Tag Archive for: Rosenberg v. Fleuti

Cyrus Mehta

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

/0 Comments/in /by

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

More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration

/1 Comment/in /by

Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.”  This claim has, deservedly, been the subject of much ridicule.  As host Chuck Todd stated during that same interview in response to what one article rightly termed an “Orwellian turn of phrase”: “Alternative facts are not facts.  They’re falsehoods.”  Such disregard for the truth has been a common feature of the early days of the Trump Administration.

The same Orwellian approach to language has been evident in the Trump Administration’s recently issued executive orders regarding immigration.  Both the January 25, 2017, Executive Order entitled “Enhancing Public Safety in the Interior of the United States” and the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” involve in different ways a very troubling relationship with the notion of truth.  (The orders also have a number of other deeply objectionable aspects, too many to fully address in one blog post, although many other blog posts, editorials, and op-eds by other authors on the subject are well worth reading.)

The January 25 executive order, among other changes to enforcement policy, creates a list of priorities for removal which, at first glance, is intended to focus in large part on criminals.  As the New York Times explained in an article published the day the order was issued, however, the executive order in effect defines the notion of a criminal for these purposes to include people charged with a criminal offense but never convicted of anything, as well as anyone who has “committed acts that constitute a chargeable criminal offense” (or, more precisely, anyone believed by the immigration authorities to have done so).

These priorities thus include people quite far afield from any traditional notion of what it means to be a “criminal”.  It is, or used to be, a tradition of long standing in this country that one charged with a crime is presumed innocent until proven guilty.  The mere fact that someone has “been charged with any criminal offense, where such charge has not been resolved,” to quote from Section 5(b) of the January 25 executive order, does not make them a criminal.  They might be innocent of any wrongdoing, and might be acquitted as the criminal case moved forward.  The idea that any technically removable person will become a high priority by virtue of an unresolved charge, of which they may be completely innocent, is therefore very troubling.  While merely being a priority is not itself a basis for removal, the executive order implies that the Administration could pursue removal of someone facing unresolved criminal charges who had overstayed a nonimmigrant admission for a short period of time, or failed to file a change of address and could not sufficiently establish that the failure was non-willful or excusable.

The notion that anyone who has “committed acts that constitute a chargeable criminal offense” will be a priority for removal even if not convicted of any charge is also troubling, and has broader implications than may be apparent at first glance.  Entry without inspection is a misdemeanor under 8 U.S.C. 1325, for example, so this priority could be read to apply to anyone who crossed the border without authorization, at least as an adult—even if that entry took place many years ago.

The January 27 executive order, which bars entry by nationals of Syria, Iraq, Iran, Somalia, Yemen, and Libya for 90 days subject to possible future extensions, and suspends all refugee admissions for 120 days, rests even more fully on a disconnect from the truth. It purports to be focused on protecting the U.S. from “Terrorist” entry, and yet it applies to many people who are extremely unlikely to be terrorists.  Besides a distaste for refugee admissions generally, it seems to be based on antagonism towards predominantly Muslim countries, and has thus been referred to as a “Muslim ban”—although it ironically does not apply to the few predominantly Muslim countries whose citizens were responsible for the attacks against the United States on September 11, 2001 that it invokes, such as Saudi Arabia, the country of citizenship of 15 of the 19 September 11th hijackers.  (It has been pointed out that the ban appears to leave out countries where Donald Trump has done business.)  Instead, the entry ban focuses on countries which either Congress or DHS previously deemed worthy of being a basis for exclusion from the Visa Waiver Program in the event that an otherwise VWP-eligible person had dual nationality in them or had visited them—an exclusion which, while it had some perverse effects, simply meant that such people had to apply for visas and thus be subjected to additional scrutiny.  This new order, however, applies to people who already have been granted visas (or documents to travel to the United States as refugees, which are not technically quite the same thing), following intense scrutiny and under circumstances that make it quite unlikely they would actually be terrorists.

Perhaps the first and most obvious example of those who can be deemed potential “terrorists” only by Orwellian abuse of the word are those who were granted permission to immigrate specifically due to their service to the United States, such as the special immigrants issued visas based on their work for the U.S. military in Iraq.  The lead plaintiff in the ACLU lawsuit that resulted in the first temporary injunction blocking deportation of those affected by the executive order, Hameed Khalid Darweesh, was a former U.S. Army translator in Iraq who had received his special immigrant visa based on that service and had been twice targeted by terrorists in Iraq because of that service.  The Pentagon has now indicated that it will submit to the White House a list of Iraqis who have worked alongside the United States so that they may possibly be exempted from the entry ban.  That there was no exemption of such people from the January 27th executive order, and no promise even now that such people will be exempted, is even more outrageous than the executive order itself. The notion that blocking Mr. Darweesh’s entry would protect the U.S. from “terrorists” is a falsehood much graver than Mr. Spicer’s original alternative facts regarding crowd size.

While perhaps the most obvious example, however, those who served the U.S. military in Iraq are far from the only people affected by the January 27 executive order who cannot reasonably be associated with terrorism.  The executive order at least temporarily bars refugees from all countries of the world, including countries with no connection whatsoever to any past terrorist attack against the United States.  It also bars refugees persecuted by the very same extremist groups which might seek to do us harm, and whose cases have undergone extensive vetting before they reach the stage of applying for admission.  The January 27 executive order seemingly ignores the extensive screening that already exists for all refugees and visa applicants.

Despite all this, the Administration has sought to remove people covered by the January 27 executive order from the United States as soon as they arrive, without taking any time to investigate whether they might conceivably be reasonably suspected of any connection with terrorism.  Fortunately, the courts have stepped in, with both the aforementioned injunction in Mr. Darweesh’s class action and several others.  These injunctions did not come soon enough for all of the innocent victims of the executive order, however.  At least one habeas plaintiff was removed from the United States while an application for a temporary restraining order was pending, although Judge Dolly Gee of the U.S. District Court for the Central District of California has now ordered that Ali Vayeghan be returned to the United States.  Others, however, were removed or coerced to withdraw their applications for admission under circumstances that make their return less likely.

The Administration even initially sought to apply the entry ban to Lawful Permanent Residents (LPRs) of the United States with citizenship in one of the 7 affected countries—that is, people with “green cards”, who have already been cleared to live here permanently.  That was extremely legally questionable in the view of this author, given that the power relied upon by the January 27 executive order, section 212(f) of the Immigration and Nationality Act, authorizes the President to suspend the “entry” of certain aliens, and many LPRs returning from brief trips are under section 101(a)(13)(C) of the INA not to “be regarded as seeking an admission into the United States”.  Since section 101(a)(13)(A) of the INA defines “admission” as  “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” it would appear to follow that one who is inspected, and should not be regarded as seeking admission, also should not be regarded as seeking entry.  That would also be consistent with the purpose of section 101(a)(13)(C) to codify a modified version of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held under prior law that an LPR did not make an “entry” following an innocent, casual, and brief departure from the United States.   The issue may not need to be resolved in litigation in the near future, however, because the DHS Secretary, General John Kelly, determined Sunday that “the entry of lawful permanent residents is in the national interest”, and so “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS’s] case-by-case determinations.”  That is, LPRs from the affected countries will be allowed to return to the United States in most instances.  It is consistent with the theme of this blog, though, that the Administration initially sought to redefine “entry” as something other than what it ought to mean under immigration law, and still evidently reserves the right to do so if it feels it is in possession of “significant derogatory information.”

Nor are the redefinition of “entry” and the basic disconnect regarding the relevance of this entry ban to “terrorism” the only alternative facts underpinning the January 27 executive order.  The order indicates that when refugee admissions resume, preference is to be given to religious minorities, which has been understood as intended to mean Christians in predominantly Muslim countries (although there are countries where Muslims are in the minority as well).  Mr. Trump’s suggestion that Christian refugees had previously had “no chance” of coming to the United States is, however, also untrue.  As the New York Times has explained, “In 2016, the United States admitted almost as many Christian refugees (37,521) as Muslim refugees (38,901), according to the Pew Research Center.”  Many Christian leaders have denounced the entry ban.

There is also Mr. Trump’s false claim that “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.”  In fact, the narrowly focused increase in screening of refugees and applicants for Special Immigrant Visas from one country, during which some Iraqis nonetheless continued to be admitted to the United States each month of the six months in question, is in no way “similar” to a months-long outright ban on entry of nearly all citizens from seven countries.  Moreover, the heightened screening created in 2011 is still in place, so the fact that scrutiny of Iraqi refugees and visa applicants was increased six years ago cannot reasonably be offered as a reason for suspending their entry now.

The fictional Superman was known for defending “truth, justice, and the American way.”  Based on his disregard for the truth, Donald Trump has perpetrated a great injustice, one inconsistent with the American way of hospitality towards immigrants and refugees.  Several Democratic leaders have indicated that they will propose bills in Congress to overturn the January 27 executive order, and Democratic Senate leader Chuck Schumer unsuccessfully attempted Monday to get consent for a vote on such a bill.  Such bills face highly uncertain prospects in the Republican Congress, given that House Speaker Paul Ryan seemed to express support for the executive orders in his statement on the subject, but we can hope—and, for those of us whose representatives are not already on record in favor, can contact them to urge their support.  Donations to the ACLU in connection with its pending lawsuit against the January 27 executive order are another way to show opposition to the entry ban.

Alternative facts are bad enough when they concern something as trivial as crowd size.  That they would be relied upon to harm innocent immigrants is unacceptable.

Cyrus Mehta

Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder

/0 Comments/in /by

By Gary Endelman and Cyrus D. Mehta 

In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority,   made an interesting reference to piepowder courts. For an explanation of the potential significance of Vartelas v. Holder, we refer readers to our previous blog entitled Fleuti Lives! Restoration of A Constitutional Decision.

Piepowder, or dusty feet courts, as Justice Ginsburg’s decision explains in footnote 12, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe. These courts were set up to resolve disputes while the merchants’ feet were still dusty.

Justice Ginsburg made this reference to piepowder courts in the immigration context in our modern era, stating that an immigration official at the border would not set up a piepowder court to determine whether an LPR committed an offense identified in INA § 212(a)(2) to determine whether he or she was inadmissible. This is what Justice Ginsburg said: “Ordinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.”

The Supreme Court’s observation on quaint “dusty feet” courts, although charming, is also extremely significant. Most lawyers who do not practice immigration law, and of course everyone else, will be surprised to know that a non-citizen, including an LPR, can be found inadmissible under INA § 212(a)(2) for being convicted or who admits having committed certain crimes, such as crimes involving moral turpitude or controlled substance offenses.  Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible, he or she can be equally snared for having admitted to the commission of a crime. Clearly, with respect to an LPR travelling from abroad, Justice Ginsburg’s observation appears to restrict a CBP officer’s ability at an airport from trying to obtain a confession regarding the commission of a CIMT. A CBP official cannot set up a piepowder court at the airport, like the merchants of a bygone era, to try an LPR who has travelled through many time zones, and who instead of having dusty feet may have bleary eyes, for the purposes of bludgeoning him or her into an admission for having committed a crime.

Admittedly, the observation on piepowder courts was obiter dictum. It  was made in the context of whether INA § 101(a)(13)(C), enacted by the Illegal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows the government to charge a long term LPR as an arriving alien for having committed an offense under 212(a)(2), could be applied retroactively.  The Supreme Court in Vartelas v. Holder held that the  doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that an LPR who made a brief, casual and innocent trip abroad should  not be charged as an arriving alien,  still applies to LPRs with pre- IIRIRA criminal conduct. Noting that there was a presumption against retroactive legislation under Landgraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court  in Vartelas concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Court criticized the Second Circuit in the same case below, which did not find INA §101(a)(13)(C)(v) retroactive since it did not reference a conviction but only the commission of a crime, which if pleaded to prior to 1996 in reliance of more favorable treatment under pre-1996 law, would have been impermissibly retroactive as in INS v. St. Cyr, 533 U.S. 289 (2001). It was at this point that Justice Ginsburg said that “[t]he practical difference (between a conviction and commission of a crime), so far as retroactivity is concerned, escapes our grasp” and then made her observation that an immigration official would in any event need to determine under the clear and convincing standard at the border by checking the record of conviction, rather than convene a piepowder court, to determine whether the alien committed the crime.

It is also significant that Justice Ginsburg in her observation on piepowder courts affirmed that the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. This burden applies to all LPRs regardless of whether they have pre-1996 or post-1996 criminal convictions. Thus, under a Woodby analysis too, since the government bears a heavy burden of proof, it would be turning the tables on the LPR if the government tried to extract a confession regarding the commission of a crime and thus be able to escape from the heavy burden it bears under the “clear, unequivocal and convincing” standard. This can potentially happen with an LPR who may have had the charges dismissed or reduced, but a nasty CBP official still wants to know the real story via a hypothetical piepowder court at the airport. Indeed, the Board of Immigration Appeals held many years ago in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the Woodby standard, in the absence of other evidence, to establish deportability. The following extract from Matter of Guevara is worth noting:

The legal concept of a “burden of proof” requires that the party upon whom the burden rests carry such burden by presenting evidence. If the only evidence necessary to satisfy this burden were the silence of the other party, then for all practical purposes, the burden would actually fall upon the silent party from the outset. Under this standard, every deportation proceeding would begin with an adverse inference which the respondent be required to rebut. We cannot rewrite the Act to reflect such a shift in the burden of proof. [citing Woodby v. INS, supra; other citations omitted]

Of course, an LPR can still voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

Justice Ginsburg’s piepowder observation in Vartelas v. Holder, together with Matter of K and Matter of Guevara, provide more arsenal to an LPR who is charged as an arriving alien based on the commission rather than the conviction of a crime under INA § 212(a)(2). Beyond this, the disinclination to sanction ad hoc investigation through a “dusty feet” court conducted without legal sanction or moral restraint reflects a commendable preference for the stability of the written record as the framework for informed decision.

The conceptual framework that governs any discussion of retroactivity is the traditional two-step formula announced in Landgraf v. USI Film Products, supra. Since Congress did not expressly instruct on how far back IIRIRA could go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor “reasonably relied.” When in doubt, retroactivity is disfavored. The Supreme Court got it right. “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 US at 265.

Justice Ginsburg’s admonition reflects a profound appreciation of the due process rights that returning LPR’s have traditionally enjoyed.   While Woodby may not have been a constitutional decision, the warning against piepowder courts can only be understood in a constitutional context.  Remember the returning LPR seaman in Kwong Hai Chew v Colding, 349 US 590(1953) that authorities sought to exclude without a hearing; the Supreme Court reminded us that he deserved full constitutional rights to a fair hearing with all the due process protection that would have been his had he never left. Remember what Rosenberg v Fleuti, 374 US 449, 460(1963) taught us: “A resident alien who leaves this country is to be regarded as retaining certain basic rights.” Remember the ringing injunction of Shaughnessy v. US ex rel Mezei, 345 US 206, 213(1953): “A lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.”  In essence, behind Justice Ginsburg’s distaste for piepowder courts when applied to returning resident aliens, regardless of when their conviction or admission took place, is nothing less than the right “ to stay in this land of freedom.” Landon v. Plasencia, 459 US 21, 36 (1982) quoting Bridges v. Wixon, 306 US 135, 154 (1945).

The refusal to sanction IIRIRA retroactivity in Vartelas v. Holder provides the kind of predictability that LPRs need and deserve before they leave the USA and seek to return.  This, after all, is why retroactivity is disfavored .This is precisely why a piepowder court is not allowed; an LPR should know what this status means, what his or her rights are and should be able to leave the US with the confidence that an uneventful return is not only possible but entirely to be expected. In this sense, the refusal to embrace IIRIRA retroactivity and the caution against a piepowder court spring from the same place and say the same thing- predictability is at the very essence of a lawful society.  After all, to borrow Einstein’s happy phrase, God does not play dice with the universe.

(The views expressed by guest author, Gary Endelman, are his own and not of his firm, FosterQuan, LLP)

Cyrus Mehta

FLEUTI LIVES! THE RESTORATION OF A CONSTITUTIONAL DECISION

/0 Comments/in /by

By Gary Endelman and Cyrus D. Mehta

There was a time when a lawful permanent resident (LPR) or green card holder had more rights than today.

Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),   if an LPR with a criminal conviction travelled abroad,  he or she was not found inadmissible, or excludable as it was then known, if the trip was brief, casual and innocent.

This was as a result of a landmark decision of the Supreme Court, Rosenberg v. Fleuti, 374 U.S. 449 (1963).    Fleuti, an LPR and Swiss national, was found excludable after he returned from a visit to Mexico of only about a couple of hours under the then exclusion ground of being an alien “afflicted with psychopathic personality” based on his homosexuality.  This was only an excludable and not a deportable ground. If Flueti had not departed the US, he would not have been in the predicament he was in after his brief trip to Mexico. The Supreme Court interpreted a then statutory provision involving involuntary departures not resulting in an entry into the US, INA §101(a)(13),  to hold that Congress did not intend to exclude long term residents upon their return from a trip abroad that was “innocent, causal and brief.”Thus, under the Fleuti doctrine, such an LPR was not thought to have left the US so as to trigger excludability.

In 1996, IIRIRA amended § 101(a)(13), which now provides:

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien —

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of

the alien from the United States, including removal proceedings under this Act and

extradition proceedings,

(v) has committed an offense identified in section 212(a)(2), unless since such offense

the alien has been granted relief under section 212(h) or 240A(a), or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

 

The Board of Immigration Appeals in Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998),  interpreted this amendment as eliminating the Fleuti doctrine. Thus, post 1996, an LPR who was convicted of a crime involving moral turpitude (CIMT) and who travelled abroad  would be seeking admission in the US under new § 101(a)(13)(C)(v) and could be put on the same footing as any alien seeking admission who may not have the same long term ties to the US as the LPR. Such an LPR would be found inadmissible of that CIMT even if that crime did not trigger removability  had he or she not left the US. The BIA eliminated the Fleuti  doctrine   despite a long line of Supreme Court cases holding that returning LPRs were entitled to the same due process rights as they would have if they were placed in deportation proceedings. For instance, in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), involving a seaman LPR whose entry was deemed prejudicial to the public interest and who was detained at Ellis Island as an excludable alien, the Supreme Court held that we must first consider what would have been his constitutional rights had he not undertaken his voyage to foreign ports but remained continuously in the US.  Even in Landon v. Plasencia, 459 U.S. 21 (1982), where the LPR’s trip abroad involved a smuggling operation and was not  considered so innocent,  the Supreme Court held that she could seek the Fleuti exception even in exclusion proceedings as well as enjoy all the due process rights as an LPR.  Landon recognized the LPR’s long term ties with the country noting that her right to “stay and live and work in this land of freedom” was at stake along with her right to rejoin her family.  It seemed that the BIA in Matter of Collado-Munoz, an administrative agency, was limited by its inability to rule upon the constitutionality of the laws it administered despite the robust dissent of Board Member Rosenberg  who stated that “[w]e are, however, authorized and encouraged to construe these laws so as not to violate constitutional principles.” Circuit courts deferred to the BIA interpretation while “recognizing that there are meritorious arguments on both sides of the issue.”  See Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003).

As a result after IIRIRA, LPRs  with prior convictions who travelled abroad briefly for holidays, weddings or to visit sick relatives were found inadmissible upon their return, and were also detained under the mandatory detention provision pursuant to § 236(c) if the conviction was a CIMT. This was true even if the conviction occurred prior to 1996 when Fleuti existed. In January 2003,  Vartelas, an LPR,  returned from a week- long trip to Greece, and immigration officials at the airport determined he was an alien seeking admission pursuant to § 101(a)(13)(c)(v) as he was convicted in 1994 for conspiring to make counterfeit security, which was characterized as a CIMT.  Vartelas challenged his designation as an arriving alien seeking admission all the way to the Supreme Court, and in Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), the Supreme Court recently held that the Fleuti doctrine  still applies to LPRs with pre-IIRIRA convictions who travel abroad.  Noting that there was a presumption against retroactive legislation under Langraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Vartelas court noted, “Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas now face potential banishment.” We refer you the excellent practice advisory of the Legal Action Center of the American Immigration Council on how to represent clients with pre-1996 convictions who have been positively impacted by Vartelas v. Holder.

Not all share our view of Vartelas v. Holder. One expert commentator limits it to LPRs with pre-1996 convictions, and for this reason predicts that it will not have a broad impact.

We think differently.  Although the Supreme Court passed up the opportunity to rule on the viability of Fleuti for post 1996 convictions;  in footnote 2 while acknowledging that the BIA read INA §101(a)(13)(C)  to overrule Fleuti  the Court noted,  “Vartelas does not challenge the ruling in Collado-Munoz. We therefore assume, but do not decide, that IIRIRA’s amendments to §101(a)(13)(A) abrogated Fleuti.” This is significant since the Supreme Court explicitly did not affirmatively decide that Fleuti  had been repealed for LPRs who had convictions after the enactment of IIRIRA. Practitioners with have LPR clients who have been charged as arriving aliens after a brief trip abroad should continue to advocate for the viability of the Fleuti doctrine on behalf of their clients in removal proceedings.

There are compelling arguments for doing so, and we commend readers to the brilliant amicus brief that Ira Kurzban and Debbie Smith wrote for the American Immigration Lawyers (AILA) Association in Vartelas v. Holder providing suggestions on how to convincingly make them.  The key argument is that that  the §101(a)(13)(C) categories never abrogated Fleuti; rather they codified some of the characteristics of Fleuti by suggesting, for example,  that an LPR would not be seeking admission if the trip overseas was brief (§101(a)(13)(C)(ii)) and that it was innocent (§101(a)(13)(C)(iii)). Moreover, § 101(a)(13)(C) employs “shall not …unless” language, which suggests that the provisions within are only necessary conditions to trigger inadmissibility, but not necessary and sufficient conditions to trigger inadmissibility.

Moreover,  the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. Subsequent to Woodby, in Landon v. Plasencia, supra, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to an LPR in exclusion proceedings. With the introduction of  the § 101(a)(13)(C) provisions rendering a returning LPR inadmissible, the CBP’s Admissibility Review Office and more than one government lawyer argued that the heavy burden of proof that the government had  under Woodby had shifted to the LPR.  Indeed, INA §240(c)(2) places the burden on the applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible.  Fortunately, a recent decision of the BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) shatters this assumption once and for all. The BIA by affirming the Woodby standard in Rivens 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 indentified in section 212(a)(2).”  It is surprising that Justice Ginsburg did not mention Rivens although footnote No. 1 in that decision reveals that the BIA was keenly attuned to what the Supreme Court might do with the Vartelas case.

Thus, the survival of Woodby, notwithstanding the enactment of §101(a)(13)(C),  carries with it the survival of Fleuti. Even though the Vartelas Court did not have to decide if Fleuti still lived, it reminds us that, despite the failure of the BIA to realize it in Collado-Munoz, Fleuti is at heart a constitutional decision. Vartelas belongs in this same line of cases because it too emphasizes the special protection that the Constitution offers to returning LPRs. The  portion of Vartelas that  could serve as a springboard for such an argument  in a future case is part of footnote 7of the slip opinion:

“The act of flying to Greece, in contrast, does not render a lawful permanent resident like Vartelas hazardous. Nor is it plausible that Congress’ solution to the problem of dangerous lawful permanent residents would be to pass a law that would deter such persons from ever leaving the United States.”

The authors credit David Isaacson for pointing that  the second sentence, in particular, suggests a potential willingness to avoid reading 101(a)(13)(C)(v) in the way that  Collado-Munoz did, essentially on the ground that such a reading makes no sense because of its logical consequence.  One might be able to combine this with the constitutional concerns raised in the AILA amicus brief and get Collado-Munoz overturned (and Fleuti restored) on the basis of a combination of purpose-based ambiguity in the statute and the doctrine of avoidance of constitutional doubts, which trumps Chevron deference, see, e.g., Edward J. DeBartolo Corp. v. Florida Coast Bldg. and Const. Trades Council, 485 U.S. 568, 574-575 (1988).  The effect would be analogous to Zadvydas v. Davis, 533 U.S. 678 (2001) where the statute was found ambiguous largely because of concerns relating to its purpose and then interpreted in the manner that would not raise serious constitutional concerns. To the authors, this places Vartelas in a much larger context where the full potential of the ruling may be examined and developed in the future.

The significance of Vartelas  is not limited to returning permanent residents with pre-1996 convictions. Rather, when viewed with a wide-angle lens, it may serve as the ruling that restores Fleuti as a constitutional decision. Unlike the assumption of the BIA in Collado-Munoz that Fleuti was decided in what Ira Kurzban and Deborah Smith insightfully term a “constitutional vacuum,” Justice Ginsburg has given back to Fleuti the constitutional provenance that sadly it seemed to have lost.Unlike the Fifth Circuit in De Fuentes v. Gonzalez, 462 F.3d 498,503(5th Cir. 2006) that saw no “constitutional core” in Fleuti or the Third Circuit in Tineo v. Ashcroft, 350 F.3d 382,397 (3d Cir 2003) which boldly though mistakenly proclaimed that  Fleuti had no basis in constitutional principle, Vartelas harkens back to an appreciation of lawful permanent residence that IIRIRA made us think for a while had vanished: “Once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.” Landon v. Plascencia, 459 US at 32 (citing Johnson v. Eisentrager, 339 US 763, 770(1950)). If that happy day comes when Fleuti is restored in full, legal scholars may well look back to Vartelas v Holder as the case that made it all possible. The lasting contribution to the law that the Supreme Court has made through Vartelas v Holder may well be not only, or even primarily, in its forthright rejection of IIRIRA retroactivity, but rather in reclaiming for Fleuti its lasting  place in the penumbra of constitutional safeguards that have nurtured and protected the rights of lawful permanent residents.  In this sense, Fleuti did not create new rights for permanent residents so much as refine and expand existing constitutional alliances. For this reason, a revival of Fleuti would not be a radical leap into terra incognita but the rightful restoration of a constitutional regime that commands our attention and merits our respect. We do not know what the future will be for Fleuti   but, now, thanks to Vartelas,  there might be a story to tell.