News from the Courts

Posted on: October 23rd, 2017
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CA5 Finds Petitioner’s Failure to Brief Her Ineffective Assistance of Counsel Claim Constituted Waiver of the Claim

Maria Lowe, a native of Mexico, entered the United States unlawfully in 1996. Though she received an adjustment of status in 2007 from illegal alien to lawful permanent resident, in October 2010, she was convicted of aiding and abetting the improper entry of an alien which prompted the Department of Homeland Security (DHS) to initiate removal proceedings. The aiding and abetting charge validated DHS’s removability claims, as under section 8 U.S.C. § 1227(a)(1)(E)(i), aliens are removable if they have consciously within five years of their date of entry “encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” DHS reached the conclusion that her adjustment of status in 2007 constituted her entry into the country, rendering her subject to removal. Lowe conceded that she did have her change of status in 2007, and at her removal hearing, contested her 2007 conviction to the Immigration Judge (IJ). The IJ concluded that her change of status was considered her date of entry and her 2010 conviction, therefore, qualified her as removable. Lowe then appealed to the Board of Immigration Appeals (BIA) not regarding her date of entry, but whether her 2010 conviction fell under the umbrella of Section 1227. Finding her claim to have no merit, the Board of Immigration Appeals dismissed her appeal in March 2015.

In June of the same year, Lowe filed a motion to reopen with the BIA, on the grounds of ineffective assistance of counsel (IAC), claiming that her attorney failed to properly represent her when her attorney failed to question the date of her entry, questioning only whether her conviction dictated her removability. The BIA was not convinced, denying her motion to reopen in August 2015. Lowe then filed a motion for reconsideration, echoing her assertion that she received ineffective assistance of counsel. In October 2015, the BIA remained unpersuaded, rejecting her motion, and Lowe filed an instant petition for review asserting the BIA’s error in rejecting her argument regarding her date of entry.

The Fifth Court of Appeals was tasked with assessing whether the BIA improperly denied her motion to reconsider with respect to her subsequent motion to reopen. Since the BIA has the authority “to deny a motion to reopen even if the party moving has made out a prima facie case for relief,” it is extraordinarily difficult for the Court of Appeals to overturn its decision. It can only overturn such a decision if it is fundamentally irrational, incongruent with the evidence, or other such erroneous error.

A fundamental aspect of reopening a matter is the presentation of new evidence which, for some reason, could not be presented at previous hearings, and is supporting of the claim. Lowe failed to produce any such evidence in her motion to reopen, but she did claim IAC, which is another ground for reopening a matter. This was insufficient as well, as Lowe fundamentally waived this claim before the court. In both her motion to reopen and her motion to reconsider the BIA, she made her strong assertions of IAC, yet she then stated the validity of the IJ’s initial determination regarding her date of entry. Furthermore, she did not provide any evidence supporting her claim, she mentioned it nominally in her opening brief and failed any mention of it in her petition for review. This omission in brief on appeal qualifies as a waiver. Accordingly, the Court of Appeals denied her petition of review.

For more information, view the full case.

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BIA Says Noncitizen Seeking to Qualify for Exception to Inadmissibility Under INA §212(a)(6)(A)(ii) Must Be a VAWA Self-Petitioner 20

Cirilo Garcia initially entered the United States in 2003 from his native Honduras, and he had his in absentia removal ordered on October 24 of that year. He eventually left the country in 2005, but he claimed that once he returned to Honduras he faced persecution for his unpopular political beliefs, specifically his stance against deforestation. He stated that he was kidnapped and beaten as a direct result of these beliefs, which, in 2014, caused him to flee to the United States. He was apprehended by Border Patrol and sought asylum, based on his credible fear of persecution and torture for his political beliefs if he were to return to Honduras. In June 2014, the Chicago Asylum office issued a positive reasonable fear determination, affirming the credibility of his fear of persecution, referring his case to an Immigration Judge (IJ) for withholding-only proceedings. In September of the same year, Garcia filed an asylum application in Immigration Court. Later, in October, the Immigration Judge granted statutory withholding of removal to Garcia on the grounds of his past persecution and the likelihood of similar persecution in the future if he were to return to Honduras. The IJ stated that she did not have the authority to determine whether Garcia’s removal order should be reinstated, after which Garcia appealed to the Board if Immigration Appeals (BIA) asserting his statutory right to seek asylum. In July of 2016, the BIA dismissed the appeal, explaining that it was not authorized to declare the controlling regulations violated the statute. The BIA did mention that “several courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.

Though the general asylum statute permits the granting of asylum to any alien present in the United States without restriction based on status, as long as they qualify for the relief, the Attorney General cited specific language in the statute which restricts aliens who are subject to a reinstated order of removal from relief. Since asylum qualifies as a type of relief, the Attorney General asserted that Garcia is ineligible. The Attorney General also asserted that Garcia lacked the ability to file a petition, due to a precedential decision which stated that asylum is a type of discretionary relief, in which “there is no liberty interest at stake.”

The Court overruled an aspect of this precedential decision. Though the court could in no way guarantee Garcia’s asylum application, it could order the Attorney General to grant him the right to apply. However, the Court rejected Garcia’s petition for review based on the Attorney General’s initial argument. Garcia did not qualify based on the specific language of the statute, which disqualifies aliens who are subject to a reinstated order of removal from relief.

For more information, view the full case.

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