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Immigration Matters

Judicial Review Under Review

Judicial Review Under Review
by William K. Zimmer

The United States Supreme Court granted certiorari in a matter styled as Pankajkumar S. Patel, et al. v. Merrick B. Garland, No. 20-979. 

This is a case that deserves tracking in 2022 because the outcome will define the outer limits of jurisdiction relating to appellate court review of administrative decisions made by immigration authorities that impact common relief applications such as adjustment of status under section 245 of the Immigration and Nationality Act, as amended (“the Act”), cancellation of removal under section 240A of the Act, voluntary departure under section 240B of the Act,  and waivers under sections 212(h) and 212(i) of the Act.

Viability of a Motion to Reopen after Reinstatement of an in Absentia Removal Order

Viability of a Motion to Reopen after Reinstatement of an in Absentia Removal Order
by William K. Zimmer
Although Section 241(a)(5) of the Immigration and Nationality Act, as amended, expressly prohibits reopening or review of a reinstated removal order when an alien is removed and subsequently reenters the United States illegally, a motion to reopen and rescind an in absentia removal order based on lack of notice due to a defective notice to appear might be a pathway to relief from removal.

Judicial Review of Bias

Judicial Review of Bias
by William K. Zimmer
An Immigration Judge’s denial rate alone is insufficient to show bias.  In Daljinder Singh v. Garland (December 17, 2021) No.  19-60937, the Immigration Judge’s denial rate of asylum claims (203 out of 204 claims) was 99.5%.

Harmless Error

Harmless Error
by William K. Zimmer
Under a limited exception for immigration cases, even multiple errors can be harmless in favor of the government.  Perhaps, this reality reveals another connotation of the phrase, “comedy of errors.”

Forfeiture of Right to Notice

Forfeiture of Right to Notice
by William K. Zimmer
Failure of a respondent in removal proceedings to provide with a written record an address at which the respondent may be contacted respecting removal proceedings in immigration court will result in forfeiture of the right to notice ordinarily required under paragraphs (1) and (2) of section 239(a) of the Immigration and Nationality Act, as amended, and will be ordered removed from the United States in the respondent’s absence upon failure to appear at the scheduled removal hearing.

Changing Times

Changing Times
by William K. Zimmer
It might surprise some people who dream about open borders to know that the United States once had them.

United States Supreme Court Decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018) does not apply to an OSC

United States Supreme Court Decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018) does not apply to an OSC
by William K. Zimmer
The notice requirement that a Notice to Appear (“NTA”) must contain the time and place of the initial immigration court hearing to serve as sufficient notice, regardless of proper subsequent notice, established by the United States Supreme Court decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018) and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), does not apply to an Order to Show Cause (“OSC”) governed by former section 242B of the Immigration and Nationality Act of 1952, as amended.

Adverse Credibility Finding Results in Blanket Rejection of All Testimony

Adverse Credibility Finding Results in Blanket Rejection of All Testimony
by William K. Zimmer
On November 8, 2021, the Fifth Circuit Court of Appeal determined that an adverse credibility finding operates as a blanket rejection of every piece of testimony the applicant had offered and, therefore, precludes an asylum applicant from establishing a subjective fear of persecution as described in C.F.R. § 1208.13(b)(2)(i).  See Cabrera v. Sessions, 890 F.3d 153, at 159–60 (5th Cir. 2018).  Jeevithan Arulnanthy v. Garland (5th Cir. November 8, 2021) No. 19-60760.

Deficient NTA Does Not Cut Off Physical Presence Required for Voluntary Departure

Deficient NTA Does Not Cut Off Physical Presence Required for Voluntary Departure
by William K. Zimmer
A Notice to Appear (“NTA”) that does not specify the time and place of a respondent’s initial removal hearing does not end the accrual of physical presence for purpose of eligibility for voluntary departure at the conclusion of removal proceedings under section 240B(b) of the Act, even if the respondent is later served with a notice of hearing that specified the time and place of the initial removal hearing.

Much Ado About Nothing?

Much Ado About Nothing?
by William K. Zimmer

Attorney General Merrick B. Garland, on June 16, 2021, vacated previous attorney general decisions in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (now known as “A-B- I”) and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (now known as “A-B- II”)  and the attorney general decision in Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019)  (now known as “L-E-A- II”).  See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) and Matter of L-E-A- 28 I&N Dec. 304 (A.G. 2021).

At least in the Fifth Circuit Court of Appeal, this flurry of vacated decisions seems to be much ado about nothing.

An Approved Visa Petition Does Not Guarantee Success For Adjustment Applicants

An Approved Visa Petition Does Not Guarantee Success For Adjustment Applicants
by William K. Zimmer

Generally speaking, an applicant for adjustment of status to lawful permanent resident based on marriage to a United States citizen must successfully complete a two-step process:

  1. Obtain an approved visa petition, in part, by establishing a bona fide marriage to the satisfaction of the United States Citizenship and Immigration Services (“USCIS”) pursuant to section 204(a)(1) of the Immigration and Nationality Act, as amended (“the Act”).
  2. Obtain approval of an adjustment of status application by establishing admission or parole, eligibility to receive a visa, admissibility as an immigrant and the immediate availability of an immigrant visa, pursuant to section 245(a) of the Act.

Rejection of the “Inherently Unbelievable” Standard of Review of Motions to Reopen

Rejection of the “Inherently Unbelievable” Standard of Review of Motions to Reopen
by William K. Zimmer
The Fifth Circuit Court of Appeal has joined the Fourth Circuit Court of Appeal by rejecting the “inherently unbelievable” standard employed by the First, Third, Sixth, Seventh, Ninth, and D.C. Circuit Courts of Appeal with regard to the review of a motion to reopen to determine the existence of prima facie eligibility (i.e. legalese meaning superficial showing for the relief sought in a reopened proceeding.

Defective NTA is Insufficient Written Notice for the Purpose of Rescinding In Absentia Orders

Defective NTA is Insufficient Written Notice for the Purpose of Rescinding In Absentia Orders
by William K. Zimmer
Based on Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), the Fifth Circuit Court of Appeal has determined that, under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act (“the Act”), an in absentia removal order may be rescinded upon a motion to reopen filed at any time if the subject of such order demonstrates receipt of a defective NTA that does not contain the time and place of the initial hearing in accordance with section 239(a)(1)(G)(i) of the Act.

Sufficiency of a Defective NTA to Establish Jurisdiction and Revoke Parole Status

Sufficiency of a Defective NTA to Establish Jurisdiction and Revoke Parole Status
by William K. Zimmer

The United States Supreme Court published two decisions in which it determined that:

  1. Service of a Notice to Appear that does not contain the time and place of initial hearing does not trigger the stop time rule under section 240A(d)(1) of the Act; and
  2. Service of a Notice to Appear that does not contain the time and place of initial hearing cannot be perfected by subsequent service of notice containing the missing information (i.e. time and place of the initial hearing).

See Pereira v. Sessions, 585 U. S. ___ (2018) and Niz-Chavez v. Garland, 593 U. S. ____ (2021) No. 19–863 April 29, 2021, respectively.

Is a defective Notice to Appear sufficient to establish jurisdiction of an Immigration Judge and revoke parole status?

What You Don’t Need to Know About Aggravated Felonies

What You Don’t Need to Know About Aggravated Felonies
by William K. Zimmer

For immigration purposes, the term, “Aggravated Felony,” is a term of art.  It is defined under section 101(a)(43) of the Immigration and Nationality Act, as amended ("the Act").  If an alien in the United States is convicted of an aggravated felony such alien will become subject to removal and disqualified for common applications for relief from removal.  See Section 237(a)(2)(A)(iii) of the Act.

Based on United States Supreme Court precedent case law, a seemingly counterintuitive hypothetical approach must be used to classify an offense as an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184 (2013).  The result of this hypothetical classification approach is that administrative and judicial decision makers don't need to know what the convicted person actually did to be judged guilty of a crime. 

In other words, the real facts need not be known.

Compelling the Contrary Conclusion of Any Reasonable Adjudicator and the Last Resort

Compelling the Contrary Conclusion of Any Reasonable Adjudicator and the Last Resort
by William K. Zimmer

Persuading an appellate court to Interpret evidence in a way that compels a decision maker to reach a contrary conclusion is a daunting task.

So . . . what about deferred action?

Circular Reasoning in the Context of Asylum Claims

Circular Reasoning in the Context of Asylum Claims
by William K. Zimmer

Circular reasoning can be puzzling because, although it is generally known to be unreliable, it does not violate any rule of logic.  In other words, circular reasoning is not illogical.

Circular reasoning is not reliable because the conclusion rests exclusively on the initial premise without admitting evidence from another source or other sources to justify the veracity of the initial premise as well as other premises involved in the closed circle of logic.

The Law Underlying Catch and Detain, Catch and Release, or Catch and Return

The Law Underlying Catch and Detain, Catch and Release, or Catch and Return
by William K. Zimmer
Regardless of the policy opinion one might hold regarding discretion to detain, release or return aliens seeking asylum at the United States border, the exercise of such discretion must occur in the context of existing law entitled “Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing” under section 235 of the Immigration and Nationality Act, as amended (“the Act”) and parole authority under section 212(d)(5) of the Act.

Appellate Jurisdiction Over Motions to Reopen to Consider Discretionary Relief

Appellate Jurisdiction Over Motions to Reopen to Consider Discretionary Relief
by William K. Zimmer

With regard to immigration court proceedings, “[a]ny motion to reopen for the purpose of acting on an application for relief must be accompanied by the appropriate application for relief and all supporting documents.”  See 8 C.F.R. § 1003.23(b)(3).

Preparation of "supporting documents" in support of a motion to reopen to consider a discretionary relief application should be thorough and complete because the ultimate administrative decision might not be subject to appellate court review!

The Question of Nexus and Mixed Motives

The Question of Nexus and Mixed Motives
by William K. Zimmer

It seems that human beings rarely engage in any behavior without mixed motives.  

For this reason, asylum claims involving mixed motives of the alleged persecutor are common.

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