DAN R. LARSSON (OSB # 04199)
Attorney at Law
Larsson Immigration Group, PC
243 SW Scalehouse Loop # 5A
Bend, OR 97702
(541) 749-2102
Attorney for Respondent
XXXX XXXX XXXX
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
BOARD OF IMMIGRATION APPEALS
IN THE MATTER OF:
XXXX XXXX XXXX
IN REMOVAL PROCEEDINGS
I.
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A # XXXX
RESPONDENT’S BRIEF
JURISDICTIONAL STATEMENT
This Court's jurisdiction vested on May 17, 2005, when XXXX XXXX XXXX
XXXX (“XXXX”), filed this appeal with the Board of Immigration Appeals, ("BIA" or
"Board") of an April 25, 2005 decision of the Immigration Judge ("IJ") at Portland,
Oregon, ordering that XXXX be removed to Mexico.
There has been an unbroken chain of jurisdiction from the inception of removal
proceedings which began when the former Immigration and Naturalization Service,
("INS" or "Service") filed the Notice to Appear, ("NTA"), with the IJ. "Legacy INS," the
new name for the defunct INS, is now subsumed under the Department of Homeland
Security, ("DHS"), as the Citizenship and Immigration Service, ("CIS"), Immigration and
RESPONDENT’S OPENING BRIEF - 1
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Customs Enforcement, ("ICE"), and Customs and Border Protection, ("CBP"). Those
successor agencies perform the functions previously performed by Legacy INS.
XXXX came into the sights of Legacy INS after her lawful permanent resident
(“LPR”) father had filed an application for adjustment of status (“AOS”) for XXXX on
March 7, 2001 with the Portland Oregon District Office, which was denied on August 14,
2001. After an apparent internal review of its cases, Legacy INS issued the NTA dated
October 7, 2004. The NTA alleged that XXXX (1) was not a citizen or national of the
United States, (2) is a native and citizen of Mexico, (3) arrived in the United States at San
Ysidro, California, on September 27, 1996, and (4) that XXXX was not admitted or
paroled after inspection by an immigration officer. As its grounds for XXXX’s removal,
the NTA charges that XXXX is subject to removal under INA § 212(a)(6)(A)(i), as an
alien present in the United States without being admitted or paroled. On or about
October 26, 2004, Legacy INS filed the NTA it had issued to XXXX with the IJ, properly
vesting jurisdiction over XXXX’s case with the IJ, and formally commencing
proceedings against XXXX.
The IJ conducted proceedings in Portland, Oregon and, on April 25, 2005,
concluded proceedings by ordering that XXXX be removed to Mexico on the charges in
the NTA. Within 30 days of the IJ's decision, before that decision had become final,
XXXX appealed the IJ's decision to the BIA which received his notice of appeal on May
17, 2005. The Board, therefore, has proper jurisdiction over XXXX’s administrative
appeal to it. See 8 C.F.R. §§ 1003.1(b)(3); 1003.3(a)(1); and 1240.15 (2003).
RESPONDENT’S OPENING BRIEF - 2
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II.
STATEMENT OF ISSUES ON APPEAL
Whether it was an abuse of discretion and violation of XXXX’s right to due
process when (1) XXXX did not receive clarification, response or ruling from the
IJ or DHS as to the legal basis why XXXX could not obtain a March 7, 2001
priority date nunc pro tunc to benefit from Section 245(i) of the LIFE Act
provisions of the Immigration and Nationality Act (INA), as amended, which
sunset on April 30, 2001, when Legacy INS delayed returning an approvable I130 filed on March 7, 2001 until August 14, 2001, due to incorrect filing fees, in
apparent error and contrary to its own regulations to the prejudice of XXXX; (2)
the IJ did not agree to further continuance of the proceedings in order for
XXXX’s LPR father to finalize his application for naturalization which is
currently still pending, which on approval would make XXXX an immediate
relative and permit her immediate adjustment under Section 245(i); and (3) the IJ
refused to hear arguments as to why receiving the results of XXXX’s Freedom of
Information Act (“FOIA”) request was important on the issue of relief and
threatened XXXX’s counsel with a bar complaint for insufficient legal
representation until the IJ agreed at the end of proceedings that XXXX had strong
legal arguments?
III.
THIS CASE IS NOT APPROPRIATE FOR SUMMARY
AFFIRMANCE
XXXX’s appeal raises significant legal and constitutional issues relating to
removal proceedings. Because one judge may only make minor modifications to and
affirm the immigration judge's decision, XXXX's case is thus inappropriate for summary
review. 8 C.F.R.§1003.1(e)(4) and (5). For these reasons, it is appropriate that a threemember panel review the current appeal.
IV.
STATEMENT OF THE CASE
a. Nature of the Case.
This is a challenge to the failure of the IJ or the government to clarify, respond to or
rule on the legal basis why XXXX could not obtain a March 7, 2001 priority date nunc
pro tunc to benefit from Section 245(i) of the LIFE Act provisions of the Immigration
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and Nationality Act (INA), the IJ's denial of further continuance of proceedings since
XXXX’s LPR had not yet naturalized, and the IJ’s conduct during proceedings.
b.
Procedural Status of the Case.
This case commenced in Portland, Oregon where Legacy INS filed an NTA with the
IJ, commencing removal proceedings against XXXX. The IJ phase of proceedings was
held in their entirety in Portland, Oregon, culminating in the IJ's order that XXXX be
removed to Mexico. XXXX timely filed this appeal with the BIA.
V.
STATEMENT OF FACTS
a. Summary of Facts
XXXX, now 19 years old, is a native and citizen of Mexico and was born on
August 8, 1986. She initially entered the U.S. about July 1, 1996 without inspection.
XXXX resides with her family in Bend, Oregon. Her mother and father are legal
permanent residents (LPR) through the 1986 legalization program. XXXX has two
siblings, one brother and one sister. XXXX does not have any criminal issues, and has
been attending community college.
On or about January 5, 1998, XXXX’s LPR father filed an (approved) I-130
petition (LIN-98-075-50306) pro se. XXXX’s father listed the oldest son as the
beneficiary and listed his two daughters (XXXX and her sister Soledad) in Section 16,
thinking that they were all included on the same form.
On or about February 14, 2001, through the assistance of a “notario”, XXXX’s
father filed with legacy INS, Portland Oregon, applications for adjustment of status (with
all supporting documents and required forms) for XXXX, her sister and brother.
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Included with these applications were new I-130 applications for XXXX and her sister
(and a copy of the brother’s approved I-130 listing XXXX and her sister), and also a
cover letter explaining what had happened in 1998 and requesting that XXXX receive the
same priority date of her brother’s approved 1998 application. The applications were
stamped with a March 7, 2001 receipt date, and were “feed in” on March 28, 2001, before
the April 30, 2001 sunset date of 245(i). However, the only filing fees paid was the I-485
and fingerprint fees.
On or about August 14, 2001 (well after the April 30, 2001 245(i) sunset date),
legacy INS sent out a letter denying XXXX’s adjustment application affirming the above
facts, on the grounds that there was no separate application fee for the I-130 application.
The denial directed XXXX to refile the I-130 application with the Nebraska Service,
which was done (xxxxxx, approved on November 22, 2005, with an October 10, 2001
priority date).
b.
Summary of Proceedings
November 18, 2004 Master Calendar Hearing (MCH):
XXXX first appeared before IJ Michael H. Bennett on November 18, 2004,
represented by counsel XXXX XXXX of Larsson Immigration Group, PC, Bend,
Oregon. At this master calendar hearing (MCH), XXXX submitted copies of Freedom of
Information Act (FOIA) requests that had been filed on November 10, 2004, as well as
copies of applications for naturalization for XXXX’s LPR father and mother. When
counsel attempted to explain that it was unclear that all allegations on the NTA were
correct (regarding the entry date which was listed as September 27, 1996 on the NTA),
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and needed to be confirmed with prior records as the FOIA results had not been received
yet, the IJ stated that:
We are not going to go out, like put you under any physical coercion to have to do
it but if you simply don't say anything then the charges will be sustained…. That's
all what will happen, I mean, the thing is it would seem like if there's no real contest
on it to have a trial over it'll be like Seinfeld, a t r i a l about nothing, there won't be
anything, you'll say nothing, the charges will be sustained and that will the end of it. If
that's what your going to do?
Transcript of Hearing (TH) at 4.
Since XXXX was so young when she entered the U.S., the IJ then requested her
LPR father to take the stand regarding the date of her entry, further stating that:
Let me put it t h i s way, I don't think reasonably that you need a FOIA to find that
out. Her father is here. I mean unless h e suffered some brain injury or has some
memory deficit, we're not asking exactly. Now, Mr. XXXX, again you know the
Court does have patience but if t h i s i s the case then you can all get back together
and come back here to Portland again, and t h a t ' l l be on your time. I'm not going
t o go around and around on it but that's not only the expectation of the Court but I mean
it's a law so it's not my, I'm not here just to after you but I don't think you need to, it'd
be like you know I ask you what's m y address, I need to send it t o the
Government so they can tell me my address. Well no, I don't think you really need
to do that. Your expected to know your address. What's my birth date, I have to check
in with the Government to see what my birth date is, well, now maybe you need the
Government records but if I asked yo u what your birth date is, so this is also kind of,
when did she come to the United States, when did you bring get your daughter
here? Reasonably, I don't think I should have to go to this extend to get that
information.
TR at 6-7.
Then, after XXXX’s father was called to the stand, the IJ proceeded as follows:
JUDGE TO MR. XXXX
Q. Please have a seat, sir. Did you come to the United States unlawfully with your
daughter?
A. Yes.
Q. And when was that?
A. In 1996.
Q. Just a minute.
JUDGE TO MR. XXXX
Q. You can speak up and make objections, but your raising your hand, yes, Mr.
XXXX?
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A. Frankly, Judge I don't believe the witness understand the question. He's been a
legal permanent resident since 1990.
Q. Okay, well come back on December 14 at nine o'clock and get it straighten
out. Thank you.
TR at 9.
December 14, 2004 MCH
XXXX then again appeared with counsel XXXX on December 14, 2004. After
amending the entry date on the NTA to July 1996 and admitting the rest of the
allegations, the IJ sustained the charge. TR at 12. When the issue of eligibility for relief
was discussed, counsel XXXX stated that XXXX appeared to be eligible under INA §
245(i) but that the FOIA results had not been received yet to clarify the record. TR at 12.
When attempting to clarify that the FOIA records were needed to support the application
for relief, the IJ stated:
Just a minute, just a minute, we don't do it that way. The reason we don't do it that
way is that's your minimal obligation is to have that, it's not the Court does not
continue the case for you to become minimally eligible. I mean the Court expects that
you need to have those things and there's no good cause just because your filing a
FOIA is not a good cause, you can't use the FOIA and say well we're still waiting for the
FOIA. No, you have to have those things in hand, that's what reasonably your expected
to have. You haven't shown that they were wiped out in some flood or there's so other
intervening cause and the Government right now is indicating that your not going
to be successful because there was no proper petition filed for her.
TR at 14.
After counsel for the government conceded that “well that’s not clear if he filed a
petition at that time but the letter is dated February 2001”, TR at 19, the IJ further stated:
Mr. XXXX, this is what you show me first you have it filed, you have the, receipt and it
doesn't meet the legal standard, it isn't before April 30, 2001, you don't wait until after I'm
with you. I am admonishing you now that this is not the proper way to proceed, you have
to be open and candid. I don't have to come down from the bench and do a figurative
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chasing you around the table to get you to stop and give up the information. That should never
occur, you should be telling me, we have this receipt, Your Honor, but we believe there's
good cause that she should be considered before April 30th. You don't tell me, you don't wait
until the end to say well, and by the way we have a receipt which shows that. Now Mr.
XXXX, the Court does not go with this, the same reason why you need to show me all of the
things up front and then state your case plain and simple as to what cause you think there is for the
Court to have reason to give you the continuance so that somehow this can be taken care of.
TR at 19-20.
Further, the IJ stated that “the Court doesn’t continue cases for just an application
for naturalization”, TR at 21, and “you have to have something, you can’t just come in
we’re hoping to find something in the FOIA”, TR at 23, and set the case for Individual
Calendar Hearing (ICH) on March 8, 2005. TR at 24.
March 8, 2008 MCH
On February 11, 2005, XXXX filed a motion for continuance of the March 8,
2005 ICH. With that motion, XXXX included facts and legal arguments regarding her
prima facie eligibility under INA § 245(i)(with exhibits) indicating that the December 22,
2004 pre-hearing statement submitted by the government included proof that an
application for adjustment had been filed on March 7, 2001, with proof of fee payment
for the adjustment and fingerprints. Further, the Court was advised that the FOIA
response received on January 31, 2005 showed that the adjustment had been denied on
August 14, 2001 on the grounds that XXXX had not paid a separate I-130 fee, and also
that a separate I-130 for XXXX had been filed with a date stamp of March 7, 2001.
RESPONDENT’S OPENING BRIEF - 8
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XXXX also noted that the government’s pre-hearing statement did not include the date of
the adjustment denial (nor a copy of the I-130).
The IJ denied the motion for continuance, and counsel XXXX again appeared at
the March 8, 2005 MCH. Despite the legal arguments made, the IJ denied an additional
request for continuance stating that “you’ve taken the approach to try to force the Court
to make an equitable estoppel decision with no real authority behind that…it’s not the
duty of the Court to figure out your legal strategy for you.” TR at 40. Further, after
counsel XXXX informed the IJ that XXXX did not wish to request voluntary departure
but would take a removal order for appeal, the IJ stated that “I'm stopping the proceeding, I
can't go ahead with the final order today with this lack of understanding of the law. I have to do so
but I have to tell you, you might need to consider getting a different attorney, not for the
arguments about the petition although that too. In my opinion effective counsel would have
considered the legal options to challenge the INS ruling that there was no petition filed. The
most difficult legal option was to ask the Immigration Court, there are other ways to
challenge the INS legally.” TR at 43. Further, the IJ stated that “I am not going to forward
anything to the Oregon State Bar or anything like that”, TR at 45, “but if I have a similar,
presentation next time, especially the lack of understanding about the matter of the voluntary
departure, the legal effects and how it works, I would feel compelled that I would have to
do that.” TR at 45. The IJ then reset the hearing for April 25, 2005.
April 25, 2005 Hearing
On April 21, 2005, XXXX filed an additional motion for continuance informing
the Court that XXXX’s LPR father had been rescheduled to retake part of naturalization
exam but had passed the rest. In addition, the Court was informed that CIS Portland, in
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response to a request by XXXX’s counsel to review the 245(i) eligibility issue, had stated
that ICE needed to be contacted regarding this issue now since “the case was with ICE”.
XXXX’s motion was denied and XXXX appeared with counsel Dan Larsson of
Larsson Immigration Group, PC. In informing the Court that case law supporting
XXXX’s position had been filed with the Court, and that the government had been
officially requested to respond but had not ruled on the request, the IJ stated that:
I don't really like to receive your correspondence directly with CIS. I think that is not
appropriate for a matter that I think in a way, it's not attorney-client but it kind of puts, if I
were them I'd say you know we're not going to have these discussions with you anymore,
we'll just send, because you disclose them to the Judge in the middle of our discussions that
we are trying to get something done and then you use it for the purposes of trying to get a
continuance is what happens. I noticed their letters and handwritten notes from Mr. XXXX
to Ms. Brinkman and frankly I don't think that's appropriate and if I were over there at CIS I'd
say everything has got to go by the book…” TR at 52.
After reviewing the case submitted to Court in support of XXXX’s position, the IJ
stated “I agree that it looks like you have some strong arguments there Mr. Larsson”, TR
at 53, and further stated to government counsel “Mr. Day, it does seem like a serious issue
and it seems like to me the Government if it doesn't recognize this, I mean, you would
expect at least more litigation and I'm not saying that Mr. Larsson would prevail, but it
looks like that”, TR at 53, and that “you gotten to the regulation that does exist here for
remedy for when you have incomplete fees”. TR at 54. Further, the IJ suggested a short
continuance to review the regulation at issue, TR at 54, and stating that “if the DHS doesn’t
think it applies, there should be some reason why it doesn’t apply in this particular case”,
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TR at 55, and “there’s a basis to provide the remedy for it”. TR at 55. However, since
XXXX’s LPR father had not yet passed his naturalization exam, the IJ did not grant further
continuances stating that “if she had current eligibility then I would grant a continuance to get
a definite statement as you said a more definite statement and darn it you kept asking me
for it and I kept looking through it and I don't make those definite statements on that but
I'm trying to understand it.” TR at 59.
After XXXX declined requesting voluntary departure, the IJ ordered XXXX
removed. XXXX reserved appeal. In his Oral Decision (Or. Dec.), the IJ stated that “the
only issue in the case for her is that she seeks a continuances on two grounds but that have to
be linked in order for her request for a continuances to be granted.” Or. Dec. at 1. First, the Court
found that there was not good cause for further continuances since XXXX’s father had not yet
passed his naturalization exam. Or. Dec. at 4. Further, the Court did not believe that it had equitable
authority to decide whether XXXX was eligible under INA § 245(i) but that this would need to be
decided by DHS. Or. Dec. at 4, and because XXXX’s father had not yet naturalized the Court did
not analyze this issue. Or. Dec. at 5.
After ICE counsel did not respond to a May 2, 2005 letter requesting ICE to contact CIS for
an opinion on the case, XXXX timely filed her appeal with BIA on May 17, 2005. XXXX’s father’s
application for naturalization is still pending.
VI.
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ARGUMENT
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a. Because the current appeal raises novel and complex issues of law,
a review by a three-member judicial panel is appropriate.
XXXX’s appeal raises significant legal and constitutional issues relating to
removal proceedings, notice requirements, and proper statutory interpretation. Because
one judge may only make minor modifications to and affirm the immigration judge's
decision, XXXX's case is thus inappropriate for summary review. 8 C.F.R.§1003.1(e)(4)
and (5). For these reasons, it is appropriate that a three-member panel review the current
appeal.
b. It was error for XXXX to not receive clarification, response or
ruling from the IJ or DHS as to the legal basis why XXXX could
not obtain a March 7, 2001 priority date nunc pro tunc to benefit
from Section 245(i) of the LIFE Act provisions of the Immigration
and Nationality Act (INA), and should have required the DHS to
produce the record of XXXX’s prior proceedings with DHS
The IJ should have required the DHS to produce the forms XXXX had filed with
Legacy INS, which Legacy INS had in its custody throughout the proceedings and still
has, which were essential to the issue of her eligibility under INA § 245(i). At the
beginning of XXXX’s removal proceedings she already had a case pending before DHS
with the I-130 that had been filed in October 2001 after Legacy INS in Portland Oregon
in August 2001 had returned her March 2001 application and directed her to file it with
the Nebraska Service Center. At that time, Legacy INS and the Executive Office for
Immigration Review, of which the BIA and IJ are a part, were still part of the Department
of Justice. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,
2002), ("HSA"), § 417. But even after the HSA abolished Legacy INS, its personnel and
functions continued to exist in much the same positions they had existed before. Indeed,
the Office of INS District Counsel became the Office of Chief Counsel of the DHS which
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continued representing the same interests that it represented prior to enactment of the
HSA. For all intents and purposes relating to XXXX’s case, access to documents and
files CIS or ICE held continued in the way it did before Legacy INS became CIS, ICE,
and CBP.
There is no rational reason why the IJ would impose the onus of producing
XXXX’s prior documents which XXXX filed with Legacy INS, and which DHS has
never denied having, on XXXX. Instead, the IJ could have issued a subpoena under
section §240(b)(1) of the INA provides that the IJ has authority to issue subpoenas for
attendance of witnesses and presentation of evidence. 8 C.F.R. §§1003.35(b), 287.4(a)(2),
1287.4(a)(2), Kaur v. INS, 237 F.3d 1098 (9th Cir. 2001)[Removal order reversed and IJ
directed to issue subpoena to compel the INS to produce resource material cited in INS’
referral of respondent’s asylum application to the IJ]; Matter of Duran, 20 I&N Dec. 1
(BIA 1989). Pursuant to 8 C.F.R. §1003.35, et seq., as well as 8 C.F.R. § 1287.4(a)(ii), et
seq., the IJ is authorized to issue a subpoena for ''the production of books, papers and
other documentary evidence, or both.'' Further, Section 1003.35 requires that the
applicant has made diligent effort, without success, to obtain the requested documentary
evidence and that the evidence is essential.
Here, XXXX’s counsel informed the Court at the first MCH that a FOIA request
had been filed but had not been received yet. TR at 4. When counsel then tried to clarify
why the documents expected to be included in the FOIA request were so important, the IJ
stated:
Just a minute, just a minute, we don't do it that way. The reason we don't do it that
way is that's your minimal obligation is to have that, it's not the Court does not
continue the case for you to become minimally eligible. I mean the Court expects that
you need to have those things and there's no good cause just because your filing a
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FOIA is not a good cause, you can't use the FOIA and say well we're still waiting for the
FOIA. No, you have to have those things in hand, that's what reasonably your expected
to have. You haven't shown that they were wiped out in some flood or there's so other
intervening cause and the Government right now is indicating that your not going
to be successful because there was no proper petition filed for her.
TR at 14.
As the IJ eventually conceded at the end of proceedings, the evidence sought by
XXXX was material and essential to the preparation and presentation of respondent's
application for relief.
Under 8 C.F.R. § 292.4(b), the ''record of proceeding'' is defined
as ''the official history of any ... proceeding before the Service, and in addition to the
application ... includes the transcript of the hearing or interview. exhibits, and any other
evidence relied upon in the adjudication ...''. Clearly, the IJ had the authority to order the
DHS to produce XXXX’s record under 8 C.F.R. § 1003.35 and the principles of
fundamental fairness embodied in the Fifth Amendment of the Constitution. See e.g. Chin
Yow v. U.S., 208 U.S. 8 (1908)(applicant for admission has a right to a fundamentally fair
hearing under DHS statutes and regulations). See also Matter of G-, 20 I&N Dec. 764
(BIA 1993)(administrative proceedings must conform to basic notions of fundamental
fairness); see also Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003) (noting that
"the test for admissibility of evidence . . . is whether the evidence is probative and
whether its use is fundamentally fair so as not to deprive the alien of due process of
law.") (quoting Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990)).
Requests for discovery are particularly important in immigration court
proceedings. Disclosure of DHS records does not interfere with immigration proceedings,
but, in fact, expedites matters by providing immigrants with information vital to their
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case. The judge, the DHS trial attorney, and the public all benefit from better-prepared
respondents.
Here, it was error for the IJ not to request that DHS produce XXXX’s files which
were known to be important to the issues, especially since the BIA has held that,
notwithstanding allocation of the burden of proof, the party with more ready access to
evidence should come forward with it. See e.g. Matter of Vivas, 16 I&N Dec. 68 (BIA
1977)(stating that the burden of going forward with the evidence may be placed on the
party having better control of the evidence). In addition, the BIA has also recognized the
trial attorney’s role in an asylum hearing to produce any relevant evidence that would
further adjudication of the individual’s asylum claim. See Matter of S–M–J–, Int. Dec.
3303 at 7–8 (BIA 1997). INA §240(c)(1) provides that “at the conclusion of the
proceeding the immigration judge shall decide whether an alien is removable from the
United States. The determination of the immigration judge shall be based only on the
evidence produced at the hearing.” Therefore, it is imperative that Respondents have
access to all files at the beginning which can then become part of the record. See e.g.
Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984)(an application for admission is a
continuing application and admissibility is determined on the basis of the law and facts
existing at the time the application is finally considered before the IJ).
Furthermore, under INA §240(c)(2), even when the alien bears a burden of proof
in the § 212 context, an alien has a statutory right to access to their file for the purpose of
proving either that they have been admitted to the country, or that they are admissible.
This section provides that:
“[i]n meeting the burden of proof under subparagraph (B), the alien shall have
access to the alien’s visa or other entry document, if any, and any other records
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and documents, not considered by the Attorney General to be confidential,
pertaining to the alien’s admission or presence in the United States.”
Clearly, XXXX was prejudiced by both the IJ and the failure of CIS and ICE to
act on XXXX’s requests for her files and to review her eligibility under Section 245(i).
The Ninth Circuit held 13 years ago that "Counsel for the government has an interest only
in the law being observed, not in victory or defeat in any particular litigation." Reid v.
U.S. INS, 949 F.2d 287, 288 (9th Cir. 1991). This record, on close scrutiny, does not
reflect an effort by counsel for Legacy INS, now the DHS, to uphold or observe the law.
Moreover, DHS could have exercised its prosecutorial discretion and refrained
from filing an NTA since XXXX has no criminal record, had never been in proceedings,
and had just turned 18 years old when the NTA was issued in October 2004, over 3 years
after her adjustment application had been denied and she did have a pending I-130 filed
with NSC. See e.g. Legacy INS Memorandum on Exercising Prosecutorial Discretion
dated November 17, 2000. But even assuming that CIS had its hands tied by itself when
it issued the NTA, vesting jurisdiction with the IJ and commencing removal proceedings
against XXXX, ICE counsel or CIS personnel failed to do what logic, their legal and
ethical obligations required especially after counsel for XXXX repeatedly requested that
her filed be looked at and even the IJ finally stated that “Mr. Day, it does seem like a serious
issue and it seems like to me the Government if it doesn't recognize this, I mean, you
would expect at least more litigation and I'm not saying that Mr. Larsson would prevail,
but it looks like that”. TR at 53.
What is more appalling than the DHS’ total failure to do anything is the IJ's own
turning the blame on XXXX, such as by stating that “you have to have something, you
can’t just come in we’re hoping to find something in the FOIA”. TR at 23. Ultimately,
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the IJ ordered an 18-year old woman whose parents had simply tried to go through the
immigration maze to help her obtain legal status and removed her to Mexico after
denying her a continuance so that her LPR could naturalize. Instead, the DHS suffered
no repercussion and did little to carry the day and the IJ let the DHS off the hook.
That aside, the record clearly establishes that Legacy INS took money from the
XXXXs on March 7, 2001. The IJ should at least have required the DHS to explain why
Legacy INS had issued a fee receipt showing that it had received money for an I-485
fingerprint fees, as well as stamped the I-130 on March 7, 2001, but waited until after
Section 245(i) eligibility to sunset before informing the XXXX’s that it could not
adjudicate her adjustment application.
c. It was error for the IJ or the DHS to not explain, clarify or rule on
the issue of XXXX’s eligibility under Section 245(i)
Congress enacted Section 245(i) of the Immigration and Nationalization Act
originally in 1994 to permit undocumented immigrants already in the United States to
stabilize their immigration status if they were related to persons who were in the United
States legally. The most recent filing period expired on April 30, 2001. Although it was
not referred to as an “amnesty program”, for those undocumented immigrants who
qualified under 245(i) they could adjust their status in the U.S. once a qualifying visa, such
as by a family relative, was filed on Form I-130, approved and the visa was available.
The central issue here is whether XXXX may benefit from Section 245(i)
although her “official” priority date is October 10, 2001 as a new I-130 was filed with the
NSC after Legacy INS in Portland denied her March 7, 2001 adjustment application on
August 14, 2001 due to not having included a new filing fee for the I-130.
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XXXX’s I-130 application filed on March 7, 2001 in conjunction with her
adjustment application was clearly “approvable when filed" as it was meritorious in fact,
and non-frivolous ("frivolous" meaning patently without substance), which is confirmed
by that her subsequent I-130 filed with NSC has now been approved.
The question then becomes whether XXXX may retain a March 7, 2001 priority
date despite not including a separate fee for the I-130? Under the Interim & Final
Regulations of the LIFE Act, see e.g. 66 Fed. Reg. 58, Pages 16383-16390 (March 26,
2001), an immigrant visa petition was considered "properly filed” for purposes of grand
fathering if the immigrant visa petition was physically received by the Service prior to the
close of business on or before April 30, 2001, or if mailed, postmarked on or before April
30, 2001. Moreover, the Federal Register is silent on the payment of filing fees but
merely states that “[t]he Service is applying the exception for grandfathering visa
petitions contained in the regulations at 8 CFR Sec. 103.2(a)(7), which require that a
petition must be physically received and stamped by the Service in order to be
considered properly filed.” Here, the record shows that XXXX filed a complete
application for adjustment of status on March 7, 2001, which was stamped and received
by Legacy INS in Portland. XXXX provided more than the minimum information
required by 8 CFR 103.2(a), and the qualifying petition (I-130) was submitted, signed
and completed correctly by XXXX’s LPR father.
As to Legacy INS’ policy on filing fees, in a memo issued on October 6, 1997 by
Paul Virtue, then Acting Executive Associate Commissioner Programs, the Service
stated:
A September 19, 1997, policy memorandum HQOPS 70/23.1-P, entitled “Section
245(i) Sunset,” instructed local offices to “accept all applications … delivered [to
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them through] September 30” and “not [to] pre-screen, or turn away any applicant
who believes that he/she has a claim of eligibility under section 245(i)” during
that time. The purpose of that policy was to prevent irremediable harm to any
eligible immigrant whose application might be inadvertently rejected while
termination of section 245(i) was imminent. It is expected that the local offices
will complete the adjudication of those applications which were in fact properly
filed under Service regulations. However, the local offices must now take
appropriate action on those section 245(i) applications, submitted from September
19 through 30, which did not meet the requirements for proper filing. Swift and
careful implementation of these instructions is essential in order to meet the
Service’s obligations and to afford applicants the maximum opportunity to
correct any deficiencies in their cases before the approaching sunset date for
benefits under section 245(i)(emphasis added).
Further, that same October 6 memorandum stated:
Since the September 19 “Section 245(i) Sunset” memorandum instructed local
offices to “accept all applications” and “not [to] pre-screen, or turn away any
applicant who believes that he/she has a claim of eligibility under section 245(i)”
prior to October 1, it is probable that prior to the receipt of this memorandum,
fees have been processed for some applications which were not properly filed.
Because of the exceptional circumstances discussed in the previous section,
local Service offices should immediately (1) review all fee processed section
245(i) applications received from September 19 through September 30, 1997, (2)
identify any which did not meet the requirements for proper filing, and (3) apply
to them the following procedures:
An application which is found to have been improperly filed solely because of the
unavailability of a required immigrant visa number, which has become available
on the October 1997 Visa Bulletin, should be recorded as filed in October when
the case review took place, and retained for completion of adjudication.
An application which is found to have been improperly filed solely because of the
unavailability of a required immigrant visa number which remains unavailable on
the October 1997 Visa Bulletin, should be retained by the office. A written notice
will be sent to advise the applicant regarding the reason for the rejection and the
initiation of a request for refund of the filing fee. After ensuring the validity of
the applicant’s fee check previously deposited, the Form G-266, Refund of
Immigration and Naturalization Fees, should be prepared and sent to the
Administrative Center having jurisdiction over the requesting office.
An application which is found to have been improperly filed solely because of
the lack of a proper signature or the correct fee should be returned immediately
with a written explanation of the reason for the rejection and a notice regarding
the initiation of a refund request and the importance of properly filing the
application, with all the required fees, prior to the new section 245(i) sunset
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date. The refund request will be processed as provided above. A copy of the
rejection notice will be retained in the office’s files for future reference.
(emphasis added).
The instructions set forth in the October 6, 1997 were confirmed in a subsequent
INS Memo issued by Michael Pearson on January 9, 1998, which stated that “[i]f you
have already processed the fee for an application which fails to meet the above
requirements, please follow the instructions in the October 6, 1997 memorandum which
described the procedures for rejecting such an application and refunding the applicant’s
fee(s).” In a subsequent INS Memo dated January 26, 2001 by Michael D. Cronin, it was
stated that “[t]he Service is adopting a similar approach to accepting applications and
petition up to the sunset date, as outlined in the January 9, 1998 memorandum…”
Further, in an INS Memo by William H. Yates dated April 30, 2001 on §245(i)
Postmarks, Filing & Fees, Legacy INS stated with regards to filing fees:
If the receipting is performed, the following guidelines should be followed:
If an applicant submits a single check for multiple applications and/or petitions
and the fee is incorrect, all of the applications should be returned to the applicant
and a receipt should not be issued.
If an applicant submits multiple checks for multiple applications and/or
petitions and the fee is incorrect on some of the applications, the applications
with the incorrect amounts should be returned. Receipts should be issued for
those with correct amounts.
In the case of multiple checks, where one application is dependent upon the
principal application being accepted, every attempt should be made to fee in the
principal application first followed by any riding applications. If the principal
application must be returned, all riding applications must be returned.
Applicants/Attorneys should be encouraged, during this period, to submit separate
checks for each application and/or petition to prevent the entire application
package from being returned for improper fees.
All offices should continue their normal practice with regards to the acceptance of
cash.
(emphasis added)
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Here, it is undisputed that XXXX’s adjustment application (with the I-130
included) was clearly stamped and receipted on March 7, 2001 by Legacy INS in
Portland. It was rejected on August 14, 2001 only because XXXX had failed to include a
separate filing fee for the Form I-130, not because XXXX was ineligible for adjustment
or because the I-130 was not approvable. XXXX’s father erroneously believed that he
had already paid the Respondent’s I-130 fee when he filed an I-130 for his son in 1998
and incorrectly listed XXXX and her sister on the second page of the I-130. This
rejection was clearly in error of the policies set forth above, as well as under regulations
in existence at the time.
For example, existing regulations at 8 CFR 103.2(b)(8) provide a process for the
Service to request additional evidence and to allow the petitioner a period of 12 weeks to
submit that additional evidence in support of the petition.” See 8 CFR 103.2(b)(8)
Request for evidence:
“If there is evidence of ineligibility in the record, an application or petition shall
be denied on that basis notwithstanding any lack of required initial evidence. If
the application or petition was pre-screened by the Service prior to filing and was
filed even though the applicant or petitioner was informed that the required initial
evidence was missing, the application or petition shall be denied for failure to
contain the necessary evidence. Except as otherwise provided in this chapter, in
other instances where there is no evidence of ineligibility, and initial evidence or
eligibility information is missing or the Service finds that the evidence submitted
either does not fully establish eligibility for the requested benefit or raises
underlying questions regarding eligibility, the Service shall request the missing
initial evidence, and may request additional evidence, including blood tests. In
such cases, the applicant or petitioner shall be given 12 weeks to respond to a
request for evidence. Additional time may not be granted. Within this period the
applicant or petitioner may:
103.2(b)(8)(i) Submit all the requested initial or additional evidence;
103.2(b)(8)(ii) Submit some or none of the requested additional evidence and ask
for a decision based on the record; or
103.2(b)(8)(iii) Withdraw the application or petition”.
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Moreover, the regulation in effect at the time of XXXX’s, 8 C.F.R. §
245.2(a)(2)(i) (2000) read:
Before an application for adjustment of status under section 245 of the Act may be
considered properly filed, a visa must be immediately available. If a visa would be
immediately available upon approval of a visa petition, the application will not be
considered properly filed unless such petition has first been approved. If an
immediate relative petition filed for classification under section 201(b)(2)(A)(i) of
the Act or a preference petition filed for classification under section 203(a) of the
Act is submitted simultaneously with the adjustment application, the adjustment
application shall be retained for processing only if approval of the visa petition
would make a visa immediately available at the time of filing the adjustment
application. If the visa petition is subsequently approved, the date of filing the
adjustment application shall be deemed to be the date on which the accompanying
petition was filed.
There does not appear to be any evidence that Legacy INS Portland made an
attempt to act itself, or inform XXXX that her application filed in March 7, 2001 was
incomplete since separate fees for the I-130 had not been included. Nothing in the FOIA
Request shows that Legacy INS Portland followed its own instructions or regulations per
above. See e.g. Dzandu v. Gonzales, 126 Fed. Appx. 354, 2005 U.S. App. LEXIS 3856
(9th Cir. 2005)(holding that the INS had violated its own regulations because it did not
notify the alien that she needed to amend her adjustment application to request
consideration under Section 245(i) of the INA, as required by 8 C.F.R. § 245.10(d)).
Moreover, on April 29, 2005 DHS announced a class action settlement in Ramos
v. Chertoff (02 C 8266, Northern District Illinois), where the Chicago Legacy INS office
had accepted I-485 applications under Section 245(i) even if the applications were
premature because a visa was not immediately available or defective because an
approvable visa petition had not been filed. Under the terms of the settlement, a
colorable I-130 means a visa was that was “approvable when filed”, and both CIS and
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ICE agreed to follow the standards set forth in a November 17, 2000 memorandum
written by Doris Meissner, former commissioner of Legacy INS (in essence, unless the
alien has a criminal record, prior immigration violations, few or no equities, or other
aggravating factors, the person should not be placed in proceedings), as well as the
October 6, 1997 and January 26, 1998 memoranda cited above. Further, among other the
DHS agreed to have ICE review cases were the person had already been placed in
proceedings, and keep and credit fees already paid for 245(i) filings.
On April 13, 2006, the U.S. Supreme Court adopted a historic rule change that
will allow citation to so-called “unpublished opinions” in federal courts starting next
year. The new rule takes effect unless Congress countermands it before December 1st.
XXXX squarely fits within the class in Ramos as her I-130 was clearly approvable when
filed but she could not have immediately adjusted since a visa would not have been
immediately available through her LPR father’s application. However, she will be able
to adjust as soon as her preference priority date becomes current or her LPR father
completes his pending naturalization (assuming she will be able to derive benefit under
245(i)).
Courts have held that regulations and actions which are inconsistent with the plain
statutory language and congressional intent are invalid. For example, in Hernandez v.
Reno, 91 F.3d 776 (5th Cir. 1996), the court held that a subsequent marriage, if otherwise
eligible, did not disqualify the person from Family Unity eligibility. Further, in Akhtar v.
Burzynski, 384 F.3d 1193 (9th Cir. 2004), the court invalidated the “age out” provisions
of 8 C.F.R. § 214.15(g), which terminated so-called “V” visas (as enacted by the LIFE
Act provisions of the INA) on the day before an applicant’s 21st birthday. The court in
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Akhtar held that 8 C.F.R. § 214.15(g) was inconsistent with Congress's intent when it
enacted the LIFE Act as Congress passed that Act to alleviate some of the burdens
imposed by the backlog of applications for immigrant visas for family members of
resident aliens by bringing immigrant families together throughout the permanent
residency petitioning process. By re-separating families, the court held that § 214.15(g)
was contrary to that congressional intent and frustrated congressional policy. In addition,
in Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 2004 (9th Cir. 2004)(reconsideration
denied 2005), the court held that it had jurisdiction to review the INS' statutory
interpretation of reinstatement of prior removal provision in order to determine whether
the INS had erred in barring Perez-Gonzalez's application for adjustment of status under
Section 245(i) based on its interpretation of the reinstatement provision by not
adjudicating waivers filed in conjunction with the adjustment application. Citing PerezGonzalez, the Ninth Circuit in Acosta v. Gonzalez, 439 F.3d 550 (9th Cir. 2006), held that
those who were eligible under 245(i) could adjust without any waiver even if subject to
INA § 212(a)(9)(C)(i)(I); See also Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141
(9th Cir. 2002) (holding that there is jurisdiction to review non-discretionary matters of
statutory interpretation by the BIA).
Here, XXXX’s LPR father attempted to obtain status for his minor children. Had
the Legacy INS Portland office acted according to its own instructions and policies, at the
minimum XXXX could have paid the I-130 filing fee before 245(i) sunset on April 30,
2001. Laws and regulations such as those cited in Ramos, Perez-Gonzalez, Acosta,
Hernandez and Akhtar share the same philosophy as that of Section 245(i) – to cure
possible immigration violations, and to promote fairness and family unity.
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The rule of lenity, or the principle that when any doubts exist as to the proper
interpretation of a statute or regulation it should be construed in favor of the alien, is a
longstanding principle. See e.g. Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).
It should be apparent that the government failed to follow its own regulations by
summarily rejecting the application by XXXX filed on March 7, 2001, and that she
should be able to retain the priority date of March 7, 2001 which is extremely important
to preserve 245(i) eligibility under the LIFE Act. Failure of agency to follow its own
rules is violative of due process. No showing of prejudice or harmful error is required.
See e.g. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Bridges v. Wixon, 326 U.S. 135
(1945); Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991) [“Careless observance by an
agency of its own administrative processes weakens its effectiveness in the eyes of the
public because it exposes the possibility of favoritism and of inconsistent application of
the law”]. The inability of XXXX to take advantage of Section 245(i) would be very
prejudicial to her, especially considering that she is only 19 years old and has no family
left in Mexico. For the reasons set forth, it was a violation of XXXX’s right to due
process and an abuse of discretion to at least clarify the 245(i) issue before ordering her
removed.
d. It was error for the IJ not to agree to further continuance of the
proceedings in order for ICE to clarify the 245(i) issue and for
XXXX’s LPR father to finalize his application for naturalization
which is currently still pending
At the end of XXXX’s proceedings, the IJ agreed that XXXX had good legal
arguments on the 245(i) issue but still declined further continuances since XXXX’s LPR
father had not yet passed his naturalization exam. TR at 59.
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In Benslimane v. Gonzalez, 430 F.3d 828 (7th Cir. 2005), the court concluded that
the alien was erroneously ordered removed simply because he had failed to submit a
duplicate Form I-485 to the IJ, which document the immigration authorities already
possessed and was peripheral to alien's claim that he should be allowed to remain in the
country by virtue of his marriage. Citing among other Subhan v. Ashcroft, 383 F.3d 591,
594 (7th Cir. 2004)(holding that IJ had violated the spirit of 245(i) when he denied
Subhan a continuance without giving a reason consistent with the statute), the court in
Benslimane found that as in Subhan, the issue was the IJ's improper foreclosure of the
alien’s opportunity to apply for adjustment of status without giving a clear reason
consistent with the applicable statutory provisions. Benslimane at 831. The reasons for
denial were reviewable, and the court stated that “[a]n immigration judge cannot be
permitted, by arbitrarily denying a motion for a continuance without which the alien
cannot establish a ground on which Congress has determined that he is eligible to seek to
remain in this country, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a), to thwart the congressional
design.” Benslimane at 832. Further, the court stated that “[w]e are not required to
permit Benslimane to be ground to bits in the bureaucratic mill against the will of
Congress.” Id. at 833.
As in Benslimane, XXXX acted with due diligence. After she was placed in
proceedings and obtained counsel to assist her, XXXX’s requests for continuances met
with either sharp language from the IJ or inaction by DHS. Even if an IJ may not be
obligated to continue a removal proceeding, he should exercise discretion favorably
unless the application is frivolous or the alien is ineligible for adjustment of status. "An IJ
may grant a motion for continuation in a deportation proceeding upon an alien's showing
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of 'good cause.' 8 C.F.R. § 3.29; see also 8 C.F.R. § 242.13 (empowering an IJ to grant 'a
reasonable adjournment' after the commencement of a hearing for 'good cause shown').
Significantly, an alien is generally entitled to the favorable exercise of an IJ's discretion
regarding a request for a continuance where the District Director has not yet adjudicated a
prima facie approvable visa petition (or XXXX’s LPR father’s naturalization
application). In XXXX’s case, neither the IJ or ICE counsel pointed to any single
impediment to approval of either XXXX’s I-130, eventual adjustment, or her father’s
naturalization application. In addition, nothing in this entire record, read reasonably,
supports a conclusion that XXXX or her conduct caused her predicament, with respect to
the filing of her application in March 2001. Nor does this record contain any evidence
that XXXX is not eligible for adjustment of status. For the reasons set forth, it was an
abuse of discretion and a violation or XXXX’s right to due process to deny further
continuance.
e. The IJ violated XXXX’s right to a full and fair hearing
The record establishes that until the end of proceedings, the IJ refused to hear
arguments as to why receiving the results of XXXX’s FOIA request was so important,
and also effectively threatened XXXX’s counsel with a bar complaint for insufficient
legal representation until the IJ agreed at the end of proceedings that XXXX had strong
legal arguments.
The Fifth Amendment guarantees due process in deportation proceedings.”
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999). “A neutral judge is one of the
most basic due process protections.” Castro-Cortez v. INS, 239 F.3d 1037, 1049 (9th Cir.
2001). An alien who faces deportation is entitled to a full and fair hearing of the alien’s
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claims and a reasonable opportunity to present evidence on his or her behalf. See 8
U.S.C. § 1229a(b)(4); Castro-Cortez, 239 F.3d at 1049.
Here, the IJ refused to hear arguments as to why the FOIA request was important
in XXXX’s case. The IJ made statements such as “you’ve taken the approach to try to
force the Court to make an equitable estoppel decision with no real authority behind
that…it’s not the duty of the Court to figure out your legal strategy for you,” TR at 40,
“in my opinion effective counsel would have considered the legal options to challenge the INS
ruling that there was no petition filed. The most difficult legal option was to ask the
Immigration Court, there are other ways to challenge the INS legally,” TR at 43, and “I am
not going to forward anything to the Oregon State Bar or anything like that”, TR at 45, “but if
I have a similar, presentation next time, especially the lack of understanding about the matter of
the voluntary departure, the legal effects and how it works, I would feel compelled that I
would have to do that.” TR at 45. However, at the end of proceedings the same IJ stated
that “I agree that it looks like you have some strong arguments there Mr. Larsson”, TR at
53, and further stated to government counsel “Mr. Day, it does seem like a serious issue and
it seems like to me the Government if it doesn't recognize this, I mean, you would expect
at least more litigation and I'm not saying that Mr. Larsson would prevail, but it looks like
that”, TR at 53.
The apparent prejudgment of the merits of XXXX’s case led him to deny XXXX
a full and fair opportunity to present evidence on her behalf, including that the IJ
effectively excluded relevant and probative evidence by not waiting for the FOIA results
to come back, order the government to get the files, or ask the government to explain its
position. See e.g. Colmenar v. INS, 210 F.3d 967, 971-72 (9th Cir. 2000) (holding that, as
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part of his right to a full and fair hearing, an alien is entitled to a “reasonable opportunity
to present evidence on his behalf”).
In order to show a due process violation, prejudice must be shown but the
standard does not demand absolute certainty; rather prejudice is shown if the violation
“potentially . . .affects the outcome of the proceedings.” Agyeman v. INS, 296
F.3d 871, 884 (9th Cir. 2002). Here, even the IJ eventually agreed that XXXX had strong
arguments and could prevail in potential litigation, yet threatened with bar sanctions on
the way to get to that point. For these reasons, XXXX did not receive a full and fair
hearing.
VII. CONCLUSION
In conclusion, XXXX was prejudiced by the proceedings and the prior actions (or
inaction) by Legacy INS and DHS. If XXXX’s LPR father becomes a citizen, she will be
able to immediately adjust under INA § 245(i) without the need for any waivers. XXXX
does not have any known grounds of inadmissibility which would prevent her from
adjusting her status. In the alternative, should her LPR father not be able to naturalize
due to his disabilities, her preference priority is not far off from being current. Based
upon the above, it would be in the interest of justice as well as judicial economy to find
that XXXX is qualified under INA § 245(i) and to order the termination, administrative
closure or holding the proceedings in abeyance.
Respectfully Submitted this _____ day of April 2006.
_______________________________
DAN R. LARSSON, OSB # 04199
Attorney for XXXX XXXX-XXXX
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CERTIFICATE OF SERVICE
Case Name:
File No.:
XXXX XXXX-XXXX
A# 78 739 805
I hereby certify and declare under penalty of perjury that, on March 8, 2016, I caused to
be served the following documents:
RESPONDENT’S BRIEF TO THE BIA
by placing a true copy thereof in a sealed envelope, with postage thereon to be
fully prepaid by normal government process and causing the same to be mailed by
certified mail, return receipt requested, to I.C.E. at the address set forth below;
by causing to be personally delivered a true copy thereof to the person at the
address set forth below;
by placing a true copy thereof in a sealed envelope, with postage thereon to be
fully prepaid by normal government process and causing the same to be mailed by
certified mail, return receipt requested, to the BIA at the address set forth below;
by telefaxing with acknowledgement of receipt to the persons at the address set
forth below:
Board of Immigration Appeals
Clerk’s Office
5107 Leesburg Pike
Suite 2000
Falls Church, VA 22041
Department of Homeland Security
ICE
District Counsel’s Office
P.O. Box 3361
Portland, Oregon 97208-3361
_______________________________
DAN R. LARSSON, OSB # 04199
Attorney for XXXX XXXX-XXXX
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