section 1225(b)(1)” includes “determinations of . . . whether the petitioner was removed under such section.”  8 U.S.C. §1252(e)(2)(B).  The Third Circuit asserted in Castro that this means “review should only be for whether an immigration officer issued that piece of paper and whether the Petitioner is the same person referred to in that order.”  Castro, slip op. at 28 (quoting M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156, 1163-64 (D.N.M. 2014), vacated as moot, No. 14-769, 2015 WL 7454248 (D.N.M. Sept. 23, 2015)).  But just because an immigration officer has signed a piece of paper purporting to be an expedited removal order under section 1225(b)(1) does not necessarily mean that the order has been issued “under such section”.

Article VI of the U.S. Constitution provides that “treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” along with statutes.  No one would understand that to mean that a purported treaty, signed by the President but not ratified by the Senate, was the supreme law of the land.  This is because such a purported treaty would not truly have been made “under the authority of the United States” given the President’s failure to comply with governing procedures.  Similarly here, one could argue that a purported expedited removal order issued without compliance with the statutory requirements of a written record, a proper standard, and so on, is not actually issued “under” section 1225(b)(1), because it violates 8 U.S.C. §1225(b)(1)(B)(iii)(II) and other relevant statutory provisions.  At the least, this argument should have been enough for the Castro petitioners to invoke the doctrine of constitutional doubt.  The Third Circuit, however, held that in asserting constitutional doubt regarding the meaning of §1252(e)(5), the petitioners in Castro “were attempting to create ambiguity where none exists.”  Castro, slip op. at 26-27.

The courts may not be able, under the statute, to review “whether the alien is actually inadmissible or entitled to any relief from removal,” 8 U.S.C. §1252(e)(5), as the Third Circuit pointed out.  Castro, slip op. at 26.  However, “[i]n determining whether an alien has been ordered removed under section 1225(b)(1),” the courts are authorized by the statute to review whether “such an order in fact was issued and whether it relates to the petitioner.”  8 U.S.C. §1252(e)(5).  The reference to “such an order” relates back to another reference to removal “under section 1225(b)(1)”—and, once again, 8 U.S.C. § 1225(b)(1)(B)(iii)(II), relating to the necessity of a written record, is just as much a part of 1225(b)(1) as any other part, so that it is at least unclear whether an order issued in violation of 8 U.S.C. § 1225(b)(1)(B)(iii)(II) is issued “under section 1225(b)(1)”.  In its assertion that there is no relevant ambiguity in the statute, as in its constitutional analysis, the Castro panel opinion strikes this author as unpersuasive.

Depressing though the decision in Castro may be, however, it is important to note that even the Third Circuit’s decision in Castro does not foreclose all habeas corpus petitions brought to review expedited removal orders.  Beyond the restricted review that it saw as permitted by 8 U.S.C. §1252(e), the Castro opinion conceded that the statutory limitations on habeas corpus might be unconstitutional as applied to, for example, “an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1).”  Castro, slip op. at 34-35 n.13.  For reasons explained by this author in a previous article, some long-term nonimmigrant residents may have the sorts of constitutional rights to which the Third Circuit referred here even if returning from a brief trip abroad, along the lines of the rights possessed by the permanent resident who was placed in exclusion proceedings after returning from a brief trip abroad in Landon v. Plasencia, 459 U.S. 21 (1982).  Thus, even under Castro, there may be scope for habeas review of an expedited removal proceeding against a long-term nonimmigrant resident.  In that sense, for some potential habeas petitioners, all is not yet lost.

Asylum applicants who are not returning residents, however, should also have rights under the Suspension Clause, no less than the detainees at Guantanamo Bay who were held to have such rights in Boumediene.  And in exercising those rights, they should have resort to the courts to ensure that they have at least received “the procedure authorized by Congress”—as it appears the petitioners in Castro did not.

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child.  The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law.  We can hope, however, that the Third Circuit on rehearing en banc, or the Supreme Court on certiorari, may restore it to them.