In the last two weeks, the United States Supreme Court issued two 9-0 decisions reversing U.S. Court of Appeals for the Ninth Circuit decisions related to immigration. The cases touched on removal / deportation proceedings for aliens in the United States legally and the subsequent effects on immigrants seeking certain benefits under the Immigration and Naturalization Act (“INA”). Alaska falls within the jurisdiction of the Ninth Circuit, where its decisions drive the way local Immigration Attorneys advise and represent U.S. Citizens and foreign nationals with ties to our state, who seek immigration and nonimmigration benefits under INA.
Risks Facing Deportation Without Local Legal Counsel
In United States v. Palomar-Santiago, decided May 24, 2021, a Mexican National lawfully residing in the United States as a Lawful Permanent Resident (“LPR”) was convicted of felony driving under the influence (“DUI”) in 1991. At that time, California’s trial courts considered DUI to be an “aggravated felony.” That category of conviction made a noncitizen LPR subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii). Following a hearing in 1998, the Immigration Judge (“IJ”) ordered Palomar-Santiago deported from the United States. He waived his right to appeal the order and was deported the next day. Some time later, he re-entered the United States without permission, and in 2017, he was charged with unlawful reentry after removal under 8 U.S.C. § 1326(a).
Challenging his unlawful reentry indictment, Palomar-Santiago sought relief under § 1326(d), which allows an accused to collaterally attack the underlying deportation order if the alien can prove three conditions: (1) administrative remedies available at the time were exhausted; (2) the opportunity for judicial review of the original order was lacking; and (3) the entry (e.g., removal) order was fundamentally unfair. Between Palomar-Santiago’s deportation in 1998 and his indictment in 2017, the Supreme Court ruled in 2004 a DUI conviction was not a crime of violence, and therefore, not an aggravated felony for purposes of removal under § 1227(a)(2)(A)(iii). Thus, Palomar-Santiago challenged his 1998 deportation order arguing his 1991 DUI in California was never an “aggravating felony,” therefore, the original removal order was invalid. Both the U.S. District Court and the Ninth Circuit found for Palomar-Santiago, holding he was excused from providing the first two elements of § 1326(d) because his felony DUI conviction did not provide a legal basis for removal in the first instance. The Supreme Court granted certiorari to hear the United States’ appeal on the decision because other Circuit Courts of Appeals did not follow the Ninth Circuit’s application of § 1326(d).
In a unanimous decision authored by Justice Sotomayor, the High Court reversed the Ninth Circuit’s interpretation of § 1326(d), finding the decision “incompatible with the text,” of the INA, which required a defendant charged with unlawful reentry under § 1326(a) to prove all three conditions under § 1326(d) to successfully challenge the underlying deportation order. Notwithstanding the IJ’s error in finding the DUI as a basis for the original removal, the Court found the Ninth Circuit erred in holding the IJ’s error waived Palomar-Santiago’s burden to have exhausted administrative remedies in appealing the deportation order (condition 1) and to show he was deprived the opportunity for judicial review of IJ’s removal decision (condition 2). These first two conditions were connected with the third by the conjunctive “and.” Further, such “mandatory language” used by Congress in a statute prohibits courts from excusing a party’s failure to exhaust an administrative remedy. Here, pursuit of administrative review from the Immigration Court to the Board of Immigration Appeals (“BIA”) was not possible because Palomar-Santiago expressly waived this right. Thus, judicial review at a federal court of appeals was also foreclosed by the waiver.
The second case, Garland v. Ming Dai, decided June 1, 2021, actually involved two petitions for review wherein foreign nationals appearing before an IJ in removal proceedings argued against deportation by seeking asylum. In the case of Alcaraz-Enriquez, he had been convicted of a serious crime making asylum unavailable as relief for removal. Before the IJ, he raised for the first time, however, the defense of his daughter in an attempt to mitigate his conviction of domestic violence against his girlfriend. The IJ found more credible the probation report written at the time of the prosecution, which lacked any mention of defendant’s daughter as a mitigating factor to the charge. Alcaraz-Enriquez was denied relief from deportation.
In Ming Dai’s case, he sought asylum to withhold removal back to the People’s Republic of China (“PRC”) for fear of future persecution for himself and his family under the PRC’s “One Child” policy. During the removal hearing, however, Mr. Dai was confronted with the fact his wife and daughter had returned to the PRC voluntarily. Further, he admitted his true reason for wishing to remain in the United States was because he did not have a job in the PRC thereby defeating his asylum claim. In both cases, the defendants provided testimonial evidence strongly rebutted by other facts, including Dai’s own contradictory testimony. Here, the IJ denied relief by relying on contrary evidence found to be more credible and reliable. Both defendants appealed to the BIA, which affirmed the IJ denials.
Upon judicial review by the Ninth Circuit, however, the appellate court held the IJ and BIA failed to make an explicit “adverse credibility determination” it claimed was required under the INA to rebut a presumption of credibility of the defendants’ testimony. The appellate court believed this “judge-made rule” imposed upon it the requirement to “treat the noncitizen’s testimony as credible and true absent an explicit adverse credibility determination” against it made on record by the IJ.
The Supreme Court reversed stating the Ninth Circuit “has long applied a special rule in immigration disputes” inconsistent with the INA as well as other federal circuit courts. The Ninth Circuit’s review involved making a credibility determination as to whether any testimony at the hearing by the aliens rebutted the agency’s finding, which is not the role set out in INA’s provision for judicial review. Questions of fact, such as those raised by conflicting evidence presented at both Alcaraz-Enriquez’s and Dai’s hearings, are reviewed by courts under INA’s highly deferential standard: “[A] reviewing court must accept ‘administrative findings’ as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary’.” The Supreme Court further explained although the BIA could not reject an alien’s evidence arbitrarily, as long as the record contains evidence a reasonable factfinder could find sufficiently contrary, the reviewing court could “not overturn the agency’s factual determination.” It is of no consequence if the BIA accepts some and rejects other parts of an alien’s evidence; the agency’s reasonable findings cannot be disturbed by the reviewing court.
The Court recognized the INA does provide for a presumption of credibility of an applicant or witness in the absence of an IJ’s explicit adverse credibility determination on appeals to the BIA. But, under the INA, there is only one “appeal,” and that is of the IJ’s decision to the BIA. In contrast, judicial review of removal orders are by “petition for review” where a court makes a deferential review of an agency’s factual determinations but not a credibility determination of the facts presented at the hearing. That falls to the IJ, who “actually observes the witness” and assesses the alien’s credibility in the first instance. On appeal, the BIA is best situated to review the case facts commonly found in immigration cases and to override the IJ’s findings of facts and apply the presumption of credibility favorable to the alien where the IJ omitted an explicit adverse credibility determination.
How Experienced Immigration Attorneys Could Have Helped
Both decisions highlight the need for competent, knowledgeable immigration counsel from start to finish when applying for or seeking to retain immigration benefits under the INA. In Palomar-Santiago, the lack of an immigration attorney meant his waiver of appeal in 1998 also foreclosed his right to judicial review. Years later in 2017, two of the three conditions for challenging the underlying deportation order were unavailable to him in the subsequent removal action because of his singular choice in 1998. Furthermore, in this removal proceeding, having local counsel was key to ensure a complete understanding of the elements of the state’s DUI charge to determine if it met the definition under INA as an “aggravating felony” as a basis for removal. Likewise, Dai demonstrates how the absence of legal counsel in defending against removal and asserting a claim for asylum can have disastrous results. An immigration lawyer could have assisted Dai in preparing him to meet his evidentiary burden before the IJ of proving his asylum claim despite the unfavorable facts regarding his wife’s and daughter’s voluntary return to the PRC.
If you are facing deportation or seek to appeal an IJ’s removal order to the BIA, call PLGPC for a complimentary consult and assessment of your case. As these recent rulings show, there are significant consequences of pursuing immigration benefits on your own and without a local immigration attorney.