Tag Archive for: President Biden

Cyrus Mehta

Biden’s Pardons: The First Drops in a Big Bucket of Criminal Reform

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By Stacy Caplow∗

President Biden pardoned thousands of United States citizens and lawful permanent residents who committed or were convicted in federal courts of simple marijuana possession since 1992, and even earlier if those records can be located. This is a record number of mass pardons since Vietnam draft resisters were pardoned by President Carter in 1977.  Predictably, no one is totally satisfied with this announcement.  The right quickly denounced Pres. Biden for being soft on criminals; criminal and immigration advocates consider these pardons to be a good start but only a small step in addressing in the unforgiving wave of over-criminalization over the past 30 years that affected so many.

While these new pardons acknowledge the racism inherent in these arrests and convictions—it’s good to express this– they also are reacting to the wave of marijuana decriminalization initiatives in almost 50% of the states where some form of marijuana use and possession has been essentially legalized. but theses pardons do not affect individuals convicted of marijuana possession in state courts. Recently, Brooklyn District Attorney dismissed over 3,500 pending marijuana cases in light of New York State’s new legislation.

Marijuana possession is a small corner of the universe of people who have been arrested, prosecuted, and incarcerated for crimes that stem from poverty and its attendant social problems. And, largely forgotten in this multitude of people caught in the net of the war on crime are the many noncitizens facing deportation for a single, often long-ago crime.  Marijuana, in particular, justified many police stops and arrests, often the first step in many more intrusions by the criminal legal system, and for some, to eventual removal proceedings.

The consequences of any conviction do not stop in the criminal courts.  Particularly harsh deportation laws enacted in the late 1990s made it almost impossible for either criminal or immigration courts to recognize any form of rehabilitation, family or community factors, physical or mental health, the context in which a crime was committed or even its age. Even convictions that carry no prison sentence or that have been vacated or expunged cannot forestall deportation.  When a citizen’s criminal case and sentence is over, they return to their communities—often burdened by civil disabilities which clearly make getting work, finding housing, securing credit, and often voting exponentially difficult.  Noncitizens are sentenced twice—they are placed in removal proceedings, often moving directly from prison to immigration detention, a difference in location but not in conditions of confinement. Sometimes, they are put into removal proceedings years later but languish in detention their cases drag on.  Their life had been back on track and then they are whisked into the horrible world of immigration detention where, for example, one of our clients, a young mother of three who came to the U.S. as a refugee, was so medically mistreated that she almost died from sickle cell disease.  The destabilizing threat of deportation hangs over their heads for years.

The Immigration and Nationality Act does contain one surprisingly generous provision:  a full, unconditional Executive pardon is a waiver of deportation for most criminal convictions.  Assuming there is no other basis for deportation, removal proceedings would be terminated because of the pardon. For the lawful permanent resident, this means restoration of that status.  For others, it may provide an opportunity to gain some form of status.

The Clemency & Pardon Project of Brooklyn Law School is a clinical program in which students file pardon applications on behalf of individuals facing removal to federal and State pardon authorities.  Our clients, most of whom came to this country as lawful immigrants decades ago, generally have been convicted of a single crime that renders them deportable.  These convictions may have occurred 10, 20 or even 30 years ago. Our clients are parents of U.S. citizens who often have health or mental health problems.  Our clients work hard to support their children, have extended families and solid community ties in the United States.

Our harsh immigration laws bar our clients from immigration relief because of their single conviction.  So, we file applications in the hope that a pardon, operating as a waiver of deportation for some crimes, will allow them to remain in the U.S.  For example, we filed federal pardon applications in early 2022 on behalf of two women both of whom have been longtime lawful permanent residents—one came as a refugee, the other gained status as a result of an abusive marriage.  Both come from countries riven by violence, corruption, and social disorder. They essentially were “drug mules” at a time in their lives when they were desperate for money to support their families.  They were convicted in federal court.  They completed their sentences and their post-release supervision.  Then, they were detained by I.C.E. and placed in removal proceedings.  Ultimately, they were released. While neither has been deported yet, their pardon applications are pending along with thousands of others.  So far, according to the U.S. Office of the Pardon Attorney, only three pardons have been granted during the Biden administration while 3,357 applications are pending.

Our other clients, mostly in New York State, face similar odds and are equally deserving of the kind of justice-correction that pardons accomplish. One of our clients whose case is pending in the New York State Executive Clemency Bureau came to the U.S. as a child of a refugee, and on the verge of starting college, played a minor role in an armed robbery.  He was just over the age limit for Youthful Offender treatment which would have prevented deportation.  He served a hefty sentence but while in prison he earned a boxful of certificates. Then, upon release, went to college, earning a B.A. with distinction.  He married and became a father of a son who is autistic.  He survived the pandemic as a food deliverer and finally just got a full-time job.

My students, their immigration lawyers and I cannot find a single reason aside from their conviction to justify their deportation.  We have more examples of people equally deserving of a pardon. Our students work hard to paint a detailed portrait of our clients to make sure that anyone reading the application truly understands the full person, their life circumstances, and the impact of deportation on their families, employers, communities and themselves.

Recently, the Governor of Oregon, Kate Brown, granted clemency, including pardons, to 73 people.  This most recent spate of clemency follows earlier grants and is a manifestation of Governor Brown’s efforts to respond to mass incarceration by performing “acts of mercy.”  This remarkable record addresses the social costs of our punitive society, but it takes courage and conviction to act this boldly.  Other governors have been a bit active in the clemency/pardon space, including former NY State Governor David Patterson, but none have specifically targeted productive, rehabilitated noncitizen offenders for particular attention.

President Biden acted decisively, if not as radically as he might have.  Now that he has tested the waters of mercy, he can use his powers even more generously and set an even stronger example to governors.  Pardon power is absolute. When its exercised cravenly, as during the Trump years, it seems corrupt.  But it also is a tool for redressing injustice.  There are nails everywhere; use that hammer.

Guest Author Professor Stacy Caplow teaches the Clemency & Pardon Project at Brooklyn Law School as well as Immigration and Criminal Law.

Cyrus Mehta

The First Step for Reforming the Immigration Courts is to Allow Immigration Judges to Administratively Close Cases

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By Cyrus D. Mehta

On May 5, 2021, the majority opinion in the Third Circuit Court of Appeals decision in Sanchez v. Attorney General followed two other circuit courts in holding that an Immigration Judge (IJ) has the authority to administratively close cases. If there is a case that is deserving for an IJ to administratively close a case, this is it. Former Attorney General Sessions, under President Trump, issued Matter of Castro Tum holding that an IJ and the Board of Immigration Appeals (BIA) did not have this authority. It is about time that the Biden administration stop defending Matter of Castro Tum. There is a great and urgent need to reform the immigration courts, including making them more independent, but a simple first step is for Attorney General Merrick Garland to withdraw Matter of Castro Tum. This would have a great impact in reducing the immigration court backlog, bring a modicum of fairness and allow an IJ to focus on serious cases.

The Petitioner in Sanchez v. AG, Arcos Sanchez, a native and citizen of Mexico, entered the US at the age of seven without inspection. In 2012, he  applied for Consideration of Deferred Action for  Childhood Arrivals (DACA) status, which was approved. The DHS periodically granted his requests for renewals. In April 2019, Sanchez was arrested and charged in New Jersey with sexual assault and endangering the welfare of a child. As a result of these charges, the USCIS revoked Sanchez’s DACA status and placed him in removal proceedings. Sanchez applied for asylum and related relief. The IJ denied his claims and issued an order of removal. Two weeks from the IJ’s decision, the state criminal charges were dismissed. As a result of the dismissal of the charges, Sanchez was eligible again for DACA status.

On appeal to the BIA, Sanchez challenged the IJ’s decision and requested that the BIA remand the case to the IJ for consideration of administrative closure so that his DACA application could be approved, which in turn would favorably impact the disposition of the removal proceeding. The BIA denied remand, citing the binding decision of Castro Tum. The Third Circuit overruled the BIA and held that 8 CFR 1003.10(b) and 1003.1(d)(1(ii) unambiguously grants IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases.

The majority in Sanchez relied on the Supreme Court’s 2018 decision in Kisor v. Wilkie, which has come to the aid of petitioners challenging DHS’s interpretation of supposedly ambiguous immigration regulations. Our prior blogs addressing the beneficial impact of Kisor v. Wilkie on federal court decisions involving immigration law are here and here.  In Auer v. Robins, the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations.  After Kisor, no longer can the DHS invoke Auer deference with respect to its ability to interpret its own regulations. The majority opinion in Kisor  essentially “cabined the scope” of Auer deference, and set forth a three-step approach. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

A great example of a federal court applying Kisor in an immigration case is the 2019 Fourth Circuit decision Romero v Barr. The court in Romero overturned Matter of Castro-Tum by holding that the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted. Even if these regulations are ambiguous, the court citing Kisor noted that Auer deference cannot be granted when the new interpretation results in “unfair surprise” to regulated parties especially when the agency’s current interpretation conflicts with a prior one. The Fourth Circuit in Romero v. Barr focused on  the specific language “may take any action…..appropriate and necessary for the disposition” of the case” in 8 CFR 1003.1(d)(1)(ii) & 1003.10(b). According to the Fourth Circuit, this language would necessarily encompass actions of whatever kind appropriate, including administrative closure, and hence there was no ambiguity thus necessitating Auer deference.

The majority in  in Sanchez agreed with this analysis. In a dissent,  Judge Paul Matey said that the rule which states that cases may only be administratively closed when “appropriate and necessary,” shouldn’t be interpreted to grant “unfettered discretion.” According to Judge Matey, “[t]o the contrary, ‘appropriate and necessary’ is itself an important restriction on the scope of the attorney general’s delegation, and one that comes with some bite.”

In a subsequent opinion in June 2020 following Romero v. Barr by now Justice Amy Coney Barrett,  the Seventh Circuit in Meza Morales v. Barr also concluded that “the immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Although the Sixth Circuit in Hernandez-Serrano v. Barr a few months later in November 2020 upheld Castro-Tum, the Third Circuit majority in Sanchez sided with the reasoning in the Fourth and Seventh Circuit.  The majority in Hernandez-Serrano was concerned that when immigration cases leave an IJ’s active calendar they never come back and “[t]hus  the  reality  is  that,  in hundreds  of  thousands  of  cases,  administrative  closure  has  amounted  to  a  decision  not  to  apply the Nation’s immigration laws at all.” But even if that is a legitimate concern, the Sanchez court reasoned that the Attorney General can amend the regulation and it is not the role for the court to interpret the regulation in a way that would alleviate the government’s concern.

Given that there are three circuits that have overruled Castro-Tum on the ground that there is no ambiguity in the regulation authorizing administrative closure, with the Supreme Court’s decision in Kisor v. Wilkie aiding this interpretation, it is about time that AG Garland restore the BIA’s decision in Matter of Avetisyan and withdraw Castro Tum. As argued in our prior blogs, here and here, Matter of Avetisyan makes more sense than Castro Tum.  In Matter of Avetisyan, an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the BIA. In Avetisyan, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

There are hundreds of thousands of cases in immigration court that do not need to be active as the respondents will be eligible for permanent residence or related relief. Reviving  Avetisyan  and withdrawing Castro Tum will go a long way in clearing the backlog in Immigration Court. In addition to reducing clutter in the immigration court’s docket, certain removal cases require resolution of questions that depend on outcomes from other immigration agencies that neither the IJ nor the BIA have any control over. Thus, the approval of an I-130 petition filed by a US citizen spouse on behalf of the foreign national spouse in removal proceedings, or the resolution of an appeal of an I-130 denial, will greatly determine the outcome of the removal case, although neither the IJ or the BIA have any control over the adjudication of the I-130 petition in a removal proceeding.  It would make sense, and also be fair, for the IJ or BIA to receive the outcome of the I-130 petition before deciding to order removal of the respondent.

The Biden administration should thus refrain from appealing Sanchez to the Supreme Court notwithstanding the circuit split. As a practical matter, the administration may likely lose since all the nine justices were either part of the majority or concurring opinions in Kisor v. Wilkie, which aids in finding that there is no need to give Auer deference to the government’s interpretation of 8 CFR 1003.1(d)(1)(ii) & 1003.10(b). Justice Ginsburg is sadly no more and has been replaced by Justice Barrett, who wrote the opinion in Meza-Morales v. Barr when she was a judge on the Seventh Circuit, which overruled Castro Tum. Hence, despite the change in composition of the Supreme Court,  there is still a very strong likelihood that the Biden administration will lose big in the Supreme Court if it asks the court to uphold Castro Tum.  It would be much easier, and more in line with the Biden administration’s thinking on bringing fairness to immigration proceedings that Trump undermined, for AG Garland to withdraw Castro Tum and reinstate Avetisyan.

 

Cyrus Mehta

President Biden Ushers in New Hope on Immigration after Trump’s Destructive and Xenophobic Four Years

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By Cyrus D. Mehta & Kaitlyn Box*

There is much for all of us to be excited about after President Biden’s inauguration on January 20, 2021 when he aggressively rescinded many of Trump’s most damaging immigration actions. We were also relieved to wake up on Saturday morning to find that there was no Friday midnight Trump regulation night aimed to hurt immigrants or put a further roadblock on legal immigration. What a nice feeling after four nightmare years.

On his first day, President Biden proposed bold new legislation and changes to our immigration system and reversed some of the most devastating policies of the last four years.  The Muslim and Africa bans were rescinded with great aplomb. We have written many blogs, here, here and here, for example,  arguing  and despairing how Trump abused his authority under INA 212(f) to ban whole countries, visa categories and millions of immigrants. While it took so much litigation challenging the Muslim ban, which the Supreme Court unfortunately upheld in Trump v. Hawaii,  it was so heartening to see President Biden rescind the ban with the stroke of a pen. The following words from the proclamation brought vindication to all our efforts to confirming how immoral the ban was:

The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.

Beyond contravening our values, these Executive Orders and Proclamations have undermined our national security.  They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over.  And they have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.

On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). Proclamation 10014, signed in April 2020, suspends certain green card applications, and restricts some nonimmigrant visa categories. Proclamation 10052 of June 22, 2020, itself an expansion of Proclamation 10014, curtailed the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the proclamation and were seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. Our previous blog discusses Proclamation 10052 in detail, and another blog discussed the fate of these bans even after the Biden administration takes over. A group of individuals who have been barred from obtaining a visa due to Proclamation 10052 have brought a lawsuit in federal court urging the Biden administration to rescind the ban and resume visa processing. It is sincerely hoped that President Biden rescinds these bans rather than waits till March 31 to allow them to lapse.

Below, is a summary of some of the salutary executive actions that have taken place thus far.

Below is a summary of the legislative proposals:

President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:

  • Provide worker protections and improvements to the employment verification process.
  • Clear employment-based visa backlogs by not counting family members, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
  • Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
  • Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
  • Reform family-based immigration.
  • Increase diversity visas from 55,000 to 80,000.
  • Promote immigrant and refugee integration and citizenship.
  • Prioritize border controls that include technology and infrastructure improvements.
  • Manage the border and provide various resources to protect border communities.
  • Crack down on criminal organizations.
  • Address underlying regional causes of migration.
  • Reform immigration courts.
  • Support asylum seekers and other vulnerable populations.
  • Change the word “alien” to “noncitizen” in U.S. immigration laws.

While it is easier for President Biden to rescind Trump’s executive actions, it will be harder to pass sweeping comprehensive immigration reform through Congress when the Senate is controlled 50-50 by Democrats and Republicans unless the filibuster is eliminated. To pass a reform bill, the administration would need to win the support of at least 10 Republican Senators, a formidable task since many Senate Republicans supported the supported Trump’s draconian immigration policies. See, e.g., Seung Min Kim, Biden to propose overhaul of immigration laws on first day in office, The Wash. Post (Jan. 18, 2021), https://www.washingtonpost.com/politics/biden-immigration-plan/2021/01/18/f0526824-59a8-11eb-a976-bad6431e03e2_story.html. However, there may be a chance for more narrow legislation to pass. Democrats have called for an agreement on the DACA program, for example, or the creation of a pathway to citizenship for essential workers. Biden must also boldly press forward with executive actions if Congress does not pass meaningful reform such as not counting family members under a reinterpretation of INA 203(d) or advancing filing dates so that many more can file adjustment of status applications.

Some of Biden’s executive actions will also be challenged in court, such as the Texas lawsuit objecting to  the 100 day pause on deportations. The suit alleged that the pause violated the president’s constitutional duty to execute the law, and agreement DHS had made to consult with the state of Texas and provide six months’ notice before softening any immigration enforcement policies. It further alleges that the state will face irreparable harm and suffer security challenges at the border because it did not receive advance notice of the pause. This challenge should fail as a prior president cannot bind a new president to an agreement with a state to notify it on any changes in its deportation policy and a state’s objections to federal immigration policy ought to also fail under the preemption doctrine.

As a result of the 60 day pause on pending regulations, the proposed Trump midnight rule that would require secondary employers to also file H-1B petitions has been tossed, which our previous blog had discussed.  The H-1B lottery rule that would select applicants based on wages will likely not take effect until March 21, 2021, which would most probably result in not taking effect this year. The DOL wage rule will still take effect on July 1, 2021 notwithstanding the 60 day pause, and we hope that there will be successful court challenges to this as well as the H-1B lottery rule  as these rules are inconsistent with the Immigration and Nationality Act. See Stuart Anderson, The Biden Administration and What Happens to Trump’s H-1B Visa Rules, https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=1932b7af726b.

All these challenges and obstacles come as no surprise and are inevitable. Still, the fact that we have a new president who has already brought about a sea change in the first few days on how the US views immigrants after Trump’s four nasty years comes as welcome relief.  We look forward to changes that not just reverse Trump’s destructive and xenophobic policies but also usher in transformative changes, both legislative and executive, that can help millions of immigrants and also benefit America.

 

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners P