News From the Courts

Posted on: April 20th, 2017
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Fourth Circuit to Hear Trump Travel Ban Case in May

The full bench of the Fourth Circuit court of appeals is set to consider the legality of President Trump’s revised travel ban executive order. The Court of Appeals stated that it will be conducting on May 8th an en banc hearing in Richmond on the appeal by the federal government of a Maryland-based judge’s ruling which blocked Trump’s ban on issuance of visas to citizens of six majority-Muslim countries.

The en banc hearing will involve 15 judges hearing the case, compared to normal appeals which go before a three-judge panel. When the hearing was announced, details about the reasons for conducting this type of hearing were not disclosed. The academic and refugee groups who initiated this lawsuit both support this decision, and the Justice Department stated its support for the decision, dependent upon no delay coming from it.

A parallel appeal of a Hawaii- based judge’s ruling is being considered by another federal appeals court. The ruling blocked the visa ban, along with other provisions in Trump’s executive order including a suspension in admission of refuges from across the world. The Ninth Circuit Court of Appeals has scheduled a three-judge panel to hear the case on May 15th in an effort to expedite the appeal. While an en banc review has yet to be scheduled, it remains a possibility moving forward.

These decisions could be appealed further to the Supreme Court, or if one or both injunctions are not lifted by the lower courts, Trump’s administration can ask the justices to issue an emergency order allowing the executive order to take effect while the case is litigated in the high court.

The judges in both Maryland and Hawaii blocked the key aspects of Trump’s revised executive order just one week after the president issued his revised order on March 6th.

For more information, view the full article.

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Second circuit defers to BIA’s decision in matter of F-P-R to calculate asylum applicant’s “last arrival” in the United States.

Linares-Urrutia, a native and citizen of El Salvador, entered the United States in 1988 and has lived in the country off and on for the last 30 years. The same year as initial entry, he was deported and illegally reentered shortly thereafter. In 1995, he was apprehended while reentering the country illegally from Canada, and he was granted delayed voluntary departure. In 2011, the Department of Homeland Security reinstated the 1988 removal order and removed him back to El Salvador. He was charged with four criminal offences in the time between his arrival in 1988 and his removal in 2011. These charges included larceny and unlawful entry in Virginia in 1994, criminal mischief with intent to damage property in New York in 2004, and seventh-degree criminal possession of cocaine in New York in 2007.

Following his 2011 removal, Linares-Urrutia again illegally reentered the United States. Then, on April 25, 2012, apparently seeking revival of his asylum case in Canada, he walked across the Peace Bridge, and upon his entry, was detained by Canadian border authorities for approximately four hours.  He produced a document reflecting this fact, which stated that he “Departed Canada from Ft. Erie” on April 25, 2012.

The most recent instance of the Department of Homeland Security initiating removal proceedings took place in 2013. In response, Linares-Urrutia filed (pro-se) a petition for asylum, withholding of removal, and relief under the Convention Against Torture. He was his only witness during the proceedings before the Immigration Judge and then the Board of Immigration Appeals (BIA).

All of Linares-Urrutia’s claims centered around his assertion that the Salvadorian government tortured and abused him in the 1980’s when he was a member of a revolutionary student group. He testified that the military in El Salvador shot him in the leg, detained him, repeatedly beat him up, applied electricity to his genitals, and threatened to murder him. While there is a different regime in the Salvadorian government, he felt that he would still fear persecution due to the belief of his former fellow revolutionaries that he cooperated with the former regime and will thus seek revenge upon him.

The Immigration Judge denied his claims and, once again, ordered his removal on August 21, 2013. The IJ ruled Linares-Urrutia’s asylum claim to be time-barred, and denied his other claims due to a lack of sufficient evidence supporting his eventual persecution upon his return to El Salvador. The Board of Immigration Appeals affirmed this ruling in parts and remanded in others. Since the Canadian border document was not presented to the IJ, the Board upheld the untimeliness conclusion. The BIA decided, however, that the IJ did not adequately indicate a lack of credibility to Linares-Urrutia’s testimony. As a result, the Board remanded it to the IJ for a new credibility finding. The Immigration Judge, on remand, found that Linares-Urrutia did in fact face persecution in the 1980’s which was politically motivated. The Judge felt, however, that there was insufficient evidence indicating potential persecution due to political beliefs or any future persecution in any capacity. It was during this remand that the Canadian border document was submitted to the court, but the topic of timeliness of the asylum claim was not broached by the IJ in his remand decision. The BIA agreed with all of the IJ’s decisions on the next appeal. It also stated that since Linares-Urrutia failed to introduce adequate evidence of his trip to Canada, his claim that his asylum application was timely was specifically rejected.

The Court of Appeals reviewed the BIA and IJ decisions in tandem by reviewing applications of law to fact de novo, which limited the scope of its jurisdiction. Due to this, the factual determinations of the Immigration Judge were not capable of being reviewed. The IJ rejected Linares-Urrutia’s claims for asylum based on future persecution, withholding of removal, and relief under the Convention Against Torture for factual reasons, and thus the Court of Appeals dismissed these parts of his appeal due to lack of jurisdiction. The remaining decision available for review was Linares-Urrutia’s claim for “humanitarian asylum”. This claim can be made by an individual who has undergone persecution in the past, but it does not address any fear of future persecution. The BIA affirmed that Linares-Urrutia experienced past persecution, so the issue of contention causing denial of the claim for the Board was timeliness. The Immigration Nationality Act places a one year period, beginning with the immigrant’s last arrival into the country, during which one can file an asylum application. Therefore, the identification of his return from his trip to Canada on April 25, 2012 as his “last return” would classify his April 18, 2013 application as “timely”. The length of that trip is highly determinant of this identification. Guidelines dictate that returning from a brief trip abroad would not be considered a “last return”. Citing a precedential case which ruled that a man travelling to Mexico for about a month to attend a funeral was not a long enough period of time to be considered a “last arrival”. Applying this decision to Linares-Urrutias, therefore, his 4-day trip to Canada would not constitute a “last arrival”.

The documentation of Linares-Urrutia’s trip to Canada was not presented to the IJ initially, so the BIA accepted the initial finding that Linares-Urrutia failed to demonstrate his last arrival in 2012. However, the BIA remanded the case solely based upon Linares-Urrutia’s claim of past persecution and likelihood of future persecution; the IJ did not reconsider whether or not Linares-Urrutias “last arrived” after his return from Canada. The BIA order initially set forth a specific purpose for the remand, it did not, however, explicitly limit the scope of this remand.

The court of appeals rejected the review of past and probable persecution and granted a review of the timeliness of the application and remanded the decision to the Board of Immigration Appeals.

For more information, view the full case.

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Second Circuit Finds There Is No Constitutional Requirement to Weigh the Proportionality of Removal Against the Grounds for Removability

A native and citizen of Ecuador sought review of a May 2015 order of the Board of Immigration Appeals (BOA) and the underlying January 2014 Immigration Judge (IJ) decision which found him removable based on his unlawful entry to the country. The Court of Appeals faced the issue of whether either the due process clause of the Fifth Amendment or the prohibition by the Eighth Amendment of cruel and unusual punishment required consideration of the proportionality of removal against the grounds of removability. Since removal itself is not punitive and no fair notice considerations are present, the Court of Appeals found this consideration to be unnecessary.

Antonio Paul Marin-Marin entered the United States in 2013 at the age of 17 as an unaccompanied juvenile entering the country to live with his mother in Connecticut. The United States Department of Homeland Security charged Marin-Marin as subject to removal based upon his unlawful presence in the United States. Marin-Marin conceded removability and declined to apply for relief from removal. He instead moved to have his removal proceedings terminated, arguing his removal would be disproportionate to the ground for his removability. Thus, he asserted that his removal would be considered either excessive punishment violating the Fifth Amendment’s Due Process Clause.  The Immigration Judge concluded that the constitutional arguments made by Marin-Marin and a proportionality analysis were outside of his jurisdiction. This decision was affirmed by the Board of Immigration Appeals without opinion, and Marin-Marin filed a timely petition for review of that decision.

The respondent’s argument centers around the agency’s requirement to conduct a proportionality assessment to determine whether his removability would be an excessive punishment in comparison to the noncriminal ground for his removal. The Court of Appeals fundamentally refuted this assertion, holding that there is no constitutionality to this obligation of an assessment.

The Court of Appeals stated the cruel and unusual punishment clause of the Eighth Amendment was not applicable to Marin-Marin’s removal, due to deportation, at its essence, being a civil procedure and not a punishment. The government sought for his removal based upon his unauthorized presence, not criminal action. Even if his removal was a result of a criminal act, the removal would not be punitive reaction to the criminal act, but it would rather be holding the individual to the terms under which he was admitted. If his deportation is not fundamentally a punishment, then it naturally cannot be considered a cruel or unusual punishment.

For these reasons, the Court of Appeals found Marin-Marin’s argument to be flawed, and it denied his petition for review.

For more information, view the full case.

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AAO Sustains Appeal on a Multinational Manager I-140 Denied by the NSC

The Administrative Appeals Office (AAO) reaffirmed the denial of an I-140, Immigration Petition for Alien Worker, by the Nebraska Service Center because it found that the petitioner did not adequately demonstrate that it would employ the Beneficiary in a managerial position. The petitioner, a multinational technology based product development corporation, sought the I-140 for the Beneficiary to hold the position of Director of Financial Planning and Analysis. The petitioner appealed, stating that it employed the Beneficiary in a position with the same title as the offered position since 2013 as an L-1A nonimmigrant. In denying the petition, the Director misstated facts and abused his discretion, the petitioner asserted. The paramount issue of contention in the case, according to the Administrative Appeals Office (AAO), centered around whether the Petitioner effectively established that the Beneficiary would be employed in a qualifying “managerial position” as defined by the Act, and more specifically, the Petitioner’s plans for the Beneficiary’s eventual management of an “essential function” within the organization. The AAO sustained the appeal.

Important to the Appeals Office’s decision was the definition of “managerial position” which is described, in part, as a worker who, “supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;”.  The managerial position can be subdivided into both “personnel managers” as well as “function managers”. Personnel managers are marked by monitoring and controlling the work conducted by supervisory, managerial, or professional positions, while function managers are responsible for managing an “essential function” within the business and oversee personnel only in a capacity that is related to managing the function. In defining an “essential function”, an individual must describe the specific activity which he or she will manage, and establish that that activity is core to the petitioner’s business.

Once the essential function has been defined by the petitioner, it is then the petitioner’s obligation to demonstrate how the beneficiary will fulfill this duty by providing a detailed outline describing in detail the allocation of time which will be dedicated to each facet. The beneficiary is allowed a small proportion of time to be allotted for operational or administrative tasks, but the primary focus of the beneficiary should be the essential function.

The AAO felt that the petitioner adequately provided evidence supporting all of these criteria. The petitioner demonstrated financial planning and analysis to be an essential and clearly defined aspect of its business, by generating data accurately assessing global revenue, the beneficiary would be providing the company with financial strategies optimizing business opportunities and growth. It also provided sufficient evidence which indicated that the beneficiary would be in charge of managing the essential function. The petitioner also demonstrated the beneficiary would hold a senior level position, having discretionary authority over the day to day operations associated with the essential function. The AAO thusly sustained the petitioner’s appeal.

For more information, view the full case.

 

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